Pursuant to Ind.Appellate Rule 65(D),
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:

STEVEN KNECHT                                    GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                       Attorney General of Indiana
Lafayette, Indiana
                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Jan 19 2012, 9:34 am

                              IN THE
                                                                                   CLERK
                    COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




STACEY L. CERTAIN,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 91A02-1106-CR-546
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE WHITE SUPERIOR COURT
                         The Honorable Robert B. Mrzlack, Judge
                             Cause No. 91D01-1011-FC-142



                                      January 19, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
        Stacey L. Certain appeals his sentence for operating a motor vehicle after

forfeiture of license for life as a class C felony. Certain raises one issue, which we restate

as whether his sentence is inappropriate. We reverse and remand.

        The relevant facts follow. On November 15, 2010, Deputy David Rozzi stopped a

vehicle driven by Certain for failure to signal a turn. Deputy Rozzi checked the records

of the Bureau of Motor Vehicles (the “BMV”) and discovered that Certain’s license was

suspended as a habitual traffic violator for life.

        On November 17, 2010, the State charged Certain with operating a motor vehicle

after forfeiture of license for life as a class C felony. On February 17, 2011, Certain pled

guilty as charged.1 At the sentencing hearing, Certain testified that he would have lost

his job if he had not gone to work on November 15, 2010, and that he drove because his

sister, mother, and mother’s companion could not give him a ride. At the time of the

offense, Certain lived in Monticello, Indiana, and worked in Dayton, Indiana. Certain

testified that he did not live closer to where he was employed because he had just been

released from prison and could not yet afford to do so. In his version of the offense

attached to the presentence investigation report (the “PSI”), Certain states that he did not

have a ride to work on November 15, 2010, that he had called everyone he knew for a

ride and no one could do it, that he had recently obtained custody of his daughter, that he

really needed the work to support his daughter, that he did not want to lose the only work

he was getting at the time, that he “broke down and drove to work,” and that he was
        1
           The February 17, 2011 entry in the chronological case summary and court’s order dated
February 17, 2011, indicate that Certain pled guilty pursuant to a plea agreement. The transcript of the
February 17, 2011 hearing indicates that “there is no agreement” and that “the Court shall have complete
discretion.” Transcript at 4.

                                                   2
stopped on his way home. Appellant’s Appendix at 40. Certain further states that, since

he obtained custody of his daughter, his daughter is attending school and is receiving

considerably higher grades.

       The court found as aggravating circumstances Certain’s criminal history, the fact

that Certain was on probation at the time of the offense, and that attempts at probation

and community corrections failed to change Certain’s attitude and behavior toward

criminal activity. The court also noted that Certain was over $40,000 in arrears in child

support and that most of that amount can probably be attributed to his prior criminal

record and incarceration. The court found as mitigating circumstances the facts that

Certain pled guilty without the benefit of a written plea agreement and that he expressed

a willingness to change his life and behavior and do the right thing for his daughter. The

court noted that there were no indications of drug use or abuse for the last couple of

years. The court also noted that in 1996 a conviction for operating as a habitual traffic

violator was reduced from a D felony to a class A misdemeanor, which is typically done

to avoid a lifetime license suspension, but that he received another conviction for

operating while a habitual traffic violator in 2001 which led to a lifetime license

suspension by the BMV. The court found that the aggravating circumstances outweighed

the mitigating circumstances and sentenced Certain to five years to be served in the

Indiana Department of Correction.

       The issue is whether Certain’s sentence is inappropriate. Indiana Appellate Rule

7(B) provides that this court “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [we find] that the sentence is inappropriate in

                                             3
light of the nature of the offense and the character of the offender.” Under this rule, the

burden is on the defendant to persuade the appellate court that his or her sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

         Certain argues that the offense to which he pled guilty occurred as he was driving

home from work and that he generally arranged a ride to work from a family member but

that none were available that day. Certain argues that he was cooperative and polite

when stopped by Deputy Rozzi. Certain argues that “[n]o traffic accident occurred as a

result of [his] driving, so no one was hurt” and that “[t]his is far from being the worst

offense.” Appellant’s Brief at 11. Certain further maintains that three of his six prior

felony convictions involved drug possession and that due to the convictions he spent

some time in jail which has made it difficult for him to stay current on his child support

obligation. Certain asserts that he recognizes that he needs to become a more responsible

parent, that he had been making progress, that he recently gained custody of his daughter,

and that her school attendance and grades improved markedly after she moved in with

him. Certain asserts that he has not used drugs or alcohol since May 2008 and that he has

been employed on and off for at least ten years by a contractor who had informed the trial

court that he would hire Certain again. Certain argues that although he has a lengthy

criminal history, the crimes are not egregious and that he has been putting his life on the

right track. Certain requests that his sentence be reduced to the advisory term of four

years.

         The State argues that Certain’s offense “is not terribly egregious as it is a typical

operating a motor vehicle after forfeiture of license for life” but that, nevertheless,

                                               4
Certain’s “character demands the imposition of an enhanced sentence, given [Certain’s]

lengthy criminal history, pattern of similar offenses and continuous failure to

rehabilitate.” Appellee’s Brief at 5. The State asserts that Certain has an extensive

criminal history over twenty-two years, which includes multiple convictions involving

the operation of a motor vehicle. The State maintains that Certain “has failed to show

that he can live in society and follow the rules when given opportunities.” Id. at 6. The

State argues that Certain has had his probation revoked four times, that there is a class D

felony theft charge pending in Tippecanoe County, and that the Indiana Judicial Center’s

Risk Assessment indicates Certain needs a high level of supervision. The State further

argues that the probation department determined that Certain is unqualified for work

release privileges and monitored home detention because of his lack of acceptable full-

time employment, lack of transportation, inability to meet his financial obligations, and

pending legal issues in Noble, Benton and Tippecanoe Counties.

       Our review of the nature of the offense reveals that Certain was stopped by Deputy

Rozzi in November 2010 for failure to signal and that at the time his license was

suspended as a habitual traffic violator for life. Certain was stopped on his way home

from work in Dayton, Indiana, to Monticello, Indiana. According to Certain, he did not

have a ride to work, had called everyone he knew for a ride and no one could help him,

and would have lost his job if he had not gone to work on November 15, 2010. Deputy

Rozzi noted in his report that Certain was very cooperative and polite.

       Our review of the character of the offender reveals that, in addition to several

misdemeanor offenses, Certain’s criminal history includes six felony offenses, which

                                            5
consists of possession of marijuana with a prior conviction as a class D felony in 1997,

possession of a schedule IV controlled substance as a class D felony in 1998, operating a

vehicle after being adjudged as a habitual traffic violator as a class D felony in 2001,

escape as a class D felony in 2002, non-support of dependent child as a class C felony in

2007, and possession of cocaine as a class D felony in 2008. Certain previously violated

the terms of his probation and was on probation at the time of the offense in this case.

         However, we note, as the trial court observed, that since 2008 Certain has not been

charged with any drug-related offenses and that he pled guilty without the benefit of a

plea agreement. Further, Certain had recently obtained custody of his daughter and, since

the time his daughter moved in with him, she is attending school and receiving

considerably higher grades. Certain also testified that he did not live closer to where he

was employed because he had just been released from prison and could not yet afford to

do so.

         After due consideration, we conclude that Certain has met his burden of

establishing that his enhanced five year sentence is inappropriate in light of the nature of

the offense and his character. Pursuant to Appellate Rule 7(B), we exercise our authority

to revise Certain’s sentence to the advisory sentence of four years and remand with

instructions to resentence him accordingly.

         Reversed and remanded.

MAY, J., and CRONE, J., concur.




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