Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                      Dec 18 2014, 8:49 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

CARLOS I. CARRILLO                                 GREGORY F. ZOELLER
Lafayette, Indiana                                 Attorney General of Indiana

                                                   MONIKA PREKOPA TALBOT
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMES D. HARRAL, JR.,                              )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 79A05-1404-CR-192
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                 APPEAL FROM THE TIPPECANOE SUPERIOR COURT 6
                        The Honorable Michael Morrissey, Judge
                          Cause Nos.: 34D06-1307-FD-159;
                                       34D06-1307-FD-147


                                       December 18, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        James D. Harral, Jr., appeals his eleven-year sentence for two counts of Class D felony

operating a vehicle while intoxicated with a prior conviction1 and one count of Class B

misdemeanor battery,2 with a sentencing enhancement for Harral’s admission he is an

habitual substance offender (“HSO”).3 We affirm.

                          FACTS AND PROCEDURAL HISTORY

        On July 16, 2013, Harral consumed alcohol at his father’s house. Later that day, his

father suffered a fatal heart attack. While intoxicated, Harral attempted to follow his father’s

ambulance to the hospital. The police stopped Harral before he left the property and detained

him. Harral’s blood alcohol content was 0.14 percent at that time. The State charged Harral

with two counts of Class C misdemeanor operating a vehicle while intoxicated4 and two

counts of Class D felony operating a vehicle while intoxicated with a prior conviction, and

the State alleged Harral was an HSO. Harral was released on bail.

        On July 24, 2013, Harral’s sister called police because Harral was driving while

intoxicated. Police located Harral and placed him under arrest. While at the hospital to

obtain a blood draw to determine his blood alcohol content, Harral stroked a nurse’s

buttocks. Harral’s blood alcohol content was 0.25 percent. The State charged Harral with

two counts of Class A misdemeanor operating a vehicle while intoxicated,5 one count of


1
  Ind. Code § 9-30-5-3 (2013).
2
  Ind. Code § 35-42-2-1(b)(1) (2013).
3
  Ind. Code § 35-50-2-10 (2013).
4
  Ind. Code §§ 9-30-5-1(a) and -2(a) (2013).
5
  Ind. Code §§ 9-30-5-1(b) and -2(b) (2013).

                                               2
Class D felony operating a vehicle while intoxicated with a prior conviction, and one count

of Class B misdemeanor battery, and it alleged Harral was an HSO.

         On February 12, 2014, Harral entered a guilty plea to two counts of Class D felony

operating a vehicle while intoxicated with a prior conviction and Class B misdemeanor

battery. He admitted he was an HSO. The State dismissed the other charges against Harral,

and the plea agreement left sentencing to the discretion of the trial court. On March 19, the

trial court sentenced Harral to three years for one count of Class D felony operating a vehicle

while intoxicated with a prior conviction; two and one-half years for the other count of Class

D felony operating a vehicle while intoxicated with a prior conviction; and 180 days for

Class A misdemeanor battery. The court ordered all three to run consecutively and enhanced

Harral’s sentence by five years based on his adjudication as an HSO, for an aggregate

sentence of eleven years, with three years suspended to probation.

                               DISCUSSION AND DECISION

         We may revise a sentence if it is inappropriate in light of the nature of the offense and

the character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008)

(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found

by the trial court, but also any other factors appearing in the record. Roney v. State, 872

N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of

demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006).



                                                 3
       When considering the nature of the offense, the advisory sentence is the starting point

to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494

(Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). At the time Harral committed his

crimes, the sentencing range for a Class D felony was six months to three years, with an

advisory sentence of one and one-half years. Ind. Code § 35-50-2-7(a) (2013). The trial

court sentenced Harral to three years for one count of Class D felony operating a vehicle

while intoxicated with a prior conviction; two and one-half years for the other count of Class

D felony operating a vehicle while intoxicated with a prior conviction; and 180 days for

Class A misdemeanor battery. The sentences were to be served consecutively and were

enhanced by five years for Harral’s adjudication as an HSO, for an aggregate sentence of

eleven years with three years suspended to probation.

       One factor we consider when determining the appropriateness of a deviation from the

advisory sentence is whether there is anything more or less egregious about the offense

committed by the defendant that makes it different from the “typical” offense accounted for

by the legislature when it set the advisory sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct.

App. 2008), trans. denied. On both occasions when Harral drove while intoxicated his blood

alcohol content was at least twice the legal limit, which supports the trial court’s sentencing

decision. See Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013) (sentence for

operating a vehicle while intoxicated appropriately above the advisory sentence based on the

fact Brock’s blood alcohol content was more than twice the legal limit), reh’g denied.

       When considering the character of the offender, one relevant fact is the defendant’s

                                               4
criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The

significance of a criminal history in assessing a defendant’s character varies based on the

gravity, nature, and number of prior offenses in relation to the current offense. Id. When

sentencing Harral, the court noted:

       [T]his is OWI’s number six (6) and seven (7), both of which are felony
       convictions. There is also an [HSO] and he’s had two prior HSO adjudications
       already. . . . He violated community corrections at some points in time, they
       won’t even accept you into placement due to past behaviors is what the
       rejections says, I don’t know what all that encompasses, but they are usually
       pretty liberal about trying to take people in and giving them a chance they
       aren’t even willing to go there with you again. I don’t know exactly what
       happened, but they said because of prior behavior they are unwilling to accept
       you. They [sic] are also other criminal contacts and possibly convictions too
       for possession of marijuana, two for leaving the scene [-] one in ’96, one in
       ’02; that always raises a question in my mind shall we be dealing with OWI’s
       eight (8) and nine (9) instead of six (6) and seven (7). I don’t know and I’m
       not going to say that that’s what they are, but just that it raises a good question
       in my mind what happened with those leaving the scenes. We’ve got multiple
       battery convictions, resisting law enforcement. So, we’ve got criminal history.
       I’ve already indicated that, you know, it is one thing to have OWI’s and say
       that we have substance abuse problems, it is another thing to say to have some
       of these other convictions, the batteries, the leaving the scenes, resisting law
       enforcement that makes me think that there is a total disregard for law and for
       law enforcement[.]

(Tr. at 43-4.) We cannot say Harral’s sentence was inappropriate based on his character. See

Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999) (noting that a prior conviction of OWI

would be a significant aggravator in a subsequent alcohol-related offense).

       Based on the nature of the offenses and Harral’s character, we cannot say his eleven-

year sentence is inappropriate. Accordingly, we affirm.

       Affirmed.


                                               5
BARNES, J., and PYLE, J., concur.




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