MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 04 2017, 6:35 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
Phyllis J. Emerick                                      Curtis T. Hill, Jr.
Bloomington, Indiana                                    Attorney General of Indiana

                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason Daniel Moore,                                     December 4, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        53A01-1701-CR-102
        v.                                              Appeal from the Monroe Circuit
                                                        Court
State of Indiana,                                       The Honorable Mary Ellen
Appellee-Plaintiff                                      Diekhoff, Judge
                                                        Trial Court Cause No.
                                                        53C05-0401-FC-88, 53C05-1111-
                                                        FC-1120



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017            Page 1 of 8
[1]   Jason Moore appeals the revocation of his probation under cause number

      53C05-0401-FC-88 (FC-88) and the sentence imposed following his plea of

      guilty to class C felony operating a vehicle while intoxicated (OVWI) under

      cause number 53C05-1111-FC-1120 (FC-1120). Moore raises the following

      issues on appeal:


              1. Did the trial court abuse its discretion in ordering him to serve
              the entirety of his previously suspended sentence under FC-88?


              2. Is the four-year executed sentence imposed under FC-1120
              inappropriate in light of the nature of the offense and Moore’s
              character?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On December 23, 2003, Moore was driving while intoxicated when he crashed

      his car into another vehicle at a high rate of speed. One of the occupants of the

      other vehicle was killed and the other sustained serious bodily injury, as did

      Moore’s passenger. Moore ultimately pled guilty under FC-88 to class C felony

      OVWI resulting in death and two counts of class D felony OVWI resulting in

      serious bodily injury. Moore received an aggregate sentence of five years, with

      three-and-one-half years suspended to probation. Moore’s probation was

      revoked in August 2009, and he was ordered to serve home detention for thirty-

      five days before resuming probation. On November 4, 2010, Moore admitted

      to violating the terms of his probation by committing a new offense—


      Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017   Page 2 of 8
      specifically, Moore had pled guilty to class D felony theft. As a result, the trial

      court ordered Moore’s probationary term to be extended for one year.


[4]   On November 19, 2011, while still on probation under FC-88, Moore again

      drove while intoxicated and was pulled over for driving erratically. After failing

      field sobriety tests and blowing a .175 on a portable breath test, Moore shoved

      the officer and got back into his vehicle. Moore then led the officer on a high-

      speed chase, which ended with Moore crashing his truck into an embankment.

      As a result of these events, Moore was charged under FC-1120 with class C

      felony OVWI and class D felony resisting law enforcement. On April 19, 2012,

      Moore pled guilty to class C felony OVWI and the State dismissed the resisting

      law enforcement charge. Moore also admitted to violating the terms of his

      probation in FC-88. The trial court agreed to defer conviction and sentencing

      for two years in order to allow Moore to enter Drug Treatment Court,

      successful completion of which would result in the dismissal of the charge

      under FC-1120.


[5]   Thereafter, Moore violated the conditions of Drug Treatment Court numerous

      times. He failed to report as required many times, he provided a diluted urine

      screen in July 2016, and he was kicked out of a treatment center for violating

      the center’s rules. Despite multiple violations, Moore was not terminated from

      the program. Instead, his participation in the program was extended on two

      separate occasions.




      Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017   Page 3 of 8
[6]   On September 17, 2016, Moore drove to another county and went out drinking

      at several bars. He drove home the next morning, and although he was not sure

      what his blood alcohol content was, he had to stop to vomit on the way home.

      Moore failed to report to probation as required that day, so probation

      employees and police went to Moore’s residence to find him. When Moore

      refused to open the door, police forced entry and arrested him. As a result, the

      State filed a petition to revoke Moore’s participation in Drug Treatment Court,

      in which it alleged thirty-one violations, beginning almost immediately upon

      Moore’s entry into the program in 2012 and continuing up until the time of his

      arrest in September 2016.


[7]   A hearing was held on December 16, 2016, at which Moore admitted to the

      violations alleged in the petition. The trial court revoked Moore’s probation in

      FC-88 and ordered him to serve the remainder of his previously suspended

      sentence. In FC-1120, the trial court imposed a six-year executed sentence and

      ordered the sentences in FC-88 and FC-1120 to be served consecutively. Moore

      now appeals.


                                          Discussion & Decision


                                  1. Probation Revocation Sanction


[8]   Moore first argues that the trial court abused its discretion in ordering him to

      serve the remainder of his previously suspended sentence under FC-88. We

      review a trial court’s sentencing decision in a probation revocation proceeding

      for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148 (Ind. Ct. App.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017   Page 4 of 8
       2005). An abuse of discretion occurs if the decision is against the logic and

       effect of the facts and circumstances before the court. Prewitt v. State, 878

       N.E.2d 184, 188 (Ind. 2007). Moreover, “[o]nce a trial court has exercised its

       grace by ordering probation rather than incarceration, the judge should have

       considerable leeway in deciding how to proceed.” Id. “If the court finds the

       defendant has violated a condition of his probation at any time before the

       termination of the probationary period, and the petition to revoke is filed within

       the probationary period, then the court may order execution of the sentence

       that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.

       2007); see also Ind. Code § 35-38-2-3(h).


[9]    Moore argues that imposition of the entirety of his previously suspended

       sentence was an abuse of discretion because, according to him, he made

       significant progress in Drug Treatment Court. Given Moore’s near-constant

       violation of the conditions of Drug Treatment Court, we find this argument

       unconvincing. The trial court’s decision to order Moore to serve the remainder

       of his previously suspended sentences was far from an abuse of discretion.


                                        2. Inappropriate Sentence


[10]   Moore also argues that the six-year sentence imposed under FC-1120 was

       inappropriate. Article 7, section 4 of the Indiana Constitution grants our

       Supreme Court the power to review and revise criminal sentences. See Knapp v.

       State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S.Ct. 978 (2015).

       Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this court to


       Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017   Page 5 of 8
       perform the same task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       Per App. R. 7(B), we may revise a sentence “if after due consideration of the

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

       of the nature of the offense and the character of the offender.” Inman v. State, 4

       N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentencing review under

       Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012). “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).


[11]   The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).




       Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017   Page 6 of 8
[12]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offense. Moore

       was convicted under FC-1120 of class C felony OVWI, the sentencing range for

       which is two to eight years, with an advisory sentence of four years. Ind. Code

       § 35-50-2-6. Thus, Moore received a sentence above the advisory, but still well

       below the maximum.


[13]   Considering the nature of the offense, we observe that while he was on

       probation for an OVWI that killed one person and seriously injured two others,

       Moore again chose to drive while intoxicated. After being pulled over and

       failing field sobriety tests and a portable breath test, Moore fled from police and

       led them on a high-speed chase, which ended when Moore crashed his truck.

       The nature of the offense standing alone is more than sufficient to support the

       sentence imposed.


[14]   Nor does Moore’s character support appellate sentence revision. Moore has a

       significant criminal history; in addition to the OVWI offenses previously

       discussed, Moore has been convicted of multiple counts of criminal mischief,

       battery, receiving stolen property, illegal consumption of alcohol, and theft.

       Additionally, Moore has violated probation numerous times, and he constantly

       violated the conditions of Drug Treatment Court during the four years he was

       given to complete the two-year program. Although Moore claims to be a good

       father, his desire to remain involved in his daughter’s life has not been enough

       motivation for him to live a law-abiding life and comply with the terms of

       probation and Drug Treatment Court. Moore has demonstrated that he is a

       Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017   Page 7 of 8
       danger to himself and the public. Accordingly, we cannot conclude that his six-

       year sentence for class C felony OVWI is inappropriate.


[15]   Judgment affirmed.


[16]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1701-CR-102 | December 4, 2017   Page 8 of 8
