MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Jan 27 2017, 9:50 am
regarded as precedent or cited before any
court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana

                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marilyn Viers,                                           January 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1609-CR-2070
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D04-1512-F6-1217



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1609-CR-2070 | January 27, 2017     Page 1 of 5
                                             Case Summary
[1]   Marilyn Viers appeals the sentence imposed by the trial court following her

      guilty plea to level 6 felony operating a vehicle while intoxicated with a prior

      conviction. Her sole contention on appeal is that her two-year sentence, one

      year to be served on home detention and one year suspended to probation, is

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

      Concluding that she has not met her burden to demonstrate that her sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On December 22, 2015, Viers consumed beer at a friend’s house. She then

      returned to her home before deciding to leave again to go shopping. During

      that shopping trip, she was involved in a vehicular collision in a parking lot.


[3]   The State charged Viers with level 6 felony operating a vehicle while

      intoxicated with a prior conviction, class A misdemeanor operating a vehicle

      while intoxicated endangering a person, and class D misdemeanor operating a

      vehicle with a BAC of .08 or more. Viers pled guilty, without a plea agreement,

      to level 6 felony operating a vehicle while intoxicated with a prior conviction.

      The trial court imposed a two-year sentence, with one year to be served on

      home detention, and the other year suspended to probation. This appeal

      ensued.




      Court of Appeals of Indiana | Memorandum Decision 20A04-1609-CR-2070 | January 27, 2017   Page 2 of 5
                                     Discussion and Decision
[4]   Viers claims that her sentence is inappropriate and invites this Court to revise

      her sentence pursuant to Indiana Appellate Rule 7(B) which provides that we

      may revise a sentence authorized by statute if, after due consideration of the

      trial court’s decision, we find that the sentence “is inappropriate in light of the

      nature of the offense and the character of the offender.” The defendant bears

      the burden to persuade this Court that his or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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. In reviewing a sentence, we consider all aspects of the penal

      consequences imposed by the trial court in sentencing the defendant, including

      whether a portion of the sentence is ordered suspended “or otherwise crafted

      using any of the variety of sentencing tools available to the trial judge.”

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


[5]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

      Court of Appeals of Indiana | Memorandum Decision 20A04-1609-CR-2070 | January 27, 2017   Page 3 of 5
      for a level 6 felony is between six months and two and one-half years, with an

      advisory sentence of one year. Ind. Code § 35-50-2-7(b). The trial court here

      imposed a two-year aggregate sentence, with one year to be served on home

      detention and the second year suspended to probation. In challenging the

      appropriateness of her two-year sentence, Viers emphasizes that she was

      involved in a minor collision, that she tested only slightly above the legal

      alcohol limit, and that “she did not hurt anyone, nor intend to hurt anyone.”

      Appellant’s Br. at 8. Although we agree with Viers that her offense was by no

      means the most egregious we could imagine, we will not downplay the

      seriousness and dangerousness of her behavior, and we are not persuaded by

      her self-proclaimed lack of intent to cause damage to others. She consumed

      alcohol and admittedly drove multiple times that afternoon before eventually

      being caught for such behavior due to the collision. The nature of her offense

      does not convince us that a two-year sentence served first on home detention

      and then suspended to probation is inappropriate.


[6]   Viers does not fare much better when we consider her character. Regarding the

      character of the offender, one relevant consideration is the defendant’s criminal

      history. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Viers

      has a criminal history consisting of misdemeanor convictions for reckless

      driving, carrying a handgun without a license, and two prior convictions for

      operating a vehicle while intoxicated. She also has a prior felony operating a

      vehicle while intoxicated conviction for which she was on probation when she

      committed the instant offense. Viers has clearly demonstrated a pattern of


      Court of Appeals of Indiana | Memorandum Decision 20A04-1609-CR-2070 | January 27, 2017   Page 4 of 5
      disregarding the law by repeatedly committing the offense of operating a vehicle

      while intoxicated, and she has been unwilling or unable to reform her behavior

      despite the trial court’s previous grants of leniency. We commend Viers for the

      recent strides toward treatment and rehabilitation that the record indicates that

      she has made, but we remain unconvinced that the enhanced sentence imposed

      by the trial court was inappropriate based upon her character. 1 Viers has not

      met her burden to demonstrate that her sentence is inappropriate in light of the

      nature of the offense or her character, and therefore we affirm.


[7]   Affirmed.


      Riley, J., and Altice, J., concur.




      1
        As part of her character argument, Viers requests that we revise her sentence to a fully suspended sentence
      because she “is unable to afford the home detention fees” and “home detention prevents her from earning
      extra income.” Appellant’s Br. at 7-8. We note that the record indicates that the trial court fully considered
      Viers’s ability to pay the costs associated with her crime and her sentence. Indeed, after finding Viers to be
      indigent, the trial court excused Viers from paying a public defender reimbursement fee, suspended a fine,
      and appointed pauper appellate counsel. Moreover, the court scheduled a financial compliance hearing for
      March 2017 to address any additional matters. We decline Viers’s invitation to revise her sentence on this
      basis.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1609-CR-2070 | January 27, 2017             Page 5 of 5
