MEMORANDUM DECISION                                                       FILED
                                                                    Nov 04 2016, 10:32 am
Pursuant to Ind. Appellate Rule 65(D),                                    CLERK
this Memorandum Decision shall not be                                 Indiana Supreme Court
                                                                         Court of Appeals
regarded as precedent or cited before any                                  and Tax Court

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
Cara Schaefer Wieneke                                   Gregory F. Zoeller
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Mary Davis,                                             November 4, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        84A01-1605-CR-1214
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable Michael Rader,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        84D05-1404-FD-1038



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1605-CR-1214| November 4, 2016        Page 1 of 5
                                          Case Summary
[1]   Mary Davis appeals her three-year sentence for operating a vehicle while

      intoxicated as a Class D felony, arguing that it is inappropriate in light of the

      nature of the offense and her character. We disagree and affirm.



                            Facts and Procedural History
[2]   In April 2014, Davis was seen driving erratically by police in Terre Haute and

      was arrested and charged with operating while intoxicated (OWI). Because she

      had been convicted on a separate OWI charge just three weeks earlier, the new

      charge was a Class D felony. See Ind. Code Ann. § 9-30-5-3 (West 2012). In

      October 2014, Davis and the State entered into an Adult Mental Health Court

      Deferral Agreement (“Deferral Agreement”), pursuant to which Davis pled

      guilty to the charge but was not sentenced and would have the charge dismissed

      if she completed the Adult Mental Health Program under the supervision of the

      Vigo County Mental Health Court.


[3]   In January 2016, Davis was convicted in Clay County of three new crimes she

      committed in late 2015: domestic battery as a Level 6 felony, OWI as a Level 6

      felony, and leaving the scene of an accident as a Class B misdemeanor. As a

      result, the State filed a petition to revoke the Deferral Agreement in the Vigo

      County case. The Vigo County court granted the motion, entered a judgment

      of conviction based on Davis’ earlier guilty plea, and imposed the maximum

      sentence of three years in prison. The court ordered that Davis “be placed in


      Court of Appeals of Indiana | Memorandum Decision 84A01-1605-CR-1214| November 4, 2016   Page 2 of 5
      Purposeful Incarceration in the Therapeutic Community” and said that it

      would consider a sentencing modification if Davis “successfully completes a

      Department of Correction Therapeutic Community.” Appellant’s App. p. 55.


[4]   Davis now appeals.



                                Discussion and Decision
[5]   Davis asks us to reduce her sentence pursuant to Indiana Appellate Rule 7(B),

      which provides that an appellate 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.” Because we generally defer to the judgment of trial

      courts in sentencing matters, defendants have the burden of persuading us that

      their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.

      Ct. App. 2016). “Whether a sentence is inappropriate ultimately turns on the

      culpability of the defendant, the severity of the crime, the damage done to

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

      Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008)).


[6]   Davis contends that her three-year sentence—the maximum allowed for a Class

      D felony, see Ind. Code Ann. § 35-50-2-7 (West 2012)—is inappropriate because

      her offense was an unremarkable OWI and because she is a product of her

      circumstances, not a person of poor character. We agree that there was nothing


      Court of Appeals of Indiana | Memorandum Decision 84A01-1605-CR-1214| November 4, 2016   Page 3 of 5
      particularly egregious about Davis’ offense—she made “unsafe lane

      movements,” struck the curb, and failed to use her turn signal, and her BAC

      was .12 percent. Appellant’s App. p. 35. We also acknowledge her sad

      personal history. According to her pre-sentence investigation report, Davis was

      sexually and physically abused by her stepfather, was sexually abused by her

      brothers and stepbrother, first experimented with alcohol at age five and drugs

      at age thirteen, attended school until only ninth grade, has been married and

      divorced eight times, had all three of her children taken from her, has no

      friends, has no assets or bank accounts, has a history of mental illness, and has

      attempted suicide.

[7]   Unfortunately for Davis, she did not leave the trial court with much of a choice

      here. This was her seventh OWI conviction, the sixth having come just three

      weeks earlier. She had a total of fourteen prior criminal convictions, including

      seven felonies. She was given an opportunity to participate in a mental-health

      program and have this case dismissed entirely, and while she apparently did

      well for a year, she then committed two new felonies, including yet another

      OWI. It is also undisputed that Davis has a history of failed attempts at

      probation, community corrections, and alcohol and drug-treatment programs.

      Finally, it may well be that Davis will not have to serve the full three years

      imposed by the trial court, since the court made clear that it would consider a

      sentencing modification if Davis successfully completes a Department of

      Correction Therapeutic Community. In light of Davis’ criminal history and the




      Court of Appeals of Indiana | Memorandum Decision 84A01-1605-CR-1214| November 4, 2016   Page 4 of 5
      realistic possibility of a sentence reduction, we cannot say that the sentence

      imposed by the trial court is inappropriate.

[8]   Affirmed.

      Baker, J., and Najam, J., concur.




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