MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Oct 18 2018, 6:05 am
this Memorandum Decision shall not be
                                                                                  CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
court except for the purpose of establishing                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffery Haupt                                            Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                              Attorney General of Indiana
South Bend, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Irwin McNeil Scott,                                      October 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-355
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1610-F3-64



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018                      Page 1 of 10
                                Case Summary and Issue
[1]   Irwin Scott pleaded guilty to two counts of failure to remain at the scene of an

      accident, both Level 3 felonies, and resisting law enforcement, a Level 6 felony.

      The trial court sentenced Scott to an aggregate term of twenty-two years at the

      Indiana Department of Correction. On appeal, we vacated one of Scott’s

      convictions for failure to remain at the scene of an accident for violating double

      jeopardy and remanded for resentencing on the remaining conviction. See Scott

      v. State, No. 71A05-1706-CR-1225 at *2 (Ind. Ct. App. Nov. 3, 2017).

      Following remand, the trial court resentenced Scott to an aggregate term of

      seventeen years at the Department of Correction. Scott now appeals his

      sentence, raising the sole issue of whether it is inappropriate in light of the

      nature of his offense and his character. Concluding his sentence is not

      inappropriate, we affirm.



                            Facts and Procedural History
[2]   The underlying facts were set forth in Scott’s prior appeal:


              On October 12, 2016, police stopped the vehicle in which Scott
              and two children were passengers. The driver of the vehicle
              exited to talk to the police officer, and Scott, who was
              intoxicated, moved into the driver’s seat and drove away. The
              police attempted to pull him over, but he kept driving for
              multiple blocks, crashed into a pole, flipped the vehicle over, and
              left the scene without checking if he could aid anyone or waiting
              for the police to arrive. The two children each sustained serious
              bodily injury as a result of the accident.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 2 of 10
              On October 14, 2016, the State charged Scott with two counts of
              failure to remain at the scene of an accident as level 3 felonies
              and one count of resisting law enforcement as a level 6 felony.
              On March 27, 2017, the court held a hearing, and Scott pled
              guilty as charged without a plea agreement. When asked by the
              court what differentiated the two counts of failure to remain at
              the scene of an accident, the prosecutor indicated that there were
              two separate victims.


              On May 10, 2017, the court held a sentencing hearing. It
              sentenced Scott to consecutive terms of ten years for each count
              of failure to remain at the scene of an accident and two years for
              resisting law enforcement, for an aggregate sentence of twenty-
              two years.


      Id. at *1.


[3]   On appeal, Scott argued his convictions and sentences violated his protections

      against double jeopardy. The State conceded that Scott’s two convictions for

      failure to remain at the scene of an accident constitute only one offense and we

      vacated one of Scott’s convictions and sentences and remanded for

      resentencing. Id. at *2.


[4]   On remand, Scott requested that the trial court impose the original ten-year

      sentence for the remaining count of failure to remain at the scene of an

      accident. The State requested that Scott receive the maximum penalty due to

      the injuries sustained by two minors.


[5]   The trial court found Scott’s open plea as a mitigating factor and weighed that

      against the aggravating factors of Scott’s criminal history, the fact that he was


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 3 of 10
      on probation at the time of the offense, and the nature of the crime.

      Concluding the aggravating factors outweighed the sole mitigating factor, the

      trial court sentenced Scott to fifteen years to be served consecutively with the

      two-year sentence for resisting law enforcement that was left undisturbed by

      Scott’s prior appeal. Therefore, Scott was sentenced to an aggregate term of

      seventeen years at the Department of Correction. Scott now appeals.



                                 Discussion and Decision

                                   I. Standard of Review
[6]   Even when a trial court has acted within its discretion in imposing a sentence,

      Article 7, sections 4 and 6 of the Indiana Constitution authorize our

      independent appellate review and revision of sentences. Trainor v. State, 950

      N.E.2d 352, 355 (Ind. Ct. App. 2011), trans. denied. Indiana Appellate Rule

      7(B) implements that authority, providing, “The 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.” The defendant bears the burden of

      persuading this court that his or her sentence is inappropriate. Childress v. State,

      848 N.E.2d 1073, 1080 (Ind. 2006). This analysis “turns on our sense of the

      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). And finally, we emphasize that our


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 4 of 10
      role is to “leaven the outliers,” not to achieve the perceived “correct” result in

      each case. Id. at 1225.


                                      II. Improper Sentence
                                  A. Indiana Appellate Rule 7(B)
[7]   Notably, Scott argues his sentence is inappropriate solely in light of his

      character. Scott provides no argument regarding the nature of his offense,

      explaining that his character renders his sentence inappropriate “even when

      factoring in the ‘nature of the offense,’ the age of the victims, and the other

      seriousness of the injuries that the two children suffered.” Brief of Appellant at

      10. In turn, the State contends Scott has waived our review by failing to

      address the nature of his offense, citing Simmons v. State, 999 N.E.2d 1005, 1013

      (Ind. Ct. App. 2013), trans. denied; Anderson v. State, 989 N.E.2d 823, 827 (Ind.

      Ct. App. 2013), trans. denied; and Williams v. State, 891 N.E.2d 621, 623 (Ind.

      Ct. App. 2008), in support of this contention. Brief of Appellee at 9.


[8]   We have acknowledged that “our jurisprudence on this issue is far from

      settled[.]” Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). In Reis, we

      examined recent precedent including our supreme court’s decision in Shoun v.

      State, where, rather than deem the defendant’s Rule 7(B) argument waived for

      failing to argue both prongs, the court concluded that the defendant’s

      “arguments that his character makes his . . . sentence inappropriate are not

      persuasive.” 67 N.E.3d 635, 642 (Ind. 2017). We then explained:




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 5 of 10
               We continue to view [Connor v. State, 58 N.E.3d 215 (Ind. Ct.
               App. 2016)]’s interpretation of Rule 7(B) as consistent with the
               purpose of the rule, our constitutional prerogative from which the
               rule is derived, and principles of justice. Indeed, requiring a
               defendant to prove each of the prongs in order to render his
               sentence inappropriate can lead to absurd results and require
               defendants to mount disingenuous arguments on appeal. As we
               noted in Connor, this interpretation of Rule 7(B) does not lessen a
               defendant’s burden; rather, the burden may be “heightened by
               the need to prove the nature of his character should overcome the
               admittedly serious nature of his offense.” 58 N.E.3d at 220.
               Therefore, we continue to recognize the two prongs of Rule 7(B)
               to be separate inquiries that must “ultimately be balanced in
               determining whether a sentence is inappropriate.” Id. at 218.


       Reis, 88 N.E.3d at 1104 (footnote omitted).


[9]    Most recently, our supreme court has again declined to waive a defendant’s

       argument where the defendant “argued his character alone merited a lesser

       sentence.” Wright v. State, No. 18S-CR-166 at page 18 (Ind. Oct. 4, 2018).

       Accordingly, as we did in Reis, we reject the State’s argument that Scott has

       waived review of his sentence by acknowledging the serious nature of his

       offense. Therefore, we will consider both the nature of Scott’s offense and his

       character in evaluating whether his sentence is inappropriate.


                                        B. Nature of the Offense
[10]   The advisory sentence is the starting point which our legislature has selected as

       an appropriate sentence for the crime committed. Childress, 848 N.E.2d at

       1081. Scott was convicted of failure to remain at the scene of an accident that

       occurred while he was operating a vehicle while intoxicated that resulted in
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 6 of 10
       serious bodily injury, a Level 3 felony. A Level 3 felony carries a possible

       sentence of three to sixteen years, with an advisory sentence of nine years. Ind.

       Code § 35-50-2-5(b). Thus, Scott’s fifteen-year sentence was six years more

       than the advisory sentence and one year less than the maximum sentence

       allowed for a Level 3 felony.


[11]   Here, all while intoxicated, Scott led police on a high-speed chase with two

       eight-year-old children in the vehicle. Scott then wrecked the vehicle and fled

       without providing aid to the two children who suffered serious, life-threatening

       injuries. These selfish actions demonstrate a blatant disregard for both life and

       the law and nothing about the particularly egregious nature of this offense leads

       us to question the trial court’s near-maximum sentence.


                                    C. Character of the Offender
[12]   As discussed above, Scott contends his sentence is inappropriate in light of his

       character.


               The “character of the offender” portion of the standard refers to
               the general sentencing considerations and the relevant
               aggravating and mitigating circumstances. We assess the trial
               court’s recognition or non-recognition of aggravators and
               mitigators as an initial guide to determining whether the sentence
               imposed was inappropriate. A defendant must still persuade the
               appellate court that his or her sentence has met the
               inappropriateness standard of review.


       Reis, 88 N.E.3d at 1104-05 (citations omitted).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 7 of 10
[13]   Here, the trial court found Scott’s open plea agreement was the sole mitigating

       factor. As for aggravating factors, the trial court explained:


               I do consider the same aggravating factors as I did before, Mr.
               Scott. Your criminal history, that this is your fourth felony
               conviction, that you were on felony probation at the time you
               committed this offense. I take into account now there were two
               separate children injured and while . . . sentencing for those two
               counts was in error, I think I can take into account the fact that
               there was more than the one victim of this offense. And I do still
               take into account that [the second victim’s] injuries were – I think
               as we talked about at the time any single one of his injuries at
               that time could have reached the level of serious bodily injury or
               reached – met the definition of serious bodily injury. The totality
               of his injuries then was so far greater than what the [S]tate would
               have to prove.


               I think [the State] is right whether we say there were two victims
               and that’s the aggravator, that the offense took place in the
               presence of another child under twelve. However, that
               aggravator is actually raised, I believe it’s an aggravating factor,
               that there was another child present. That other child was
               injured and that other child was a witness to and part of that
               accident.


       Transcript, Volume 2 at 8-9.


[14]   Scott argues even though his prior convictions “can be considered an

       aggravating factor, to order him to a maximum, executed sentence is

       inappropriate given that his criminal history is not extensive, even when

       factoring in the ‘nature of the offense,’ the age of the victims, and the other

       seriousness of the injuries the two children suffered.” Br. of Appellant at 10.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 8 of 10
       Thus, it appears the thrust of Scott’s argument is that his “criminal history is

       not extensive[.]” Id.


[15]   At only twenty-seven years old, however, Scott’s criminal history includes three

       misdemeanor convictions, three felony convictions, and Scott was on felony

       probation at the time of the offense in question. As we often note, even a minor

       criminal record reflects poorly on a defendant’s character, Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007), and Scott’s criminal history is more

       than minor. Therefore, we find nothing about Scott’s criminal history that

       renders his near-maximum sentence inappropriate.


[16]   Finally, Scott emphasizes his “substantial history of substance abuse.” Br. of

       Appellant at 9. But besides listing several examples, Scott never explains how

       this fact renders his sentence inappropriate. In any event, we have explained

       that substance abuse may be an aggravating circumstance where the defendant

       is aware of a substance abuse problem but has failed to take appropriate steps to

       treat it, as is the case here. Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App.

       2009), trans. denied. Accordingly, as with the nature of Scott’s offense, we find

       nothing about Scott’s character rendering his sentence inappropriate.



                                               Conclusion
[17]   We conclude Scott’s sentence is not inappropriate in light of the nature of his

       offenses or in light of his character. We therefore affirm.


[18]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 9 of 10
Baker, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-355 | October 18, 2018   Page 10 of 10
