 Pursuant to Ind.Appellate Rule 65(D),                           Apr 30 2014, 9:39 am
 this Memorandum Decision shall not be
 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:

BRUCE W. GRAHAM                                       GREGORY F. ZOELLER
Graham Law Firm P.C.                                  Attorney General of Indiana
Lafayette, Indiana
                                                      RICHARD C. WEBSTER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

HEATH BURGESS,                                        )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )      No. 79A02-1309-CR-754
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Michael A. Morrissey, Judge
                                Cause No. 79D06-1207-FD-168


                                            April 30, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
          After pleading guilty to class A misdemeanor Operating a Vehicle While Intoxicated1

and admitting to being a Habitual Substance Offender,2 Heath Burgess was sentenced to five

years in the Tippecanoe County Jail with one year suspended. Burgess now appeals and

argues that his sentence is inappropriate in light of the nature of the offense and his character.

          We affirm.

          On the evening of July 23, 2012, Burgess was driving with a blood-alcohol content of

approximately .196. Burgess was so intoxicated that he somehow fell out of his vehicle near

an intersection, but his car kept moving and struck a mailbox and another vehicle. As a result

of these and other events, the State charged Burgess with multiple counts, including

operating a vehicle while intoxicated, driving while suspended, battery by bodily waste, and

disorderly conduct. The State also alleged that Burgess was a habitual offender and a

habitual substance offender. On January 2, 2013, Burgess entered into a plea agreement

whereby he would plead guilty to one count of class A misdemeanor operating a vehicle

while intoxicated and admit to his habitual substance offender status in return for the

dismissal of the remaining counts and the habitual offender allegation. Additionally, his

sentence would be capped at six years

          On May 8, 2013, the trial court sentenced Burgess to one year for the operating while

intoxicated offense, enhanced by four years based on his habitual substance offender status,

with one year suspended to probation. Thus, Burgess received an aggregate sentence of four



1
    Ind. Code Ann. § 9-30-5-2 (West, Westlaw current with all 2013 legislation).
2
    Ind. Code Ann. § 30-50-2-10 (West, Westlaw current with all 2013 legislation).

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years executed in the Tippecanoe County Jail and one year suspended. At the sentencing

hearing, the trial court noted that Burgess owed Tippecanoe County Community Corrections

nearly $2,500 in back fees, and the arrearage would prevent Burgess’s placement in

community corrections even if it was inclined to order such a placement.3 Nevertheless, the

trial court stated that after Burgess served one year of his sentence in the Tippecanoe County

Jail, it would consider a motion for Burgess to serve the remainder of the sentence in

community corrections, contingent on Burgess’s payment of his back fees and acceptance

into the program. Burgess now appeals.

        Burgess argues that his sentence is inappropriate in light of the nature of the offense

and his character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court

the power to review and revise criminal sentences. Pursuant to App. R. 7, the Supreme Court

has authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.

2008). Per App. R. 7(B), we may revise a sentence “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.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind. 2009),

cert. denied, 131 S.Ct. 414 (2010). Nevertheless, “we must and should exercise deference to

a trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

consideration’ to that decision and because we understand and recognize the unique



3
 On the same date as Burgess’s sentencing hearing, the trial court entered a written sentencing order that did
not reflect the sentence announced at the hearing. Specifically, the written order directed that Burgess was to
serve his sentence in Tippecanoe County Community Corrections. Several months later, the trial court entered
a written order correcting its previous sentencing order to reflect its oral sentencing statement. Burgess
subsequently sought, and was granted, permission to file a belated notice of appeal.

                                                      3
perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,

866 (Ind. Ct. App. 2007).

       In this case, Burgess does not challenge the length of his sentence. Rather, he

challenges his placement in the county jail, arguing that he should instead have been placed

in community corrections. This court has noted that “it will be quite difficult for a defendant

to prevail on a claim that the placement of his sentence is inappropriate.” King v. State, 894

N.E.2d 265, 267 (Ind. Ct. App. 2008). This is so because a defendant challenging the

placement of his sentence must convince us not that another placement would be more

appropriate, but that his given placement is inappropriate. King v. State, 894 N.E.2d 265.

Moreover, we acknowledge that as a practical matter, trial courts are familiar with alternative

placements and are aware of the availability, costs, and entrance requirements of community

corrections placements in their jurisdictions. Id.

       Burgess has not carried his burden of convincing us that his placement in the

Tippecanoe County Jail is inappropriate. The trial court noted that even if it was inclined to

place Burgess in community corrections, Burgess was ineligible for the program because he

owed nearly $2,500 in back fees from previous placements. Thus, placement in community

corrections was simply not an option for Burgess. Burgess argues that his placement “ought

not be dependent on economic issues.” Appellant’s Brief at 9. Burgess does not, however,

make any argument that the trial court had the authority to compel Tippecanoe County

Community Corrections to accept Burgess into its program notwithstanding his arrearage.

       Moreover, even if Burgess was eligible for community corrections, he has not


                                               4
established that placement in the county jail was inappropriate. Burgess notes that because

he was convicted of a misdemeanor, which was enhanced based on his habitual substance

offender status, he is faced with the somewhat unusual circumstance of serving a relatively

lengthy sentence in a county jail rather than the Department of Correction. See Ind. Code

Ann. § 35-38-3-3 (West, Westlaw current with all 2013 legislation) (providing that a person

convicted of a misdemeanor may not be committed to the Department of Correction except in

certain limited circumstances). According to Burgess, “[a]necdotal evidence, and common

sense, would dictate that service of that length of a sentence in a county jail would constitute

a harsher punishment, [sic] than service of four years in the Indiana Department of

Corrections.” Appellant’s Brief at 7-8. Even assuming the accuracy of this assertion, we

remain unconvinced that Burgess’s placement is inappropriate.

       Considering the nature of the offense, we note that Burgess was driving with a blood-

alcohol content of .196, and that he was so intoxicated that he fell out of his vehicle. The

vehicle kept moving, causing property damage. Considering the character of the offender,

we note that Burgess’s lengthy criminal history includes two prior convictions for operating a

vehicle while intoxicated and multiple drug- and alcohol-related misdemeanors. Burgess

also has felony convictions for resisting law enforcement, auto theft, and theft, and he was

previously found to be a habitual offender. While out on bond in this case, Burgess was

convicted of class C felony carrying a handgun without a license. Burgess points out that he

accepted responsibility for his crimes by pleading guilty, but the mitigating weight of his

guilty plea is tempered by the fact that multiple charges were dismissed as part of the plea


                                               5
agreement. Finally, and perhaps most importantly in this case, the record establishes that

Burgess has not fared well when offered alternatives to incarceration. Burgess has a long

history of violating the conditions of probation, home detention, and work release, and he has

also failed to appear numerous times. For all of these reasons, we cannot conclude that

Burgess’s placement in county jail rather than community corrections is inappropriate.

       Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.




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