MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                             Jun 20 2017, 9:38 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John M. Skorvanek,                                       June 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         58A01-1612-CR-2879
        v.                                               Appeal from the Ohio Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         The Honorable Kimberly A.
                                                         Schmaltz, Magistrate
                                                         Trial Court Cause No.
                                                         58C01-1206-CM-57



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017          Page 1 of 10
                                          Case Summary
[1]   On June 18, 2012, Appellant-Defendant John M. Skorvanek was observed

      driving away from the Rising Star Casino and Resort in an erratic fashion.

      Skorvanek was soon thereafter stopped by police. The police administered two

      field sobriety tests (“FSTs”), both of which Skorvanek failed. Skorvanek

      submitted to a portable breathalyzer test (a “PBT”), the results of which

      indicated that Skorvanek’s blood alcohol content (“BAC”) was above the legal

      limit. He subsequently submitted to a certified breath test, the results of which

      also indicated that Skorvanek’s BAC was above the legal limit.


[2]   The next day, on June 19, 2012, Appellee-Plaintiff the State of Indiana (“the

      State”) charged Skorvanek with Class A misdemeanor operating a vehicle while

      intoxicated endangering a person and Class C misdemeanor operating a vehicle

      with a BAC over 0.08. The State also alleged that Skorvanek was a habitual

      offender. Following a bench trial, the trial court found Skorvanek guilty,

      merged the Class C misdemeanor charge into the Class A misdemeanor, found

      Skorvanek to be a habitual offender, and imposed an aggregate nine-year

      sentence.


[3]   On appeal, Skorvanek contends that his sentence is inappropriate in light of the

      nature of his offense and his character. Concluding otherwise, we affirm.



                            Facts and Procedural History


      Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017   Page 2 of 10
[4]   On June 18, 2012, Skorvanek and a female companion were “cut off for

      drinking” at the Rising Star Casino and Resort. Tr. Vol. II, p. 12. Trisha

      Schwing, a Gaming Enforcement Agent employed by the Indiana Gaming

      Commission and stationed at the Rising Star Casino, then observed Skorvanek

      and his companion exit the casino and approach a minivan. As Skorvanek’s

      companion “got into” the minivan, Skorvanek “opened the back of the minivan

      and pulled a cooler out and opened a couple of beers and then got into” the

      minivan and drove away. Tr. Vol. II, p. 12. Schwing then “called Ohio

      County dispatch and advised them” of what she had observed. Tr. Vol. II, p.

      13.


[5]   Rising Sun Police Sergeant Frank McIntosh observed as the minivan in

      question1 “was leaving the casino property and entering State Route 56.” Tr.

      Vol. II, p. 15. Sergeant McIntosh observed the minivan “swerving in and out of

      the lane” and driving “halfway on the right shoulder [i.e., the emergency lane]

      of the highway.” Tr. Vol. II, pp. 15, 16 (bracketed information added).

      Sergeant McIntosh observed the minivan for “about a quarter of a mile,”

      watching it travel “back and forth from the centerline over to the right

      shoulder.” Tr. Vol. II, p. 16. Just as Sergeant McIntosh activated his lights, the

      driver of the minivan “made a left turn into a driveway at a residence.” Tr. Vol.




      1
          Sergeant McIntosh identified the minivan by both the vehicle’s color and license plate number.


      Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017                 Page 3 of 10
      II, p. 16. At the time, Sergeant McIntosh was familiar with the individuals who

      lived at the residence and knew that they did not own a similar minivan.


[6]   Skorvanek then exited the vehicle, at which time Sergeant McIntosh observed

      that Skorvanek, and not his female companion, had been driving the minivan.

      As Skorvanek was approaching the residence, Sergeant McIntosh “spoke with

      [Skorvanek], asked him where he was going.” Tr. Vol. II, p. 17. Skorvanek

      “came back and kind of used the van to lean on.” Tr. Vol. II, p. 17.


[7]   Sergeant McIntosh and Skorvanek “met about halfway” between the residence

      and the minivan. Tr. Vol. II, p. 17. From his position about four feet from

      Skorvanek, Sergeant McIntosh could smell “a strong odor of alcoholic

      beverages coming from [Skorvanek’s] person.” Tr. Vol. II, p. 17. About this

      time, Rising Sun Police Officer Wayne Siekman arrived on the scene. When

      Officer Siekman approached Skorvanek, he could also “smell the odor of an

      alcoholic beverage coming from [Skorvanek’s] person.” Tr. Vol. II, p. 24.


[8]   Officer Siekman administered two FSTs to Skorvanek, the “gaze nystagmus”

      and the “walk and turn” tests. Tr. Vol. II, p. 25. Skorvanek failed both tests.

      Officer Siekman did not administer the commonly used “one leg stand” test

      because Skorvanek reported that he had a broken rib and was not physically

      able to complete the test. Officer Siekman then administered a PBT to

      Skorvanek. Skorvanek registered a 0.119 BAC on this test. Skorvanek later

      submitted to a certified breath test, registering a 0.10 BAC.




      Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017   Page 4 of 10
[9]    On June 19, 2012, the State charged Skorvanek with Class A misdemeanor

       operating a vehicle while intoxicated endangering a person and Class C

       misdemeanor operating a vehicle with a BAC over 0.08. The State also alleged

       that Skorvanek was a habitual offender. Following a March 29, 2016 bench

       trial, at which Skorvanek was tried in absentia, the trial court (1) found

       Skorvanek guilty of Class A misdemeanor operating a vehicle while intoxicated

       endangering a person, (2) merged the Class C misdemeanor charge into the

       Class A misdemeanor charge, and (3) found that Skorvanek was a habitual

       offender.


[10]   The trial court conducted a sentencing hearing on November 4, 2016, after

       which the trial court took Skorvanek’s sentence under advisement. On

       November 18, 2016, the trial court issued a sentencing order in which it

       sentenced Skorvanek as follows:


               1. The Court considers the nature and the circumstances of the
               crime.

               2. The Court considers the following aggravating factors
               pursuant to IC 35-38-1-7.1(a):
                      The Defendant’s history of criminal or delinquent
               behavior: Defendant is a lifelong resident of the State of Ohio.
               He has at least 41 prior felony convictions and 24 misdemeanor
               convictions. He has served multiple sentence in the Ohio
               Department of Corrections. The PSI reports that he had been to
               prison on six different occasions. The Defendant was out on bail
               from the state of Kentucky and the State of Ohio when he
               committed the instant offense. Defendant has completely failed
               to comply with his conditions of pretrial release, including that
               he appear at all hearings before this Court unless otherwise

       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017   Page 5 of 10
        ordered by the Court.

        3. The Court considers the following mitigating factors pursuant
        to IC 35-38-1-7.1(b):
               A. The Court does find that the crime is the result of
        circumstances likely to reoccur based [upon] the Defendant’s
        extensive criminal history and his lifelong history of drug and
        alcohol use and abuse.
               B. The Court does not find the Defendant to be a
        candidate for probation and/or short term imprisonment. The
        PSI reiterates in detail the number of times the Defendant has
        been in jail, on probation and to the Department of Corrections.
        None of the prior 41 felony convictions, 24 misdemeanor
        convictions or sentences imposed for the same, or terms of prior
        probation have deterred the Defendant from committing new
        crimes.
               The Court further finds the Defendant is not an
        appropriate candidate for community corrections. He does not
        reside in this state, has significant criminal history, has failed to
        appear before this Court as ordered, and the Defendant has
        shown complete disdain to this Court as evidenced by
        Defendant’s statement at sentencing when he said “I run. That is
        what I do.” The Court has good reason to believe he would
        continue to ignore and/or disregard the Court’s orders. In
        addition, the Court considers the need to obtain a Governor’s
        Warrant to secure his attendance at sentencing.
               C. Defendant is currently employed as a caregiver. The
        Court considers Defendant’s employment to be a mitigating
        factor. The Court does not give significant weight to this
        mitigator.
               D. The Defendant is an intelligent person. By his own
        testimony, he has over 6 years of college. He has been in AA for
        decades. He has been a sponsor for other addicts. He continues
        to make poor choices and decisions that create significant risk
        and danger to himself and others in the community.

        4. The Court finds that the Defendant has significant aggravating

Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017   Page 6 of 10
                factors and few mitigating factors.

                The Court now sentences the Defendant, John M. Skorvanek, as
                follows:

                1. Defendant, John M. Skorvanek, is hereby sentenced to 365
                days with 0 days suspended to probation for Operating a Motor
                Vehicle While Intoxicated endangering a person, a Class A
                Misdemeanor with an additional 8 years for the Habitual
                Substance Offender enhancement pursuant to I.C. 35-50-2-10.
                Pursuant to I.C. § 35-38-3-3(b)(3), Defendant shall serve his
                sentence in the Indiana Department of Correction.

                2. Defendant shall receive credit for 62 days previously served
                plus 62 days of good time credit for a total of 124 days. This
                credit is calculated as of November 18, 2016.


       Appellant’s App. Vol. II – Confidential, pp. 107-08 (underlining in original).2

       This appeal follows.



                                    Discussion and Decision
[11]   On appeal, Skorvanek contends that his aggregate nine-year sentence for

       operating a vehicle while intoxicated endangering a person and being a habitual

       offender is inappropriate. In challenging the appropriateness of his sentence,

       Skorvanek asserts that his sentence is inappropriate because “[a] nine-year

       sentence stands as a harsh punishment given the relatively minor nature of the




       2
         Additional portions of the sentencing order which outline certain fees and are not relevant to the term of
       years imposed by the trial court have been intentionally omitted from this memorandum decision.

       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017              Page 7 of 10
       underlying offense and the fact that Mr. Skorvanek suffers from a treatable drug

       addiction.” Appellant’s Br. p. 10. Skorvanek’s assertion, however, ignores the

       fact that Skorvanek’s failure to seek treatment or refrain from criminal activity,

       as evidenced in part by his significant criminal history, demonstrates an

       unwillingness to change his behavior and conform to the laws of Indiana and

       her neighboring states. In fact, Skorvanek’s actions more accurately

       demonstrate a complete disdain for the laws of this state and nation, as well as

       the safety of those around him.


[12]   Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[13]   With respect to the nature of Skorvanek’s offense, the record reveals that

       Skorvanek continued drinking after having been denied service from casino

       staff due to his obvious intoxication. In doing so, Skorvanek endangered

       himself, his companion, and the other motorists around him by operating a

       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017   Page 8 of 10
       vehicle while under the influence of alcohol. The penalty imposed for this act

       was one year. The remaining eight years of Skorvanek’s sentence were

       imposed in connection to Skorvanek’s status as a habitual offender. Skorvanek

       does not dispute the fact that he qualified as a habitual offender or argue that

       the eight years imposed in connection to his habitual offender status was

       unlawful.


[14]   As for Skorvanek’s character, the record reveals that Skorvanek has a criminal

       history that includes a surprising number of both misdemeanor and felony

       convictions. In fact, Skorvanek’s criminal history includes twenty-four

       misdemeanor convictions and forty-one felony convictions. Skorvanek’s

       criminal history also includes numerous prior probation violations. Despite the

       fact that Skorvanek has been to prison on at least six different occasions, he has

       failed to refrain from continued criminal behavior. He also has apparently

       failed to benefit from prior attempts at rehabilitation or “decades” long

       membership in Alcoholics Anonymous. Appellant’s App. Vol. II –

       Confidential, p. 108.


[15]   In addition, Skorvanek was out on bail awaiting trial in both Ohio and

       Kentucky at the time he committed the underlying offense. It also reflects

       poorly on Skorvanek’s character that he failed to comply with the terms of his

       pre-trial release, specifically that he failed to appear for hearings and trial and

       that the trial court had to obtain a Governor’s Warrant in order to secure

       Skorvanek’s attendance at sentencing. Skorvanek also displayed disdain for the

       trial court’s authority, explaining his failure to appear before the trial court by

       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017   Page 9 of 10
       saying “I run. That is what I do.” Appellant’s App. Vol. II – Confidential, p.

       108. Moreover, the Ohio County Probation Department indicated that a risk

       assessment of Skorvanek placed him “in the MODERATE risk category to re-

       offend.” Appellant’s App. Vol. II – Confidential, p. 97. Upon review, we

       conclude that Oliver has failed to prove that his sentence is inappropriate in

       light of the nature of his offenses and his character.


[16]   The judgment of the trial court is affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 58A01-1612-CR-2879 | June 20, 2017   Page 10 of 10
