MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 05 2019, 9:52 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Michael Vo Sherman
                                                         Certified Legal Intern
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Frederick Tickle,                                        September 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-622
        v.                                               Appeal from the
                                                         Decatur Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Matthew D. Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1706-F6-623



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019                 Page 1 of 6
                                          Case Summary
[1]   Frederick Tickle pled guilty to Level 6 felony operating a vehicle while

      intoxicated (OWI) with a prior OWI conviction, Level 6 felony operating a

      vehicle as a habitual traffic violator, and being a habitual vehicular substance

      offender (HVSO). Tickle now appeals, arguing that his five-year sentence is

      inappropriate. We affirm.



                            Facts and Procedural History
[2]   Around 11 a.m. on June 23, 2017, Greensburg Police Department Officer

      Casey Jones was on patrol at the intersection of East Main Street and South

      Michigan Avenue when he saw a gray Chevrolet drive east through the

      intersection. Officer Jones saw the car drift left of center and that another car

      traveling west had to swerve to avoid a head-on collision. The driver, later

      identified as Tickle, then drove over a curb, into the grass, and onto a sidewalk.

      By then, Officer Jones had activated his emergency lights and followed Tickle.

      Tickle continued down the street and drove into a residential driveway. He

      then crossed the driveway and crashed into some bushes and trees near the

      driveway. Eventually, Officer Jones apprehended Tickle and discovered that

      Tickle’s driving status was “conditional.” Appellant’s App. Vol. II p. 15. That

      is, Tickle’s driver’s license was suspended for being a habitual traffic violator,

      but he could drive to and from work. Officer Jones saw that Tickle was

      disoriented and suspected that he was suffering from a medical issue. EMS



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019   Page 2 of 6
      arrived and took Tickle to the hospital for further evaluation. At the hospital,

      Tickle tested positive for amphetamine, cocaine, and marijuana.


[3]   The State charged Tickle with Level 6 felony OWI with a prior OWI conviction

      in July 2014 and Level 6 felony operating a vehicle as a habitual traffic violator.

      The State also alleged that Tickle is an HVSO based on February 2008 and

      September 2013 OWI convictions. In July 2018, Tickle pled open, i.e., without

      the benefit of a plea agreement, to all three charges. See Tr. p. 8. At the guilty-

      plea hearing, the trial court became concerned about Tickle’s competency after

      he made some “incoherent” statements. Id. at 22. Thereafter, the trial court

      ordered a competency evaluation. During the evaluation, Tickle’s medical

      records were reviewed and revealed that when he was eighteen years old, he

      was involved in a serious car accident. He was in a coma for two months and

      required surgery to repair brain damage that had occurred. After Tickle

      recovered, he continued to experience symptoms caused by his brain injury and

      was diagnosed as having mild neurocognitive disorder, alcohol-use disorder,

      cannabis-use disorder, and stimulant-use disorder. See Appellant’s App. Vol. II

      p. 53. In November 2018, the trial court found that although he previously

      suffered a traumatic brain injury, the now fifty-year-old Tickle was competent.

      See id. at 33.


[4]   In February 2019, the trial court accepted Tickle’s guilty plea and held a

      sentencing hearing. At the hearing, the trial court identified one aggravator:

      Tickle’s long history of drunk driving. The pre-sentence investigation report

      revealed that Tickle had five prior OWIs and that in each case he was ordered

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019   Page 3 of 6
      to complete a treatment program as part of his sentence. Regarding mitigators,

      the trial court considered Tickle’s guilty plea and his past rehabilitation efforts,

      including efforts he made through Center Stone and Celebrate Recovery, and

      that in May 2018 he completed Vocational Rehab. The trial court sentenced

      him to five years for OWI with a prior OWI conviction (one year plus four

      years for being an HVSO) and a concurrent term of one year for operating a

      vehicle as a habitual traffic violator, with four-and-a-half years executed and

      180 days suspended to probation.


[5]   Tickle now appeals his sentence.



                                 Discussion and Decision
[6]   Tickle contends that his five-year sentence is inappropriate and asks us to revise

      it to all “home detention.” Appellant’s Br. p. 9. Under Indiana Appellate Rule

      7(B), this 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 light of the nature of the offense and the character of the

      offender.” “Whether a sentence is inappropriate ultimately turns on the

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

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

      Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the

      judgment of trial courts in sentencing matters, defendants have the burden of



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019   Page 4 of 6
      persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

      1041, 1044-45 (Ind. Ct. App. 2016).


[7]   The parties dispute what sentence Tickle faced, but it was at least ten-and-a-half

      years and as much as twelve years. In any event, Tickle concedes that his

      sentence “falls well short of the maximum sentence in this case.” Appellant’s

      Br. p. 11. With regard to the nature of the offenses, Tickle, who had a

      conditional license, consumed amphetamine, cocaine, and marijuana and then

      drove into oncoming traffic, over sidewalks, and through residential yards

      before crashing into bushes and trees.


[8]   As for Tickle’s character, Tickle concedes that his criminal history is “terrible.”

      Tr. p. 22. Indeed, his PSI shows that this is his sixth OWI offense. But he

      claims that his criminal history “is directly related to his mental health issues.”

      Appellant’s Br. p. 12. However, previous courts have given him numerous

      opportunities to address his mental-health issues by ordering alternative

      sentences that included treatment and rehabilitation. For example, in his five

      previous OWI cases, Tickle was ordered to complete four separate court-

      ordered treatment programs. We understand that the brain injury Tickle

      suffered when he was eighteen years old has caused hardship in his life, but the

      trial court considered the efforts he made through Center Stone and Celebrate

      Recovery and that he recently completed Vocational Rehab as a mitigating

      factor when it determined his sentence. As such, we cannot say that Tickle’s

      sentence is inappropriate.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019   Page 5 of 6
[9]   Affirmed.


      Riley, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019   Page 6 of 6
