                                                                                    FILED
MEMORANDUM DECISION
                                                                                Apr 24 2018, 8:59 am

Pursuant to Ind. Appellate Rule 65(D), this                                         CLERK
                                                                                Indiana Supreme Court
Memorandum Decision shall not be regarded as                                       Court of Appeals
                                                                                     and Tax Court
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                                             Curtis T. Hill, Jr.
Vonderheide & Knecht                                      Attorney General of Indiana
Lafayette, Indiana
                                                          Laura R. Anderson
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Austin D. Warren,                                         April 24, 2018

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          91A05-1710-CR-2412
        v.                                                Appeal from the White Superior
                                                          Court
State of Indiana,                                         The Honorable Robert B. Mrzlack,
                                                          Judge
Appellee-Plaintiff.
                                                          Trial Court Cause No. 91D01-1512-
                                                          F5-142




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018             Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Austin Warren (Warren), appeals his sentence following

      his conviction for failure to remain at the scene of an accident resulting in

      death, a Level 5 felony Ind. Code § 9-26-1-1.1(a)(2) (2015).


[2]   We affirm.


                                                    ISSUE
[3]   Warren presents a single issue on appeal, which we restate as: Whether

      Warren’s sentence is inappropriate in light of the nature of the offense and his

      character.


                      FACTS AND PROCEDURAL HISTORY
[4]   The facts underlying Warren’s conviction, as found by this court in his initial

      direct appeal, are as follows:


              On the evening of October 11, 2015, . . . Warren and his brother
              were seen drinking alcohol at a bar. Later that evening, as
              Warren drove his truck in White County, he struck a car driven
              by Deborah Barkas. Barkas’ thirteen-year-old daughter, H.O.,
              was in the car. Warren’s truck struck the driver’s side of Barkas’
              car with sufficient force to push the car off the road and into a
              ditch, where it rolled onto its passenger side and struck a
              telephone pole before the truck collided with it a second time.
              Warren’s truck was also heavily damaged, and an airbag
              deployed.


              Warren got out of his truck and approached Barkas’ car. He saw
              a large amount of blood. Warren briefly tried to open a car door


      Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018   Page 2 of 8
              and then fled on foot, pausing only to remove his license plate
              from his truck.


              Emergency responders arrived on the scene and extracted Barkas
              and H.O. from the car. Barkas was pronounced dead at the
              scene. H.O. was airlifted to a hospital but later died due to her
              injuries.


              A police officer found a receipt bearing Warren’s name in the
              truck. Several officers went to Warren’s home. He told the
              officers he had been drinking at home for most of the evening
              and, when informed that his truck had been involved in an
              accident, claimed it had been stolen. An officer smelled an odor
              of alcoholic beverages on Warren during their conversation.
              Meanwhile, back at the scene of the collision, officers collected
              DNA material from the truck’s air bag. DNA testing of the
              material revealed a match with Warren’s DNA.


      Warren v. State, No. 91A04-1611-CR-2607 (Ind. Ct. App., Jun. 29, 2017).


[5]   On December 18, 2015, the State filed an Information, charging Warren with

      Count I and II, failure to remain at the scene of an accident resulting in death,

      both Level 5 felonies. On June 21, 2016, Warren pleaded guilty to both charges

      without the benefit of a plea agreement. At the close of the evidence, the trial

      court sentenced Warren to three years on each Count, all to be severed

      consecutively, for a total of six years. Warren appealed.


[6]   On direct appeal, Warren challenged his conviction arguing that it violated his

      federal and state constitutional protections against double jeopardy. Also,

      Warren claimed that the trial court abused its discretion by imposing

      consecutive sentences. The State cross-appealed arguing that Warren waived
      Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018   Page 3 of 8
      appellate review on his double jeopardy claim since he pled guilty. First, we

      determined Warren had not waived his right to present his double jeopardy

      claim by pleading guilty. Finally, we concluded that under a double jeopardy

      analysis, one of Warren’s convictions should be vacated on remand because he

      is being punished twice for committing only one wrong; and that the trial court

      did not abuse its sentencing discretion.


[7]   On remand and during the resentencing hearing on September 21, 2017, the

      trial court vacated one of the charges for Level 5 felony failure to remain at the

      scene of an accident resulting in death, and imposed a maximum six-year

      sentence on the remaining Count.


[8]   Warren now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   Warren claims that his sentence is inappropriate in light of the nature of the

      offense and his character. Indiana Appellate Rule 7(B) empowers us to

      independently review and revise sentences authorized by statute if, after due

      consideration, we find the trial court’s decision inappropriate in light of the

      nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d

      1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s

      actions with the required showing to sustain a conviction under the charged

      offense, while the “character of the offender” permits a broader consideration of

      the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);

      Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears

      Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018   Page 4 of 8
       the burden of showing that both prongs of the inquiry favor a revision of his

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

       regard a sentence as appropriate 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 a myriad of other considerations that come to light in a given case.

       Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate

       sentence and how it is to be served.” Id.


[10]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). For his Level 5 felony failure to remain at the scene of an

       accident resulting in death, Warren faced a sentencing range of one to six years,

       with the advisory sentence being three years. I.C. § 35-50-2-6. Warren was

       sentenced to six years, which is the statutory maximum.


[11]   We first examine the nature of Warren’s offense. Warren argues that the “fact

       that two deaths occurred, rather than just one death, does not make the crime

       so severe to warrant the maximum sentence.” (Appellant’s Br. p. 16). Warren

       had been drinking at a bar prior to driving and he struck a car driven by Barkas,

       instantly killing Barkas and fatally injuring Barkas’ thirteen-year-old daughter,

       H.O., who later died due to her injuries. Prior to leaving the scene, Warren

       approached Barkas’ car, briefly tried to open a car door, and then fled on foot,

       pausing only to remove his license plate from his truck in an attempt to obstruct

       the police from determining his identity and involvement in the accident. The

       fact that Warren had been drinking and driving, failed to call 911 after

       Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018   Page 5 of 8
       observing that two victims had been seriously injured from the high impact

       accident and were in desperate need of medical assistance, and his attempts to

       conceal his involvement in the accident, makes Warren’s offense particularly

       egregious. Therefore, we conclude that Warren’s sentence is not inappropriate

       in light of the nature of his offense.


[12]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. While a record of arrests may not be used as

       evidence of criminal history, it can be “relevant to the trial court’s assessment of

       the defendant’s character in terms of the risk that he will commit another

       crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). Warren’s juvenile

       criminal history involves three prior adjudications in 2008 for residential entry,

       minor consuming alcohol, and possession of marijuana. As an adult, in 2011,

       Warren was arrested for receiving stolen property, and minor consuming

       alcohol, however, the State later dismissed those charges.


[13]   Warren’s alcohol and substance abuse also reflects poorly on his character.

       Warren admittedly stated that he began abusing drugs at age thirteen, and was

       smoking marijuana up to ten times a day between the age of sixteen and

       twenty-one, and synthetic marijuana up to seven times a day between the age of

       twenty and twenty-two. He was suspended from school after being found in

       possession of marijuana on school property. Warren continued to smoke

       Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018   Page 6 of 8
       synthetic marijuana up until his arrest in this case. As for alcohol, Warren

       began drinking alcohol at age twelve. His alcohol and substance abuse resulted

       in his suspension or expulsion from school.


[14]   Warren proposes a more lenient sentence, such as four years. 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 in light of

       the nature of the offense and the character of the offender. Reid, 876 N.E.2d at

       1116. Deference to the trial court “prevail[s] unless overcome by compelling

       evidence portraying in a positive light the nature of the offense (such as

       accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Warren’s

       actions of drinking and driving, striking another vehicle, failing to call 911

       when he observed that the two victims were seriously injured and in desperate

       need of medical assistance, and his attempts to conceal his involvement in the

       accident, show that Warren’s offense was clearly not accompanied by restraint,

       regard, or lack of brutality. In addition, Warren’s alcohol and drug abuse, as

       well as Warren’s prior criminal history, does not portray Warren in a positive

       light or show substantial virtuous traits or persistent examples of good character

       to overcome the trial court’s judgment.


[15]   After due consideration of the trial court’s decision, we cannot say that the

       sentence imposed by the trial court is inappropriate in light of the nature of

       Warren’s offense and his character.

       Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018   Page 7 of 8
                                             CONCLUSION
[16]   In sum, we conclude that Warren’s sentence is not inappropriate in light of the

       nature of the offense and his character.


[17]   Affirmed.


[18]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 91A05-1710-CR-2412 | April 24, 2018   Page 8 of 8
