Pursuant to Ind.Appellate Rule 65(D), this
                                                                                Oct 17 2013, 5:31 am
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:

DORI NEWMAN                                     GREGORY F. ZOELLER
Newman & Newman, P.C.                           Attorney General of Indiana
Noblesville, Indiana
                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JUSTIN DENT,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 29A03-1304-CR-128
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Petitioner.                     )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                            The Honorable Gail Bardach, Judge
                             Cause No. 29D06-1207-FD-6477


                                     October 17, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Justin Dent (Dent), appeals his sentence following a

conviction for operating a vehicle as a habitual traffic violator, a Class D felony, Ind.

Code § 9-30-10-16(a)(1).

      We affirm.

                                         ISSUE

      Dent raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion when it denied Dent’s motion for an alternative misdemeanor

sentence.

                       FACTS AND PROCEDURAL HISTORY

      On February 2, 2012, Dent was cited for his tenth traffic violation in less than six

years. The following day, on February 3, 2012, the Indiana Bureau of Motor Vehicles

determined that Dent was a habitual traffic violator, and he was notified by mail that his

status would result in a five-year suspension of driving privileges. On July 9, 2012,

Officer Eric Cunningham of the Noblesville Police Department (Officer Cunningham)

stopped Dent, who was driving a Chevrolet sport utility vehicle. Officer Cunningham

noted the automobile’s darkly tinted windows and also recognized it as a vehicle

registered to a habitual traffic violator. Dent admitted to Officer Cunningham during the

course of the traffic stop that he was aware his license was suspended, but he needed to

get “to and from work.” (Tr. p. 41).



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       On July 13, 2012, the State filed an Information charging Dent with operating a

vehicle while being a habitual traffic violator, a Class D felony, I.C. § 9-30-10-16(a)(1).

On February 20, 2013, the trial court conducted a bench trial and found Dent guilty as

charged. On March 20, 2013, the trial court held a sentencing hearing. During the

hearing, Dent orally moved for an alternative misdemeanor sentence (AMS). Dent’s

request for AMS was denied, and the trial court sentenced him to 365 days at the

Department of Correction to be served on work release, with his driving privileges

suspended for life.

       Dent now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       Dent contends that the trial court abused its discretion when sentencing him. A

trial court’s sentencing decision is only reviewed for abuse of discretion. Monegan v.

State, 756 N.E.2d 499, 501 (Ind. 2001). An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances before the trial court.

Butler v. State, 951 N.E.2d 641, 645 (Ind. Ct. App. 2011). We do not reweigh the

evidence, and we consider conflicting evidence in a light most favorable to the trial

court’s ruling. Id.

       The parties appear to be somewhat confused regarding the availability of and

procedural requirements for AMS. At his sentencing hearing, Dent asked the trial court

to modify his conviction to a misdemeanor “either at the beginning or the back end of



                                            3
[his] sentence.” (Tr. p. 70). There are distinct statutory sources for each of these options.

The trial court, however, denied Dent’s modification request without distinguishing them.

       Where a person has committed a Class D felony, Indiana Code section 35-50-2-7

gives the trial court broad discretion to “enter judgment of conviction of a Class A

misdemeanor and sentence accordingly.” I.C. § 35-50-2-7(b). This option is time-

sensitive, available only between conviction and sentencing. Our supreme court has

clarified this, explaining that the “legislature has not granted the trial court the authority

to modify the conviction at any time other than while delivering the sentence.” State v.

Brunner, 947 N.E.2d 411, 416 (2011).          In this context, the possibility of AMS is

contingent on the trial court’s discretionary leniency.

       Alternatively, section 35-38-1-1.5(a) has more specific requirements, and

provides, in relevant part:

       A court may enter a judgment of conviction as a Class D felony with the
       express provision that the conviction will be converted to a conviction as a
       Class A misdemeanor only if the person pleads guilty to a Class D felony
       that qualifies for consideration as a Class A misdemeanor under I.C. § 35-
       50-2-7.

The trial court has far less discretion in this type of scenario. Any AMS modification

under section 35-38-1-1.5 is contingent on a guilty plea, which Dent did not enter. Thus,

section 35-38-1-1.5 was unavailable.

       In applying section 35-50-2-7(b), Dent argues that the trial court abused its

discretion by refusing to evaluate the motion on its own merits. His contention is based

on the trial court’s explanation that its “standard practice is not to allow AMS unless the

                                              4
prosecutor agrees to it.” (Tr. p. 72). Dent characterizes the trial court’s response to his

motion as a passive substitution of the State’s judgment for its own.

       We conclude that the trial court did not abuse its discretion. The facts include a

driving record that had already earned Dent a five-year license suspension. Indiana Code

section 9-30-10-4(c) states that anyone “who has accumulated at least ten (10) judgments

within a ten (10) year period” shall be designated a habitual traffic violator, provided that

at least one of said judgments was for a “major” violation (i.e., a violation involving

either the death or injury of another, or for operating a vehicle while intoxicated). Dent

achieved this status in less than six years, with ten judgments against him—two of them

for operating a vehicle while intoxicated—between March of 2006 and February of 2012.

He also has two convictions unrelated to vehicle operation, i.e., battery in 2004 and

possession of paraphernalia in 2009. In light of these facts, the trial court properly

declined to exercise its discretion to show leniency.

       Additionally, we note that the trial court declined to accept the State’s formal

sentencing recommendation of 545 days. Just as the trial court is not obligated to

accommodate the State’s sentencing wishes, neither is it bound to grant the Defendant’s

AMS motion under section 35-50-2-7(b). The fact that neither party got precisely what it

requested strongly indicates that judicial discretion was indeed exercised in this case.

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

when it denied Dent’s motion for AMS.

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      Affirmed.

ROBB, C. J. and KIRSCH, J. concur




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