MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Feb 17 2020, 10:51 am

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
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mekeisha Diamond Roberts,                                February 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2369
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1905-F5-80



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020                 Page 1 of 9
[1]   Mekeisha Diamond Roberts appeals her aggregate sentence of twelve years

      with three years suspended to supervised probation and the trial court’s order of

      restitution. Roberts was convicted of causing death when operating a vehicle

      while intoxicated and causing serious bodily injury when operating a vehicle

      while intoxicated as level 5 felonies and driving while suspended and operating

      a motor vehicle without ever receiving a license with a prior as class A

      misdemeanors. We affirm.


                                          Facts and Procedural History

[2]   On May 12, 2019, Roberts, who was pregnant, her fiancé Michael Creamer,

      and Tatiana Jones went to a bar and consumed alcohol. After leaving the bar

      in the early morning, 1 Roberts took the car keys from Creamer because she “felt

      like [she] was less drunk than everybody else.” Transcript Volume II at 18.

      Roberts had never received a driver’s license and was intoxicated, drove the

      vehicle, and crashed the vehicle. 2 Law enforcement responded to the scene

      and, upon arrival, noticed the rear end of the vehicle was severely smashed, a

      light pole had been struck, and electrical equipment had fallen on the ground.

      Creamer was taken by ambulance to the hospital and was later pronounced




      1
          A police report indicates officers responded at approximately 2:45 a.m.
      2
        At sentencing, Roberts testified “[t]here was an altercation between [Creamer] and [Jones] in the car. I fell
      asleep and lost control of the car or the wheel and it hit a curb and it spun out” and “I don’t know which way
      it was drifting, but it was drifting off and I panicked and turned the wheel the wrong way and hit a curb.”
      Transcript Volume II at 19. According to a police report, Roberts told an officer at the scene that she thought
      a vehicle had rear-ended her and she lost control of the vehicle, but indicated that she never saw another
      vehicle. Jones also reported to police that Roberts and Creamer were arguing, Roberts was purposely
      swerving on the roadway, and she did not believe their vehicle was ever hit by another vehicle.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020                  Page 2 of 9
      deead. Jones suffered multiple fractures including in her neck, tailbone, and

      sacrum and underwent surgeries. According to Jones, the pain was “[a]lmost

      unbearable, like excruciating” and was “10” on “a scale of 1 to 10.” Id. at 43.

      She was hospitalized for two weeks, was in a nursing home facility for at least

      one month, and participated in physical therapy. The range of motion in her

      neck was determined to be reduced to thirty-five or forty percent.


[3]   The State charged Roberts, as amended, with: Count I, causing death when

      operating a vehicle while intoxicated as a level 5 felony; Count II, causing death

      when operating a vehicle with an ACE of .08 or more as a level 5 felony; Count

      III, causing serious bodily injury when operating a vehicle while intoxicated as

      a level 5 felony; Count IV, causing serious bodily injury when operating a

      motor vehicle with an ACE of .08 or more as a level 6 felony; Count V, driving

      while suspended as a class A misdemeanor; Count VI, operating a motor

      vehicle without ever receiving a license as a class C misdemeanor; Count VII,

      operating a motor vehicle without ever receiving a license with a prior as a class

      A misdemeanor; and Count VIII, involuntary manslaughter as a level 5 felony.


[4]   Roberts pled guilty to all counts. At sentencing, Jones denied arguing with

      Creamer in the car. Roberts apologized to Jones and Creamer’s family for her

      actions and the pain she caused them. The State submitted requests for

      restitution in the amounts of $283,712.24 for Jones and $4,767.25 for Creamer.

      The court found the aggravating circumstances included Roberts’s criminal

      history; the repetitive nature of her driving without a license offenses; the harm,

      injury, or loss suffered by Jones was more than what was necessary to prove the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020   Page 3 of 9
      elements of the offenses; the victims placed their trust in Roberts to drive them;

      the overall nature and circumstances of the offenses as Roberts was pregnant

      and intoxicated at the time of the commission of the offenses; Roberts’s prior

      petitions to revoke probation filed against her with one having been found true

      and one currently pending; and Roberts was on probation at the time of the

      offense. The court found the mitigating circumstances included Roberts’s guilty

      plea on all charges without the benefit of a plea agreement which was

      diminished because she was not completely honest about what happened

      leading up to the offenses; a long term of incarceration would cause an undue

      hardship on her dependents and unborn child which was diminished by the fact

      her poor decisions left her children with only one parent; she participated in

      rehabilitative programs while incarcerated; she expressed sincere remorse; and

      she suffers from post-traumatic stress disorder which is diminished by the fact

      she was suffering from the illness prior to the commission of the offenses and

      failed to seek proper treatment.


[5]   The court found the aggravating factors outweighed the mitigating factors,

      sentenced Roberts to six years each on Counts I and III and to 365 days each

      on Counts V and VII, vacated the other counts, and ordered that the sentences

      under Counts I and III be served consecutive to each other and the sentences

      under Counts V and VII be served concurrently with Count I, for an aggregate

      sentence of twelve years. The court ordered that three years of the sentence be

      suspended to supervised probation. The State submitted information that the

      Indiana Criminal Justice Institute had approved disbursement of $5,000 from


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020   Page 4 of 9
      the Violent Crime Compensation Fund for funeral and burial expenses. The

      court ordered Roberts to pay $283,712.34 in restitution attributable to Jones and

      $5,000 in restitution attributable to Creamer.


                                                  Discussion

                                                        I.

[6]   Roberts first claims that her aggregate sentence is inappropriate and requests

      that her sentence be reduced to five years each on Counts I and III to be served

      consecutively for a total sentence of ten years with three years suspended to

      supervised probation. She asserts her criminal history of one prior felony and

      three prior misdemeanors do not support the maximum consecutive sentences

      in this case. In maintaining Roberts’s sentence is not inappropriate, the State

      argues she was on probation at the time of the offenses and chose to drive

      despite being intoxicated and never being issued a license. It argues that, as a

      result of her actions, Creamer died and Jones was seriously injured. It asserts

      Roberts has a criminal history including two misdemeanors for operating a

      vehicle without ever receiving a license and a misdemeanor for public

      intoxication and that, given her repetitive criminal conduct, failures to appear,

      and violations of probation, she poses a high risk to reoffend. It also points to

      her known alcohol abuse and failure to seek treatment.


[7]   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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020   Page 5 of 9
      of the offender.” Under this rule, the burden is on the defendant to persuade

      the appellate court that his or her sentence is inappropriate. Childress v. State,

      848 N.E.2d 1073, 1080 (Ind. 2006).


[8]   Our review of the nature of the offense reveals that, after drinking and

      becoming intoxicated at a bar, Roberts took the car keys from Creamer and

      drove with him and Jones as passengers. Ultimately, Roberts crashed the

      vehicle, resulting in the death of Creamer and multiple severe injuries to Jones

      resulting in pain, permanent reduction in her range of motion, and significant

      medical costs.


[9]   Our review of Roberts’s character reveals that she pled guilty to all counts. The

      presentence investigation report (“PSI”), completed on September 4, 2019,

      indicates that Roberts was born in July 1991 and that she reported she was

      thirty-six weeks pregnant. The PSI indicates Roberts was arrested for retail

      theft in 2009 but the “case was Stricken Off with Leave to Reinstate” and was

      convicted of two counts of operating a motor vehicle without ever receiving a

      license as class C misdemeanors, one in 2015 and the other in 2016, corrupt

      business influence as a level 5 felony in 2017, for which she received a sentence

      of four years with 2.5 years executed at a level to be determined by community

      corrections and 1.5 years suspended to supervised probation and was ordered to

      pay restitution of $3,195.73, and public intoxication as a class B misdemeanor

      in 2017. Appellant’s Appendix Volume II at 64. The PSI indicates Roberts

      failed to appear on several occasions, has had two petitions to revoke and a

      petition to execute community corrections sentence filed against her, and was

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020   Page 6 of 9
       on probation at the time she committed the offenses in this case. It states

       Roberts reported that she was diagnosed with post-traumatic stress disorder in

       2017 and anxiety and depression in 2019.


[10]   With respect to substance abuse, the PSI states that Roberts reported first

       consuming alcohol at age seventeen and consumed “One (1) fifth per day”

       between the ages of seventeen and twenty-one and “[Half] to one (1) gallon per

       day” 3 between the ages of twenty-one and twenty-seven. Id. at 69. She also

       reported first using drugs at age seventeen and last using in 2016 and consumed

       marijuana four to five times per day between the ages of seventeen and twenty-

       one and six to seven times per day between the ages of twenty-one and twenty-

       five. The PSI states Roberts admitted going to work under the influence of

       alcohol. It further provides that Roberts’s overall risk assessment score using

       the Indiana Risk Assessment System places her in the high risk to reoffend

       category. The probation officer who prepared the PSI recommended a total

       sentence of twelve years with two years suspended to supervised probation.


[11]   After due consideration, we conclude that Roberts has not sustained her burden

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

       of the offenses and her character. 4




       3
           Brackets found in quoted text.
       4
         To the extent Roberts argues the court abused its discretion in finding certain aggravating circumstances or
       in sentencing her, we need not address this issue because we find that her sentence is not inappropriate. See
       Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider
       the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020                   Page 7 of 9
                                                               II.


[12]   Roberts next claims the trial court erred in ordering restitution for medical

       expenses and requests remand for consideration of her ability to pay restitution.

       The State argues that Roberts agreed to the imposition of restitution and the

       amount and that restitution was ordered as a part of her sentence and not as a

       condition of probation.


[13]   We review a trial court’s order of restitution for an abuse of discretion. Bell v.

       State, 59 N.E.3d 959, 962 (Ind. 2016). When a trial court enters an order of

       restitution as part of a condition of probation, the court is required to inquire

       into the defendant’s ability to pay; this is so in order to prevent indigent

       defendants from being imprisoned because of a probation violation based on a

       defendant’s failure to pay restitution. Id. at 963 (citing Pearson v. State, 883

       N.E.2d 770, 772 (Ind. 2008), reh’g denied). However, when restitution is

       ordered as part of an executed sentence, no inquiry into the ability to pay is

       required because restitution is merely a money judgment, and a defendant

       cannot be imprisoned for non-payment. Id. (citing Pearson, 883 N.E.2d at 773).


[14]   Roberts does not dispute the amounts of restitution ordered by the court. See

       Transcript Volume II at 64 (Roberts’s counsel stated in part “I don’t believe




       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; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)
       (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the
       defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020                       Page 8 of 9
       [Roberts is] contesting any of the amount that is addressed in the restitution

       memo for all the medical bills”). Rather, she asserts the court should have

       considered whether she had the ability to pay. The record establishes that the

       trial court entered the order of restitution as a part of its sentencing order.

       While the restitution amounts are included in the probation order, a notation

       states the restitution is a civil judgment. The court verbally stated at sentencing

       “I’m going to enter a judgment on those matters for restitution.” Id. at 90.

       Moreover, the court’s written sentencing order provides “IT IS FURTHER

       ORDERED AND ADJUDGED that [Roberts] pay restitution in this matter as

       follows and judgment is so entered . . . .” Appellant’s Appendix Volume II at

       17. The court did not abuse its discretion in ordering Roberts to pay restitution

       as a part of her sentence.


[15]   For the foregoing reasons, we affirm Roberts’s aggregate sentence and the trial

       court’s order of restitution as a part of her sentence.


[16]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2369 | February 17, 2020   Page 9 of 9
