MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              Mar 10 2016, 9:15 am
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
Neil L. Weisman                                          Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Adrian Forrest,                                          March 10, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1508-CR-1285
        v.                                               Appeal from the
                                                         St. Joseph Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Elizabeth C. Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1405-FD-362



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016         Page 1 of 7
[1]   Adrian Forrest (“Forrest”) pleaded guilty to operating a motor vehicle while

      suspended as a habitual traffic violator (“HTV”),1 a Class D felony, and

      operating a motor vehicle while intoxicated 2 as a Class C misdemeanor and was

      ordered to serve an aggregate two-year-sentence. Forrest appeals, raising the

      following issue for our review: whether his sentence is inappropriate in light of

      the nature of the offense and the character of the offender.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On May 17, 2014, Forrest was pulled over in St. Joseph County, Indiana when

      he failed to signal a turn. At that time, Forrest informed the officer that his

      driver’s license was suspended and gave a false name. Forrest also exhibited

      signs of intoxication. It was later determined that Forrest did not have a valid

      driver’s license because it had been suspended due to his status as an HTV.

      Forrest was arrested, and the State charged him with Class D felony operating a

      motor vehicle while suspended as an HTV and Class C misdemeanor operating

      a motor vehicle while intoxicated.


[4]   On May 7, 2015, Forrest pleaded guilty to both counts as charged without the

      benefit of a plea agreement. A presentence investigation report (“PSI”) was




      1
       See Ind. Code § 9-30-10-16. We note that this statute was amended effective July 1, 2014; however, Forrest
      committed his offense in May 2014, and we will apply the statute in effect at that time.
      2
          See Ind. Code § 9-30-5-2(a).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016            Page 2 of 7
      ordered, and a sentencing hearing was held on July 30, 2015. In the PSI, the

      probation department recommended that Forrest be sentenced to three years

      with two years suspended and the executed portion to be served in community

      corrections. Forrest requested that the trial court accept the recommendation of

      the probation department. The State did not take a position as to whether

      community corrections was appropriate, but did point out that Forrest had gone

      missing from community corrections placement in the past and had “difficulty”

      completing parole and probation in the past. Sent. Tr. at 7. The State also

      noted Forrest’s extensive criminal history.


[5]   The trial court found the fact that Forrest pleaded guilty without the benefit of a

      plea agreement was a mitigating factor. As aggravating factors, the trial court

      identified Forrest’s extensive criminal history, pending charges that occurred

      while he was on bond in this case, and prior failures through community

      corrections, parole, and probation. Due to these past failures, the trial court

      found that community corrections was “not a viable option at this point.” Id. at

      8. The trial court then sentenced Forrest to two years for his operating a motor

      vehicle while suspended as an HTV conviction and sixty-five days for his

      operating a motor vehicle while intoxicated conviction, with the sentences to

      run concurrent with each other for an aggregate sentence of two years executed

      in the Indiana Department of Correction. Forrest now appeals.


                                     Discussion and Decision
[6]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

      statute if we deem it to be inappropriate in light of the nature of the offense and
      Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016   Page 3 of 7
      the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

      App. 2014). The question under Appellate Rule 7(B) is not whether another

      sentence is more appropriate; rather, the question is whether the sentence

      imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

      2008). It is the defendant’s burden on appeal to persuade the reviewing court

      that the sentence imposed by the trial court is inappropriate. Chappell v. State,

      966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[7]   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.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day 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.” Id. at 1224.


[8]   Forrest argues that his sentence was inappropriate in light of the nature of his

      offense and his character. Forrest contends that the nature of his offense is not

      so egregious as to warrant a sentence over the advisory sentence. As to the

      character of the offender, Forrest asserts that his expression of remorse, his plea

      of guilty without the benefit of a plea agreement, the hardship his imprisonment




      Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016   Page 4 of 7
      will cause his children, and the fact that he is only a moderate risk to reoffend

      all show that his sentence was inappropriate.3


[9]   Forrest pleaded guilty to Class D felony operating a motor vehicle while

      suspended as an HTV and Class C misdemeanor operating a motor vehicle

      while intoxicated. A person who commits a Class D felony shall be imprisoned

      for a fixed term of between six months and three years with the advisory being

      one and one-half years. Ind. Code § 35-50-2-7. A person who commits a Class

      C misdemeanor shall be imprisoned for a fixed term of not more than sixty

      days. Ind. Code § 35-50-3-4. In addition to any other criminal penalty that

      may be imposed for an offense of operating a vehicle while intoxicated, the

      court shall order that the person be imprisoned for at least five days or that the

      person perform at least one hundred eighty hours of community restitution or

      service. Ind. Code § 9-30-5-15(a)(1). Here, the trial court sentenced Forrest to

      two years for his Class D felony conviction and sixty-five days for his Class C

      misdemeanor conviction and ordered the sentences to be served concurrently

      for a total sentence of two years executed.




      3
        To the extent Forrest argues that the sentence or mitigators should be reviewed for an abuse of discretion,
      “‘an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in
      sentencing the defendant.’” Keller v. State, 987 N.E.2d 1099, 1121 n.11 (Ind. Ct. App. 2013) (quoting King v.
      State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008)), trans. denied. Further, inappropriate sentence and abuse of
      discretion claims are to be analyzed separately. Id. Therefore, we consider only whether Forrest’s sentence is
      inappropriate, and the failure to make a cogent argument regarding whether the trial court abused its
      discretion in sentencing him results in waiver of that issue. Id.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016              Page 5 of 7
[10]   As to the nature of the offense, Forrest was pulled over for failing to signal a

       turn and was discovered to be operating a vehicle while suspended as an HTV

       and while intoxicated. At the time, he committed the present offense, Forrest

       was on probation for a previous conviction for operating a vehicle while

       suspended as an HTV. The present offense is actually his third conviction for

       this crime.


[11]   As to his character, Forrest has an extensive criminal history consisting of

       multiple offenses. He has eight prior misdemeanor convictions and nine prior

       felony convictions. These convictions include drug offenses, property crimes,

       crimes involving victims, and traffic-related offenses. Forrest has previously

       been on probation six times and has had his probation revoked two times. He

       has also absconded from previous placement in community corrections and had

       “difficulty” when previously on parole. Sent. Tr. at 7. Additionally, while on

       bond in the present case, Forrest was alleged to have committed two more

       felony offenses. We conclude that Forrest’s two-year executed sentence is not

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

       offender.


[12]   Additionally, to the extent that Forrest argues that his sentence is inappropriate

       because the trial court did not order the executed portion to be served in

       community corrections, we do not agree. Placement in a community

       corrections program is an alternative to serving a sentence in the Department of

       Correction and is made at the sole discretion of the trial court. Brown v. State,

       947 N.E.2d 486, 489 (Ind. Ct. App. 2011), trans. denied. A defendant is not

       Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016   Page 6 of 7
       entitled to serve his sentence in a community corrections program, but as with

       probation, placement in the program is a matter of grace and a conditional

       liberty that is a favor, not a right. Id. The location where a sentence is to be

       served is an appropriate focus for application of our authority to review and

       revise a sentence; however, it will be quite difficult for a defendant to prevail on

       a claim that the placement of his or her sentence is inappropriate because, as a

       practical matter, trial courts are aware of the feasibility of alternative

       placements in particular counties or communities. Fonner v. State, 876 N.E.2d

       340, 343 (Ind. Ct. App. 2007). Further, the question under Appellate Rule 7(B)

       is not whether another sentence is more appropriate, but rather, whether the

       sentence imposed is inappropriate. Id. at 344 (emphasis in original).


[13]   Here, the evidence showed that Forrest had an extensive criminal history, had

       incurred pending charges for crimes that occurred while he was on bond in this

       case, and had prior failures through community corrections, parole, and

       probation. Due to these past failures, the trial court found that community

       corrections was “not a viable option at this point.” Sent. Tr. at 8. A defendant

       challenging the placement of a sentence must convince this court that the given

       placement is itself inappropriate. Fonner, 876 N.E.2d at 344. We cannot say

       that Forrest’s placement in the Department of Correction is inappropriate.


[14]   Affirmed.


[15]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1508-CR-1285 | March 10, 2016   Page 7 of 7
