MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                   Sep 16 2019, 6:51 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
K. Aaron Heifner                                         Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Melissa Anne Brown,                                      September 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2950
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas L. Clem,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C05-1706-F6-1558



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019         Page 1 of 10
[1]   Melissa Anne Brown appeals her sentence for reckless driving as a class C

      misdemeanor and operating a vehicle while intoxicated as a level 6 felony. We

      affirm.

                                      Facts and Procedural History

[2]   On May 7, 2017, Brown left a bar in Chesterfield, Indiana. A police officer

      observed a pickup truck driven by Brown make several turns, squeal the tires,

      make unsafe starts, and accelerate. The officer tried to catch up with the truck

      and activated his vehicle’s emergency lights and siren. Brown’s Speeds

      increased to over 100 and up to 106 miles per hour, and she then came to a

      stop. The officer approached the vehicle, and Brown reported that she had left

      the bar and had consumed alcoholic beverages. She submitted to a certified

      breath test which showed a result of .159 g/210L.


[3]   On June 21, 2017, the State charged Brown with: Count I, operating a vehicle

      while intoxicated endangering a person as a class A misdemeanor; Count II,

      operating a vehicle with an alcohol concentration equivalent of .15 or more as a

      class A misdemeanor; Count III, reckless driving as a class C misdemeanor;

      and Count IV, operating a vehicle while intoxicated having a prior conviction

      as a level 6 felony. On November 17, 2017, the State alleged that Brown was

      an habitual vehicular substance offender. On July 30, 2018, the court held a

      guilty plea hearing at which Brown pled guilty as charged.


[4]   On November 5, 2018, the court held a sentencing hearing. The court noted

      the presentence investigation report (“PSI”), and Brown’s counsel made one


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 2 of 10
      correction. In the category titled evaluation/summary, the PSI states that in

      mitigation Brown pled guilty without the benefit of a plea agreement and that

      an aggravating factor is her criminal history. It included a recommendation

      that she receive a sentence of sixty days executed on in-home detention under

      Count III and thirty months with ten months executed on in-home detention

      and twenty months suspended to probation under Count IV enhanced by an

      additional thirty months for being an habitual vehicular substance offender to

      be executed on in-home detention.


[5]   The prosecutor argued Brown had six DUIs, she had been on in-home

      detention before and that clearly did not work, she was driving 106 miles per

      hour, and she should be sentenced to prison. He argued that the only mitigator

      was that she pled guilty and that it was not much of a mitigator because the

      State was prepared to go to trial and there was no way she would prevail.

      Brown indicated that she had been employed at Nestlé for nine years, that she

      had five convictions for operating while intoxicated counting this case, and that

      she had a drinking problem and was in treatment. She submitted a letter from

      her doctor stating that she had been treated for agoraphobia with panic disorder

      and depressive disorder, that her symptoms interfere with her ability to work

      and she has been on sick leave from work at least twice, and that she has made

      progress with some medication changes and has returned to work. Brown

      further indicated that she had a domestic partner who lived with her and had

      taken on sobriety to support her. She indicated that her job not only functioned

      to support her household but functioned to support her daughter who was a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 3 of 10
      student at IU and that she carried health insurance for her daughter and herself.

      When asked if she was willing to have a device placed on her vehicle so that she

      would have to blow into it every time to show that she was sober before the

      vehicle would start, she answered affirmatively. She indicated that she had

      been to prison for ninety days, and when asked if she had been on in-home

      detention before and had been successful, she replied that she had been

      successful at every program.


[6]   The trial court stated in part:


              You know . . . I think one of the hallmarks of . . . any Judge who
              . . . is worth being called a Judge, is consistency. In every case
              like yours Ms. Brown, I have on many, many occasions given
              this little speech; and it goes like this: Person goes out and has a
              record like this, which in and of itself is an aggravating
              circumstance, I show six (6) prior DUI’s. One was dismissed for
              some reason. That still means, still you had charges of six (6),
              whether you had a deferral or whether you worked yourself out
              of it; you don’t seem to be clear about how that happened, but
              certainly you’ve had six (6) DUI’s in your past. That is a horrible
              aggravating circumstance. And so the question and the inquiries
              like this, I do something like probation or something like that in a
              case like this and then you go out and do this again and get
              number seven (7), only this time there’s an accident. Somebody’s
              husband gets killed. Somebody’s wife gets killed. Somebody’s
              son gets killed. Somebody’s daughter gets killed. And they come
              up here and they sit, right here in this chair, right here, beside
              me, as they have a right to do, and they look at me and they say,
              “Judge, the seventh time. If you’d just done something my
              husband would be alive; my wife would be alive, my daughter,
              my son would be alive.” I’ve been a Judge for twenty-eight (28)
              years and over a hundred thousand (100,000) cases in this court,
              it’s a really high-volume court, and to this day I don’t know how

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 4 of 10
              to answer that question; so I don’t. And I’ve never tried to. I
              can’t take the risk that I’ll get asked that question in a situation
              like yours, and so I’m not going to do that. I’ve never done it
              and I never will.

      Transcript Volume 2 at 27-28.


[7]   The court merged Counts I and II into Count IV, and sentenced Brown to

      concurrent terms of two months under Count III and thirty months under

      Count IV, and enhanced the sentence under Count IV by thirty months for

      being an habitual vehicular substance offender for an aggregate sentence of

      sixty months. The court stated: “I will recommend that you receive, let’s see

      it’s called Recovery While Intoxicated and Purposeful Incarceration. Should

      you complete that I will make a commitment to modify your sentence.” Id. at

      29. The abstract of judgment states: “Upon successful completion of the

      clinically appropriate substance abuse treatment program as determined by

      IDOC, the court will consider a modification to this sentence.” Appellant’s

      Appendix Volume II at 78.


                                                  Discussion

[8]   Brown requests that this Court “modify and revise [her] sentence with a

      reduced sentence with rehabilitation opportunities” and for all other just and

      proper relief. Appellant’s Brief at 15. She argues that the trial court abused its

      discretion in sentencing her, that it is clear that the aggravating circumstance is

      her history of driving while intoxicated, and “[a]t no point during sentencing

      did the Court offer any dicta into the record reflecting any consideration of any


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 5 of 10
      mitigating circumstances or if there even were any mitigating circumstances

      such as her low risk assessment in [her] PSI.” Id. at 9-10.


[9]   Brown cites Ind. Appellate Rule 7(B) and argues that the court failed to provide

      any reason for her sixty-month sentence “except ‘consistency’ and to avoid the

      speculated circumstance that [she] would kill someone in a car accident,”

      “[t]his kind of poor reasoning, even with [her] past driving history, is the

      slippery-slope of convicting someone again after having served their prior

      sentence,” “it infers that anyone previously convicted of any traffic offense

      should never be allowed to drive again and should stay behind bars,” and “[t]he

      trial court’s concept of ‘consistency’ is troublesome as it also clearly reflects that

      the trial court did not, nor would it, consider any mitigating circumstances.”

      Id. at 10-11. She argues that the trial court stated it would “‘never’ try to even

      consider if a lighter sentence would ever be appropriate” and that it gave no

      consideration to the facts that the PSI reflected a low risk of a repeat offense,

      she “was the financial backbone for her daughter,” her partner committed

      herself to sobriety to support and provide her with a positive influence, and she

      was willing to have a device installed in her vehicle so that she would need to

      pass a breathalyzer each time she started her vehicle. Id. at 12. She argues that

      her sentence is an outlier and far greater than the recommendations in the PSI.

      She contends that the facts should persuade this Court that her sentence has

      met the inappropriateness standard of review and that her sentence should be

      revised under Ind. Appellate Rule 7(B).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 6 of 10
[10]   The State responds that the trial court did not abuse its discretion in sentencing

       Brown and that her sentence is not inappropriate. It argues the trial court

       committed to modify Brown’s sentence if she completed a rehabilitative

       program and her thirty-month habitual vehicular substance offender

       enhancement was substantially below the maximum permitted. It argues that

       Brown’s criminal history demonstrates a consistent, unresolved abuse of

       alcohol and repeated choices to drive while drunk. It argues that, “[b]ased on

       Brown’s criminal history, the only sentence that has had a demonstrable

       deterrent effect was [her] six-month executed sentence served in 2003” and she

       “has been offered numerous alternative sentences, including suspended

       sentences, probation, substance abuse treatment, and victim impact panels, but

       [she] nevertheless continued to engage in criminal behavior shortly after each of

       those.” Appellee’s Brief at 14. It argues that, even if the court erred in failing

       to consider Brown’s willingness to cooperate with alternative sentencing, her

       daughter’s financial reliance on her, or her partner’s willingness to engage in

       sobriety, there is little reason that consideration of those factors would have

       altered her sentence. It also contends that, because her sentence is not

       inappropriate, any error by the trial court was harmless, and that the nature of

       her offenses and character do not warrant a downward revision of her sentence.


[11]   Ind. Appellate Rule 7(B) 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 burden is on the defendant to persuade the appellate


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 7 of 10
       court that his or her sentence is inappropriate. See Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006).


[12]   Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall

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

       years with the advisory sentence being one year. Ind. Code § 35-50-3-4

       provides that a person who commits a class C misdemeanor shall be imprisoned

       for a fixed term of not more than sixty days. Ind. Code § 9-30-15.5-2(d)

       provides: “The court shall sentence a person found to be a habitual vehicular

       substance offender to an additional fixed term of at least one (1) year but not

       more than eight (8) years of imprisonment, to be added to the term of

       imprisonment imposed under IC 35-50-2 or IC 35-50-3.” Brown was sentenced

       to thirty months under Count IV enhanced by thirty months for being an

       habitual vehicular substance offender, and the court stated that it would modify

       her sentence if she completed the ordered treatment program.


[13]   Our review of the nature of the offense reveals that Brown operated a vehicle

       while intoxicated having been convicted of operating while intoxicated within

       the prior five years. After consuming alcoholic beverages, she entered a pickup

       truck, made several turns squealing the tires, and accelerated to over 100 and up

       to 106 miles per hour until she was pulled over by law enforcement. Her

       certified breath test result was 0.159 g/210L.


[14]   Our review of the character of the offender reveals that Brown pled guilty

       without the benefit of a plea agreement. The PSI indicates that Brown’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 8 of 10
criminal history includes: driving while intoxicated as a class A misdemeanor

for which she was sentenced in September 1993 to 365 days probation and

substance abuse evaluation and treatment and completed probation in

September 1994; operating while intoxicated for which she was sentenced in

November 1999 to 365 days with all but five days suspended on condition of

completion of Alcohol Counter Measures Program; charges for operating a

vehicle while intoxicated and driving while suspended as class A misdemeanors

filed in April 2000 and dismissed in March 2001; operating a vehicle while

intoxicated which was filed in 2003 and for which she was sentenced in March

2004 to eighteen months, all suspended except for six months, and twelve

months of probation; operating a vehicle while intoxicated endangering a

person as a class A misdemeanor, speeding, and disregarding an auto signal for

which she was sentenced in May 2013 to 364 days with 182 days on in-home

detention and 182 days probation and ordered to obtain a substance abuse

evaluation, attend victim impact panel, and attend and complete Prime for Life;

and battery resulting in bodily injury as a class A misdemeanor for which she

was sentenced in September 2015 to 180 days suspended to probation. The PSI

states that Brown was granted the privilege of probation in all convictions and

completed successfully, that she has been placed on in-home detention and

sentenced to the Indiana Department of Correction on one occasion, and that

she reports no official misconducts during any period of incarceration she has

served. It further indicates that she owns her home and has a mortgage, owns a

vehicle, and had worked for her employer for nine years. With respect to

substance abuse, the PSI states that Brown reports that alcohol is her substance

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019   Page 9 of 10
       of choice, that she would drink heavily at times and then go through periods of

       sobriety, and that she has been in treatment at the Anderson Center, Aspire,

       and Richmond State Hospital. The PSI also indicates that her risk assessment

       for the area of substance abuse is moderate and that her overall risk assessment

       score places her in the low risk to reoffend category.


[15]   After due consideration, we conclude that Brown has not sustained her burden

       of establishing that her sentence is inappropriate in light of the nature of the

       offenses and her character. 1


[16]   For the foregoing reasons, we affirm Brown’s sentence.


[17]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       1
         To the extent that Brown argues that the trial court abused its discretion in failing to consider her
       willingness to cooperate with alternative sentencing, her daughter’s financial reliance on her, her partner’s
       willingness to remain sober, or her willingness to have a device installed in her vehicle so that she would need
       to pass a breathalyzer to start her vehicle as mitigating circumstances, we need not address this issue because
       we find that her sentence is not inappropriate under Ind. Appellate Rule 7(B). See Windhorst v. State, 868
       N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate
       courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind.
       Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013) (holding that
       “even if the trial court did abuse its discretion by failing to consider the alleged mitigating factor of residual
       doubt, this does not require remand for resentencing”), trans. denied. Even if we were to consider Brown’s
       abuse of discretion argument, we would find that reversal is not warranted in light of the record.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2950 | September 16, 2019                  Page 10 of 10
