MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Aug 28 2019, 9:18 am

court except for the purpose of establishing                                    CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Courtney L. Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Toni McClellan,                                          August 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-11
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Elizabeth A. Christ,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G24-1805-F6-16615



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019                     Page 1 of 6
                                          Case Summary
[1]   Toni McClellan (“McClellan”) pleaded guilty to Operating a Vehicle While

      Intoxicated, Endangering a Person, With a Prior Conviction, a Level 6 felony. 1

      On appeal, she presents the issue of whether her sentence is inappropriate. We

      affirm.



                                 Facts and Procedural History
[2]   On May 7, 2018, Indiana State Police Trooper Cameron Bottema responded to

      a report of a single vehicle crash near Franklin and Indian Creek Roads in

      Marion County. McClellan was the sole occupant of the vehicle. She

      submitted to a chemical blood alcohol test and was found to have a blood

      alcohol content of 0.241 grams of alcohol per 210 liters of breath.


[3]   On December 5, 2018, McClellan pleaded guilty to Operating a Vehicle While

      Intoxicated, Endangering a Person, with a Prior Conviction. Pursuant to the

      plea agreement, the State moved to dismiss a charge of Driving While

      Intoxicated, with a blood alcohol content of 0.15 or greater, and agreed to forgo

      filing a habitual substance offender allegation against McClellan.


[4]   On the same date, McClellan received a sentence of two and one-half years

      (910 days). She was ordered to serve 180 days at the Marion County Jail and




      1
          Ind. Code §§ 9-30-5-2 - 3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019   Page 2 of 6
      185 days in Marion County Community Corrections Home Detention, with

      545 days suspended to probation. Additionally, the trial court advised

      McClellan that, upon successful completion of her probationary term,

      alternative minimum sentencing might be implemented. McClellan now

      appeals.



                                   Discussion and Decision
[5]   Pursuant to Indiana Code Section 35-50-2-7, a person who commits a Level 6

      felony shall be imprisoned for a fixed term of between six months and two and

      one-half years, with an advisory sentence of one year. Finding McClellan’s

      criminal history to be an aggravating factor, the trial court imposed the

      maximum sentence of two and one-half years, but then suspended 545 days to

      probation.2 The prior history consisted of one forgery conviction and four

      driving while intoxicated convictions. McClellan contends that her sentence is

      inappropriate, because she is allegedly a survivor of domestic abuse and no-one

      was injured in the single vehicle accident.


[6]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the

      Court finds that the sentence is inappropriate in light of the nature of the offense

      and the character of the offender.” In performing our review, we assess “the




      2
       The trial court stated that it had given consideration to the fact that McClellan had a difficult and painful
      divorce the prior year.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019                         Page 3 of 6
      culpability of the defendant, the severity of the crime, the damage done to

      others, and myriad other factors that come to light in a given case.” Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

      an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve

      our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d

      157, 165 (Ind. 2017).


[7]   The “considerable deference” given to the trial court’s sentencing judgment

      “should prevail unless overcome by compelling evidence portraying in a

      positive light the nature of the offense (such as accompanied by restraint,

      regard, and lack of brutality) and the defendant’s character (such as substantial

      virtuous traits or persistent examples of good character).” Stephenson v. State, 29

      N.E.3d 111, 122 (Ind. 2015) (citing Cardwell, 895 N.E.2d at 1222). In our

      review, we can consider whether a portion of the sentence was suspended or

      otherwise crafted to provide leniency. Davidson v. State, 926 N.E.2d 1023, 1025

      (Ind. 2010).


[8]   The nature of the offense involves the details and circumstances of the crime

      and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.

      2017). Here, McClellan operated a vehicle with a blood alcohol content three

      times the legal limit.3 She swerved to avoid traffic and her vehicle left the

      roadway, endangering herself and potentially other motorists. As she observes,




      3
          See Ind. Code § 9-30-5-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019   Page 4 of 6
       no injuries were reported from the single vehicle accident. Notably, however,

       McClellan was not charged with, or sentenced for, an offense having an

       element of bodily injury.


[9]    The character of the offender is found in what courts learn of the offender’s life

       and conduct. Id. McClellan’s decision to plead guilty indicates some

       acceptance of responsibility for her actions; however, she also received a

       significant benefit when one charge was dismissed and the State agreed to forgo

       a habitual substance offender allegation. McClellan advised the trial court that

       she had been harassed and abused by a former spouse, and the harassment had

       ceased upon the former spouse’s remarriage. But McClellan had been offered

       rehabilitative services in the past, without success. She was barely released

       from probation on her fourth driving while intoxicated conviction when she

       committed the instant fifth offense. This was her third such conviction in two

       years. Even so, she was afforded additional leniency in the structure of the

       sentence, which includes home detention and probation.


[10]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision. Accordingly, we decline to disturb the sentence

       imposed by the trial court.



                                               Conclusion
[11]   The sentence imposed upon McClellan is not inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019   Page 5 of 6
[12]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019   Page 6 of 6
