MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Mar 19 2018, 9:19 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                  Attorney General
Richmond, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Billy Joe Freeman,                                       March 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A05-1710-CR-2526
        v.                                               Appeal from the Wayne County
                                                         Superior Court 3
State of Indiana,                                        The Honorable Darrin M.
Appellee-Plaintiff                                       Dolehanty, Judge
                                                         Trial Court Cause No.
                                                         89D03-1703-F6-104



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 89A05-1710-CR-2526 | March 19, 2018        Page 1 of 7
                                          Case Summary
[1]   Billy Joe Freeman pled guilty to Level 6 felony operating a vehicle with an

      alcohol concentration equivalent to at least 0.15 gram of alcohol per 100

      milliliters of blood and admitted that he is a habitual vehicular substance

      offender (HVSO). The trial court imposed a sentence of two years enhanced by

      five years for the HVSO finding. Freeman now appeals, arguing that his seven-

      year sentence is inappropriate. We affirm.



                            Facts and Procedural History
[2]   By March 2017, Freeman, age forty-six, had amassed “a fairly amazing

      criminal record” consisting of twenty-three convictions (eight of which were

      felonies). Tr. Vol. II p. 73. At least ten of the twenty-three convictions were for

      alcohol-related offenses, including four for operating while intoxicated (1993,

      2002, 2004, and 2013). For his convictions, Freeman has been sentenced to jail

      time, suspended jail time, prison time, suspended prison time, informal

      probation, formal probation, fines, community service, license suspensions,

      home detention, and substance-abuse treatment. Significantly, in 2007,

      Freeman was sentenced to ten years in prison for possession of a controlled

      substance and being a habitual substance offender. In addition, Freeman has

      had his probation revoked three times and his home detention revoked once.


[3]   On March 3, 2017—while Freeman was out on pretrial bond for charges of

      residential entry, resisting law enforcement, and battery resulting in bodily


      Court of Appeals of Indiana | Memorandum Decision 89A05-1710-CR-2526 | March 19, 2018   Page 2 of 7
      injury—a Richmond Police Department officer pulled over Freeman for failing

      to signal a turn. During the stop, the officer observed that Freeman showed

      signs of intoxication, including the odor of an alcoholic beverage, impaired

      dexterity, and imbalance. Freeman admitted that he had consumed beer before

      driving. Freeman agreed to take a blood test, which revealed that he had an

      alcohol concentration equivalent to 0.226 gram of alcohol per 100 milliliters of

      his blood, which is nearly three times the legal limit.


[4]   Thereafter, the State charged Freeman with Count I: Level 6 felony operating a

      vehicle while intoxicated (based on a prior conviction within five years) and

      Count II: Level 6 felony operating a vehicle with an alcohol concentration

      equivalent to at least 0.15 gram of alcohol per 100 milliliters of blood (based on

      a prior conviction within five years). The State also alleged that Freeman was

      an HVSO based on his 2004 and 2013 operating-while-intoxicated convictions.


[5]   After several continuances (requested mostly by Freeman), a jury trial was set

      for Wednesday, August 23, 2017. On the Monday before trial, Freeman filed a

      notice of intent to plead guilty. A guilty-plea hearing was held that day.

      Freeman pled guilty to Count II and admitted being an HVSO. In exchange,

      the State dismissed Count I. There was no agreement as to Freeman’s

      sentence. The court accepted Freeman’s guilty pleas and set the matter for

      sentencing.


[6]   At the sentencing hearing, the trial court identified two aggravators: (1)

      Freeman’s “abysmal criminal record” and (2) the fact that many of Freeman’s


      Court of Appeals of Indiana | Memorandum Decision 89A05-1710-CR-2526 | March 19, 2018   Page 3 of 7
      twenty-three prior convictions are “directly related to the current conviction, in

      that they involve the operation of a motor vehicle, the abuse of alcohol or

      drugs, and on four (4) occasions a combination of the two.” Appellant’s App.

      Vol. II p. 73. The court identified the following mitigators: (1) no one was

      injured as a result of this offense; (2) Freeman accepted responsibility by

      pleading guilty; however, the court found that this mitigator was “absolutely

      hampered by the fact that it was done basically a day and a half before trial”

      when they already had “forty (40) plus members of the community ordered to

      make arrangements to reschedule their lives”; (3) he cared for his children, ages

      ten and fourteen; however, he did not have a plan for them once he became

      incarcerated; (4) he cared for his mother, who was in poor health; (5) he had

      been employed for two years; and (6) he was described by some as “a good

      neighbor.” Tr. Vol. II p. 76. Concluding that the aggravators outweighed the

      mitigators, the trial court sentenced Freeman to an above-advisory term of two

      years for Count II, enhanced by five years for being an HVSO.


[7]   Freeman now appeals his sentence.



                                Discussion and Decision
[8]   Freeman contends that his seven-year sentence is inappropriate because “[h]is

      current character is not reflective of the lengthy record he has amassed.”

      Appellant’s Br. p. 17. Indiana Appellate Rule 7(B) provides that an appellate

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

      the trial court’s decision, the Court finds that the sentence is inappropriate in

      Court of Appeals of Indiana | Memorandum Decision 89A05-1710-CR-2526 | March 19, 2018   Page 4 of 7
      light of the nature of the offense and the character of the offender.”

      “[S]entencing is principally a discretionary function in which the trial court’s

      judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

      1219, 1222 (Ind. 2008). “Such deference should prevail 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). Whether we

      regard a sentence as inappropriate ultimately “turns on our sense of the

      culpability of the defendant, the severity of the crime, the damage done to

      others, and myriad other factors that come to light in a given case.” Cardwell,

      895 N.E.2d at 1224.


[9]   In order to assess the appropriateness of a sentence, we first look to the

      statutory range for each level of offense. Here, Freeman committed a Level 6

      felony and was found to be an HVSO. Thus, the trial court had the discretion

      to sentence Freeman to a term of up to ten-and-a-half years in prison. See Ind.

      Code § 35-50-2-7 (providing that a person who commits a Level 6 felony shall

      be imprisoned for a fixed term of between six months and two-and-a-half years,

      with an advisory sentence of one year); Ind. Code § 9-30-15.5-2 (providing that

      a person found to be an HVSO shall be sentenced to an additional term of at

      least one year but not more than eight years). The trial court sentenced

      Freeman to two years for the Level 6 felony, enhanced by five years for the




      Court of Appeals of Indiana | Memorandum Decision 89A05-1710-CR-2526 | March 19, 2018   Page 5 of 7
       HSO finding, for a total of seven years in prison—three-and-a-half years less

       than the maximum.


[10]   The nature of the offense is, for the most part, unremarkable. Freeman

       operated a vehicle with an alcohol concentration equivalent to 0.226 gram of

       alcohol per 100 milliliters of his blood, which is significantly higher than the

       0.15 required for the conviction. But as Freeman points out on appeal, there

       was “no damage to property or persons.” Appellant’s Br. p. 16. Freeman’s

       character, though, is sufficient, standing alone, to support his seven-year

       sentence. This is Freeman’s twenty-fourth conviction—and fifth drunk-driving

       conviction. For his convictions, the courts have employed a wide array of

       sentencing options, such as prison time (including a ten-year sentence), jail

       time, suspended prison and jail time, probation, fines, community service,

       license suspensions, home detention, and substance-abuse treatment. He has

       had his probation revoked three times and his home detention revoked once. In

       addition, he was out on bond when he committed this offense. Despite all the

       opportunities that the courts have given Freeman to reform his conduct, he has

       squandered them all.


[11]   Nevertheless, Freeman claims that there are redeeming aspects to his character

       that warrant revising “his sentence downward and/or includ[ing] a suspended

       portion to allow him a chance at rehabilitation.” Id. at 18. He highlights taking

       care of his sick mother and two children, being employed for two years, and

       being “a good neighbor.” However, as the trial court remarked at sentencing:



       Court of Appeals of Indiana | Memorandum Decision 89A05-1710-CR-2526 | March 19, 2018   Page 6 of 7
               Because if in fact he is a great neighbor, and if he is in fact a great
               and responsible dad, he wouldn’t be here. And so he is the one
               that chose to put all of that at risk and sacrifice his status as a
               good neighbor, his status as a caretaker for his mother who needs
               him desperately, his status as a caretaker for his two (2) children
               ten (10) and fourteen (14) years old, and all of those other things
               by what he chose to do.


       Tr. Vol. II p. 68. We agree with the trial court’s observation on this point.

       Accordingly, we conclude that Freeman’s casual and continued disregard of the

       law supports his less-than-maximum sentence of seven years.


[12]   Affirmed.


       May, J., and Altice, J., concur.




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