      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),                              Apr 26 2016, 9:36 am
      this Memorandum Decision shall not be
                                                                              CLERK
      regarded as precedent or cited before any                           Indiana Supreme Court
                                                                             Court of Appeals
      court except for the purpose of establishing                             and Tax Court

      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                                       Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Franklin E. Heathscott,                                  April 26, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               79A02-1509-CR-1481
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court
      State of Indiana,                                        The Honorable Steven P. Meyer,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               79D02-1502-F5-11



      Mathias, Judge.


[1]   Franklin E. Heathscott (“Heathscott”) pleaded guilty in Tippecanoe Superior

      Court to Level 5 Felony operating a motor vehicle while privileges are forfeited


      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1481 | April 26, 2016       Page 1 of 6
      for life. Heathscott appeals the five-year sentence imposed for his Level 5 felony

      conviction arguing that the 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]   In 1997, Heathscott’s driving privileges were forfeited for life. In 2000 and 2014,

      he was convicted of Class C felony operating a motor vehicle while privileges

      are forfeited for life. For the 2014 conviction, Heathscott was ordered to serve a

      seven-year sentence, with five years executed through community corrections

      and two years suspended to supervised probation.

[4]   On February 5, 2015, while he was on house arrest for the 2014 conviction,1

      Heathscott was charged with Level 5 felony operating a motor vehicle while

      privileges are forfeited for life. On August 7, 2015, Heathscott pleaded guilty to

      the charge without a plea agreement.

[5]   At the sentencing hearing, Heathscott stated that his co-worker was unable to

      drive him to work on February 5, 2015, and he drove the vehicle knowing that

      his driving privileges were forfeited for life because he was afraid he would lose

      his job if he failed to report to work. He requested that the trial court order him

      to serve his sentence in community corrections. In support of that request,



      1
       Heathscott was also on probation for a misdemeanor home improvement fraud conviction in Tippecanoe
      County and a 2006 Class B felony incest conviction in Fountain County.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1481 | April 26, 2016      Page 2 of 6
      Heathscott argued that his guilty plea, employment history, the nature of the

      offense, and the fact that he provides support for his disabled wife were

      mitigating circumstances.


[6]   The State argued that Heathscott should be sentenced to five years executed in

      the Department of Correction. The State alleged the following aggravating

      circumstances: Heathscott’s significant criminal history, consisting of seven

      felony and thirteen misdemeanor convictions and numerous petitions to revoke

      probation, that Heathscott was on probation in three cases when the offense

      was committed, that prior rehabilitative attempts have failed, and finally the

      “repetitive nature of the offense.” Tr. p. 56.

[7]   The trial court considered the parties’ arguments and concluded that the

      aggravating circumstances outweighed the mitigating circumstances. The trial

      court ordered Heathscott to serve a five-year sentence but determined that it

      was appropriate to give him “one last chance on community corrections,”

      particularly given the nature of the offense. Tr. pp. 62-63. Therefore, the court

      ordered three years to be served at the Department of Correction and two years

      to be served as a direct placement to community corrections. Heathscott now

      appeals.


                                        Discussion and Decision

[8]   Heathscott argues that his five-year sentence is in appropriate in light of the

      nature of the offense and the character of the offender. It is well established that

      matters of sentencing reside within the discretion of the trial court, and “the


      Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1481 | April 26, 2016   Page 3 of 6
       trial court’s judgment should receive considerable deference.” Hines v. State, 30

       N.E.3d 1216, 1225 (Ind. 2015). However, appellate review and revision of a

       convicted defendant’s sentence is available “if, after due consideration of the

       trial court's sentencing decision, [our court] finds that . . . ‘the sentence is

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

       offender.’” Id. (quoting Ind. Appellate Rule 7(B)). Heathscott bears the burden

       of persuading us that his sentence is inappropriate. See Rutherford v. State, 866

       N.E.2d 867, 873 (Ind. Ct. App. 2007).


[9]    The principal role of Appellate Rule 7(B) review “should be to attempt to

       leaven the outliers, and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). When we review the appropriateness of a sentence, we may

       consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence was

       suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).


[10]   Heathscott was convicted of a Level 5 felony. The sentencing range for a Level

       5 felony is one to six years, with the advisory sentence being three years. Ind.

       Code § 35-30-2-6(b). Heathscott was ordered to serve a five-year sentence, three

       years to be served at the Department of Correction and two years to be served

       as a direct placement to community corrections.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1481 | April 26, 2016   Page 4 of 6
[11]   Heathscott points out that his offense was relatively minor, and indeed, it was a

       lower level felony. In addition, he admitted that his decision to drive a vehicle

       was not smart, but he did so because he was afraid that he would lose his job if

       he was not able to get to work. However, the context is much larger for this

       offense.


[12]   Heathscott was on house arrest for his 2014 felony conviction for this same

       offense on the date he committed the instant offense. Heathscott’s driving

       privileges were forfeited for life in 1997. His first felony conviction for operating

       a motor vehicle while privileges are forfeited for life occurred in 2000.

       Heathscott’s additional driving related offenses are as follows: Class A

       misdemeanor operating while intoxicated in 1989, Class D felony operating

       while intoxicated in 1990, three counts of Class A misdemeanor driving while

       suspended in 1991, two counts Class A misdemeanor driving while suspended

       in 1992 in two separate causes, Class A misdemeanor operating while

       intoxicated and Class A misdemeanor driving while suspended in 1995,

       misdemeanor driving while suspended in 1996, and Class D felony operating a

       vehicle as a habitual traffic violator in 1997.

[13]   Heathscott’s criminal history is not limited to driving-related offenses. He has

       been convicted of Class B felony incest and has three Class D felony theft

       convictions. He also has misdemeanor convictions for resisting law

       enforcement (two convictions), theft, home improvement fraud, and failure of a

       sex offender to possess identification. He has been adjudicated a habitual

       substance offender.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1481 | April 26, 2016   Page 5 of 6
[14]   Throughout Heathscott’s criminal history, numerous petitions to revoke

       probation have been filed. He was on probation for the B felony incest

       conviction and the misdemeanor home improvement fraud conviction when he

       committed this offense. In addition, as the trial court noted during sentencing,

       Heathscott has been previously been given opportunities to serve his sentences

       through community corrections, but he has violated the terms of his community

       corrections placements. As we noted above, Heathscott was serving the

       sentence imposed for his 2014 Class C felony conviction for operating a motor

       vehicle while privileges are forfeited for life through community corrections

       when he committed the instant offense.

[15]   The trial court thoughtfully considered the reason Heathscott committed this

       offense and his decision to plead guilty and weighed those circumstances

       against his extensive criminal history when it crafted Heathscott’s sentence. For

       all of these reasons, we conclude that Heathscott’s five-year sentence, with three

       years to be served at the Department of Correction and two years to be served

       as a direct placement to community corrections, is not inappropriate in light of

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

[16]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1509-CR-1481 | April 26, 2016   Page 6 of 6
