MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Aug 18 2017, 5:32 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James A. Pequignot, Jr.,                                 August 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1702-CR-466
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D06-1605-F6-620



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-466 | August 18, 2017         Page 1 of 7
                                             Case Summary
[1]   James A. Pequignot, Jr., appeals the aggregate two and one-half year sentence

      imposed by the trial court following his guilty plea and conviction for two

      counts of level 6 felony resisting law enforcement, and one count of class A

      misdemeanor operating a vehicle while intoxicated. He contends that his

      sentence is inappropriate in light of the nature of the offenses and his character.

      Concluding that he has not met his burden to demonstrate that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On May 23, 2016, Fort Wayne Police Department Officer A. Maurer observed

      a silver Ford Focus, driven by Pequignot, traveling westbound on Washington

      Boulevard. Officer Maurer observed Pequignot change lanes without using an

      appropriate turn signal. Officer Maurer activated his emergency lights to

      initiate a traffic stop, but Pequignot continued driving, abruptly switching lanes

      multiple times before finally coming to a stop approximately 25 seconds later.


[3]   Pequignot exited his vehicle and faced Officer Maurer. Officer Maurer ordered

      him to get back into the vehicle, turn off the vehicle, and place his keys on the

      roof. Pequignot yelled and asked if he was being detained. Officer Maurer

      answered, “Yes you are right now.” Appellant’s App. Vol. 2 at 20. Pequignot

      yelled again to question why he was being detained. Officer Maurer repeated

      that Pequignot needed to comply with his orders, but Pequignot refused. At

      that point, other officers arrived and a female passenger exited the vehicle and


      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-466 | August 18, 2017   Page 2 of 7
      complied with orders. After the female exited the vehicle, Pequignot sped off in

      the vehicle. He drove westbound in an alley, jumped out of the vehicle, and

      ran. Officers eventually caught up to Pequignot and were able to apprehend

      him. However, Pequignot forcibly resisted as the officers struggled to take him

      into custody. Officer M. Cline suffered an injury to his shoulder while

      attempting to secure Pequignot. Pequignot subsequently submitted to two

      chemical breath tests that revealed that he had a blood alcohol content of .123%

      and .134% respectively. He also admitted that he had been drinking beer prior

      to driving.


[4]   The State charged Pequignot with two counts of level 6 felony resisting law

      enforcement, class A misdemeanor resisting law enforcement, class A

      misdemeanor operating a vehicle while intoxicated, class C misdemeanor

      operating a vehicle with .08 or more alcohol concentration, and a class C

      infraction of failing to give a signal of intention to turn. In July 2016,

      Pequignot pled guilty to all counts. The trial court took the guilty plea under

      advisement and Pequignot was placed into the Drug Court program pursuant to

      a written participation agreement. Among other things, Pequignot agreed to

      successfully complete all assigned treatment programs, keep all appointments

      with his case manager, submit to random drug screens and not submit positive

      or diluted screens, and to appear in court when instructed. In December 2016,

      the Allen County Drug Court case manager filed a petition to terminate

      Pequignot’s Drug Court participation and to schedule sentencing. The petition

      stated that Pequignot violated the terms and conditions of his participation by


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      failing to submit to random urine screens on three occasions, providing a

      positive screen for alcohol and cocaine on one occasion, and providing diluted

      screens on three occasions. The petition also stated that Pequignot failed to

      successfully complete substance abuse treatment and transitional living, and

      failed to appear in court or meet with his case manager as instructed.


[5]   The trial court held a hearing on the petition to terminate on January 3, 2017.

      Pequignot admitted that he violated the terms of his participation. Indeed, the

      record indicates that, rather than participate in the Drug Court program as

      agreed, he chose to “take off” and to “stay on the run” for a period of at least

      four months. Tr. at 7-8. The trial court granted the petition to terminate and

      scheduled a sentencing hearing for February 3, 2017.


[6]   During sentencing, the trial court identified mitigating factors as Pequignot’s

      guilty plea, his acceptance of responsibility, and his remorse. The court

      identified his extensive criminal record and his failed efforts at rehabilitation as

      aggravating factors. The court entered judgment of conviction on two counts of

      level 6 felony resisting law enforcement and one count of class A misdemeanor

      operating while intoxicated. The trial court merged the class A misdemeanor

      resisting law enforcement count into one of the level 6 felony counts, and

      dismissed the class C misdemeanor operating a vehicle while intoxicated count.

      The court imposed an aggregate sentence of two and one-half years. This

      appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-466 | August 18, 2017   Page 4 of 7
                                     Discussion and Decision
[7]   Pequignot claims that his sentence is inappropriate and invites this Court to

      revise his 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. Our review of the sentence should focus on the forest—the

      aggregate sentence—rather than the trees—consecutive or concurrent, number

      of counts, or length of the sentence on any individual count. Pierce v. State, 949

      N.E.2d 349, 352 (Ind. 2011).


[8]   Regarding the nature of the offenses, the advisory sentence is the starting point

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

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

      for level 6 felonies is between six months and two and one-half years, with the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-466 | August 18, 2017   Page 5 of 7
      advisory sentence being one year. Ind. Code § 35-50-2-7. A person who

      commits a class A misdemeanor shall be imprisoned for a fixed term of not

      more than one year. Ind. Code § 35-50-3-2. Here, the trial court sentenced

      Pequignot to concurrent two-and-one-half-year terms for his two level 6

      felonies, and a concurrent one year sentence for his class A misdemeanor, for

      an aggregate sentence of two and one-half years. Although the nature of his

      conduct which resulted in this aggregate sentence was not particularly

      egregious, it was not particularly minor either. Pequignot drove a vehicle while

      intoxicated, fled from police both by vehicle and on foot, and forcibly resisted

      as the officers tried to take him into custody. Indeed, his behavior caused injury

      to one of the officers. Nothing about the nature of these offenses convinces us

      that two and one-half years is an inappropriate sanction.


[9]   Pequignot does not fare any better when we consider his character. 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).

      Pequignot’s criminal history is extensive to say the least. The record indicates

      that he has fifteen prior misdemeanor convictions and eight prior felony

      convictions. As noted by the trial court, he has been “given the benefit of every

      [rehabilitation] program that’s available here in Allen County.” Tr. at 20.

      Nevertheless, his probation has been revoked four times and he has had

      previously suspended sentences modified three times and revoked twice. He

      has had both his parole and a work release placement revoked once. Moreover,

      he was on probation when the current offenses were committed, and when he


      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-466 | August 18, 2017   Page 6 of 7
       was again given leniency and referred to Drug Court to aid him in his

       rehabilitation, he absconded from the program. Pequignot’s continued

       disregard for the law and inability to benefit from rehabilitative services reflects

       poorly on his character.


[10]   On appeal, Pequignot simply suggests that a more “appropriate sentence for

       this case would have been no more than the [level 6 felony] advisory sentence

       of 1 year.” Appellant’s Br. at 14. However, “Appellate Rule 7(B) analysis is not

       to determine whether another sentence is more appropriate but rather whether

       the sentence imposed is inappropriate.” Conley v. State, 972 N.E.2d 864, 876

       (Ind. 2012). In sum, Pequignot has not persuaded us that his aggregate

       sentence is inappropriate in light of the nature of the offenses and his character.

       Thus, we affirm the sentence imposed by the trial court.


[11]   Affirmed.


       Baker, J., and Barnes, J., concur.




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