      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                           FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                    Apr 17 2018, 8:59 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
      Melissa J. Haley                                         Curtis T. Hill, Jr.
      Boonville, Indiana                                       Attorney General of Indiana
                                                               Matthew B. MacKenzie
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Osiel Marroquin,                                         April 17, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               87A01-1709-CR-2192
              v.                                               Appeal from the
                                                               Warrick Superior Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Robert R. Aylsworth, Judge
                                                               Trial Court Cause No.
                                                               87D02-1612-F4-571



      Kirsch, Judge.


[1]   Osiel Marroquin (“Marroquin”) pleaded guilty in open court to one Level 4

      felony, three Level 5 felonies, one Level 6 felony, and a Class A misdemeanor.


      Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018                Page 1 of 8
      All of those convictions arose from his drunken driving accident that killed

      fifteen-year-old S.R. and caused permanent brain damage to her eighteen-year-

      old friend, Megan Ripperdan (“Ripperdan”). The trial court entered judgment

      on only three of Marroquin’s convictions, noting that the other three were

      lesser-included offenses, and ordered Marroquin to serve an aggregate executed

      sentence of ten years in the Indiana Department of Correction (“DOC”).

      Marroquin appeals, contending that his sentence is inappropriate in light of the

      nature of the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On December 17, 2016, Marroquin was heavily intoxicated as he drove his

      SUV westbound in the eastbound lanes of State Road 62 (“SR 62”), which was

      a four-lane highway. Meanwhile, Casie Mathies (“Mathies”) was driving

      eastbound in the right lane of State Road 62 when she saw Marroquin drive

      past her in the opposite direction in the left lane, prompting her to call 911.

      Before officers could respond, Marroquin crashed into a car, which was driven

      by Whitney Winstead (“Winstead”) and carrying passengers S.R. and

      Ripperdan.


[4]   When law enforcement officers arrived on the scene, Winstead was coherent

      and able to speak, but did not remember the accident. Marroquin was similarly

      alert and able to respond. S.R., who was riding in the front seat of Winstead’s

      car, was unresponsive and did not have a pulse. Ripperdan was lying across the

      Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018   Page 2 of 8
      back seat of Winstead’s car. She was breathing, but was not coherent and

      began vomiting. Once extracted from the vehicles, emergency crews

      transported the four individuals to the hospital where S.R. was pronounced

      dead. Winstead’s injuries caused pain to her face, mouth, right elbow, and

      knee, while Ripperdan had serious internal bleeding and a large amount of

      swelling to her brain. A blood draw and resulting toxicology test revealed that

      Marroquin had a .232 blood alcohol content (“BAC”).


[5]   Between December 20 and December 22, 2016, the State charged Marroquin

      with the following six counts: Count 1, Level 5 felony reckless homicide of

      S.R.;1 Count 2, Level 5 felony causing S.R.’s death when operating a motor

      vehicle with at least a .08 BAC;2 Count 3, Level 5 felony causing S.R.’s death

      when operating a motor vehicle while intoxicated;3 Count 4, Level 6 felony

      causing Ripperdan serious bodily injury when operating a motor vehicle with at

      least a .08 BAC;4 Count 5, Class A misdemeanor endangering Mathies when

      operating a motor vehicle while intoxicated;5 and Count 6, Level 4 felony

      causing S.R.’s death when operating a motor vehicle while intoxicated with a

      prior operating while intoxicated conviction.6 On July 21, 2017, Marroquin



      1
          See Ind. Code § 35-42-1-5.
      2
          See Ind. Code § 9-30-5-5(a)(1).
      3
          See Ind. Code § 9-30-5-5(a)(3).
      4
          See Ind. Code § 9-30-5-4(a)(1).
      5
          See Ind. Code § 9-30-5-2(a), (b).
      6
          See Ind. Code § 9-30-5-5(a)(3), (b)(1).


      Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018   Page 3 of 8
      pleaded guilty to all counts pursuant to an open plea agreement. The trial court

      accepted Marroquin’s guilty plea and entered judgment of conviction only as to

      Counts 4, 5, and 6, noting that Counts 1, 2, and 3 were lesser-included offenses

      of Count 6. Appellant’s App. Vol. II at 54-55.


[6]   At an August 24, 2017 sentencing hearing, S.R.’s mother read a letter in which

      she related to the trial court the significance of S.R.’s life, the pain of losing S.R.

      when she was just fifteen years old, and the challenges of S.R.’s eighteen-year-

      old friend, Ripperdan, who “suffered a traumatic brain injury that will forever

      affect her life as well as those that love her.” Tr. Vol. II at 8. During the

      hearing, Marroquin admitted that, on the night in question, he knew he was

      drunk and called a friend to pick him up, but when that friend did not arrive,

      Marroquin decided to drive himself home despite his highly intoxicated state.

      Id. at 13. The trial court found mitigating factors in Marroquin’s admission of

      guilt and relatively law-abiding life. Id. at 19. The trial court also took into

      consideration “the notice of the risk assessment prepared in the presentence

      investigation and report,” which placed Marroquin in “the LOW risk category

      to reoffend.” Id. at 19; Appellant’s App. Vol. II at 63-64.


[7]   The trial court, however, found those mitigating factors were outweighed by the

      following aggravating factors:


              [Marroquin] recently violated the conditions of any probation[;]
              an active bench warrant exists from Florida for his arrest at this
              time[; and]. . . . Marroquin has been in the United States
              unlawfully since apparently he was nine years of age. Or for an


      Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018   Page 4 of 8
              extended period of time. Obviously if he was not in this country,
              the incident would not have occurred on December 17, 2016.


      Tr. Vol. II at 18-19. Noting that no judgment of conviction was entered on

      Counts 1, 2 or 3, the trial sentenced Marroquin on the three remaining

      convictions. As to Count 6, Level 4 felony operating a motor vehicle while

      intoxicated causing death with a prior conviction, the trial court ordered

      Marroquin to serve ten years in the DOC. The trial court also sentenced

      Marroquin to serve one year each for his convictions on Count 5 (Class A

      misdemeanor operating a motor vehicle while intoxicated endangering a

      person) and Count 4 (Level 6 felony operating a motor vehicle while

      intoxicated causing serious bodily injury) and ordered those sentences to be

      served concurrent with Count 6 for an aggregate executed sentence of ten years.

      Marroquin now appeals his sentence.


                                     Discussion and Decision
[8]   Marroquin asserts that his sentence is inappropriate in light of the nature of the

      offenses and his character. “The Indiana Constitution authorizes appellate

      review and revision of a trial court’s sentencing decision.” Robinson v. State, 91

      N.E.3d 574, 577 (Ind. 2018). “This authority is implemented through Indiana

      Appellate Rule 7(B), which permits an appellate court to revise a sentence if,

      after due consideration of the trial court’s decision, the sentence is found to be

      inappropriate in light of the nature of the offense and the character of the

      offender.” Id. The principal role of such review is to attempt to leaven the

      outliers. Id. (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). “The

      Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018   Page 5 of 8
       burden is on the defendant to persuade the reviewing court that the sentence is

       inappropriate.” Id.


[9]    “Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment ‘should

       receive considerable deference.’” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.

       App. 2017) (quoting Cardwell, 895 N.E.2d at 1222), trans. denied. Whether we

       regard a sentence as inappropriate turns on “our sense of the culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other facts that come to light in a given case.” Cardwell, 895 N.E.2d at 1224.

       “The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844.


[10]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Id. Here, Marroquin was

       sentenced on a Level 4 felony, a Level 6 felony, and a Class A misdemeanor,

       which reflected S.R.’s death, the serious and permanent brain injuries to

       Ripperdan, and the danger his driving posed to Mathies. The sentence for a

       Level 4 felony is a fixed term of between two years and twelve years, with the

       advisory sentence being six years. Ind. Code § 35-50-2-5.5. The sentence for a

       Level 6 felony is a fixed term of between six months and two and one-half

       years, with the advisory sentence being one year. The sentence for a Class A

       misdemeanor is a fixed term of not more than one year. Ind. Code § 35-50-3-2.

       Our court must also assess the trial court’s recognition or nonrecognition of

       aggravators and mitigators as an initial guide to determining whether the

       Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018   Page 6 of 8
       sentence imposed was inappropriate. Sanders, 71 N.E.3d at 844. Here, the trial

       court found the aggravators were greater than the mitigators and sentenced

       Marroquin to an aggregate sentence of ten years, which was two years less than

       the maximum sentence for just the Level 4 felony.


[11]   Marroquin argues that his sentence is inappropriate in light of the nature of the

       offense. Specifically, he contends that “[t]here was nothing in the record

       beyond the baseline elements which would merit moving the sentences off of

       the starting point for said charges[,] i.e. the advisory sentences.” Appellant’s Br.

       at 11. We disagree. On the night in question, Marroquin drank to the point

       where he had a .232 BAC, an amount that is almost three times the legal limit.

       Marroquin knew that he was too drunk to drive and called to get a ride, but

       when his friend did not arrive, Marroquin decided to drive himself home

       despite his highly intoxicated state. Tr. Vol. II at 13. Marroquin’s actions of

       driving that night not only killed a fifteen-year-old girl, but also caused her

       eighteen-year old friend to “suffer[] a traumatic brain injury that will forever

       affect her life as well as those that love her.” Id. at 8. We find the punishment

       for Marroquin’s convictions is not inappropriate in light of the nature of the

       offense.


[12]   Marroquin’s argument that his sentence is inappropriate in light of his character

       also fails. While the trial court noted that Marroquin had mostly led a law-

       abiding life during his time in the United States and that he was at a low risk to

       reoffend, the trial court also recognized that, at the time of the accident,

       Marroquin had recently violated the conditions of probation on a prior

       Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018   Page 7 of 8
       conviction and that there was an active bench warrant from Florida for his

       arrest. Furthermore, the trial court noted that Marroquin had been in the

       United States unlawfully since he was nine years old and that the accident

       could not have occurred without his presence in this country. Based on the

       evidence before the trial court, we cannot say that an aggregate sentence of ten

       years as punishment for Marroquin’s crimes, which left a fifteen-year-old dead

       and an eighteen-year-old with traumatic brain injury and endangered another

       driver, is inappropriate in light of Marroquin’s character. We conclude that the

       sentence imposed by the trial court is not inappropriate under Appellate Rule

       7(B) and does not warrant appellate revision.


[13]   Affirmed.


[14]   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A01-1709-CR-2192 | April 17, 2018   Page 8 of 8
