MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         May 10 2017, 10:27 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
Brian A. Karle                                          Curtis T. Hill, Jr.
Ball Eggleston, PC                                      Attorney General of Indiana
Lafayette, Indiana                                      Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Demetrius Tate,                                         May 10, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1612-CR-2909
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D02-1606-F5-86



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017        Page 1 of 11
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Demetrius Tate (Tate), appeals his sentence following an

      open guilty plea to operating a motor vehicle while privileges are forfeited for

      life, a Level 5 felony, Ind. Code § 9-30-10-17.


[2]   We affirm.


                                                  ISSUES
[3]   Tate presents us with two issues on appeal, which we restate as:


          (1) Whether the trial court abused its sentencing discretion by improperly

              considering the probation department’s risk assessment score as an

              aggravating circumstance; and

          (2) Whether Tate’s sentence is inappropriate in light of the nature of the

              offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On June 15, 2016, the State filed an Information, charging Tate with operating

      a motor vehicle while privileges are forfeited for life, a Level 5 felony. On

      September 30, 2016, Tate pled guilty without the benefit of a plea agreement.

      Thereafter, on November 17, 2016, the trial court conducted a sentencing

      hearing. During the hearing, the trial court reviewed the presentence report and

      heard testimony. The trial court took note of Tate’s extensive criminal history

      and expressed its concern with “the repetitive nature of [his] criminal conduct[,]

      [he] seem[s] to just keep getting into trouble after [sic] one thing after another.”

      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 2 of 11
      (Transcript p. 35). The trial court found as aggravators Tate’s criminal history,

      his probation violations, his history of failing to appear, and the instant offense

      was committed while out on bond for another offense. While describing the

      aggravators, the trial court also stated—without expressly referring to it as an

      aggravator—“[m]ost importantly, the probation department finds that you are

      very high risk to re-offend based upon . . . your criminal history and based upon

      your ability not to follow probation rules and community corrections and the

      like.” (Tr. p. 36). The trial court considered Tate’s guilty plea to be a

      mitigating circumstance. As the aggravators outweighed the mitigator, the trial

      court imposed a four-year sentence, with three years executed and one year of

      supervised probation.


[5]   Tate now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                        I. Aggravating Circumstance


[6]   Tate contends that the trial court improperly sentenced him. Sentencing

      decisions rest within the sound decision of the trial court and we review only for

      an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if

      the decision is clearly against the logic and effect of the facts and circumstances

      before the court or the reasonable, probably, and actual deductions drawn

      therefrom. Id. We review for an abuse of discretion the court’s finding of

      aggravators and mitigators to justify a sentence, but we cannot review the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 3 of 11
      relative weight assigned to those factors. Id. at 490-91. When reviewing the

      aggravating and mitigating circumstances identified by the trial court in its

      sentencing statement, we will remand only if “the record does not support the

      reasons, or the sentencing statement omits reasons that are clearly supported by

      the record, and advanced for consideration, or the reasons given are improper

      as a matter of law.” Id.


[7]   Tate contends that the trial court erred when it improperly considered the

      probation department’s risk assessment score as an aggravating circumstance.

      During the sentencing hearing, the trial court found as follows:

              So, your criminal history – your significant criminal history is an
              aggravator. You violated probation at least three (3) times and
              you have a history of being rejected from community corrections.
              You also have a history of failing to appear and those are
              aggravators. Another aggravator is that this offense was
              committed while you were out on bond on another offense.
              When you are out on bond on another offense you are supposed
              to promise to maintain good and lawful behavior and not go out
              and commit any other offenses, yet you were driving when you
              knew you were not supposed to drive and you didn’t have a valid
              license. So, that puts you in jeopardy of not maintaining lawful
              conduct while this – while another case was pending; that’s an
              aggravator. Most importantly, the probation department finds
              that you are very high risk to re-offend based upon []. The
              probation department has found that you are very high risk to re-
              offend based upon your criminal history and based upon your
              ability not to follow probation rules and community corrections
              and the like.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 4 of 11
      (Tr. pp. 35-36). In its written sentencing order, the trial court enumerated as

      aggravating factors: “[Tate’s] criminal history, he violated bond on another

      case; he has had past Petitions to Revoke Probation filed and Failures to

      Appear; he has been rejected by Community Corrections, and he is at a high

      risk to reoffend.” (Appellant’s App. Vol. II, p. 21).


[8]   In Malenchik v. State, 938 N.E.2d 564, 575 (Ind. 2010), our supreme court

      concluded that “the nature of risk assessment tools is not to function as a basis

      for finding aggravating circumstances[;]” however,

              they can be significant sources of valuable information of judicial
              consideration in deciding whether to suspend all or part of a
              sentence, how to design a probation program for the offender,
              whether to assign an offender to alternative treatment facilities or
              programs, and such other corollary sentencing matters. The
              scores do not in themselves constitute an aggravating or
              mitigating circumstance because neither the data selection and
              evaluations upon which a probation officer or other
              administrator’s assessment is made nor the resulting scores are
              necessarily congruent with a sentence judge’s findings and
              conclusion regarding relevant sentencing factors.


      Id. at 572, 573. The Malenchik court reasoned that


              [h]aving been determined to be statistically valid, reliable, and
              effective in forecasting recidivism, the assessment tool scores
              may, and if possible should, be considered to supplement and
              enhance a judge’s evaluation, weighing, and application of other
              sentencing evidence in the formulation of an individualized
              sentencing program appropriate for each defendant.


              ****

      Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 5 of 11
               [A]ssessment instruments enable a sentencing judge to more
               effectively evaluate and weigh several express statutory
               sentencing considerations such as criminal history, the likelihood
               of affirmative response to probation or short term imprisonment,
               and the character and attitudes indicating that a defendant is
               unlikely to commit another crime. Furthermore, even apart from
               these statutory criteria, which do not limit the matters that the
               court may consider in determining the sentence, the offender’s
               scores and/or narrative results may be considered by a trial judge
               in reaching an informed sentencing decision.


       Id. at 573, 574 (internal references omitted).


[9]    During the sentencing hearing, the trial court explicitly designated four

       aggravators: Tate’s criminal history, his failures to appear, his probation

       violations, and committing a crime while out on bond. While not expressly

       categorized as an aggravator, the trial court found it “important[]” that the

       probation department assessed Tate to be at a high risk to re-offend. (Tr. p. 36).

       In its written sentencing statement, the trial court lists Tate’s “very high risk to

       re-offend” as an aggravator but did not reference the probation’s department

       formal assessment directly. (Appellant’s App. Vol. II, p. 21).


[10]   The determination that Tate was a high risk at re-offending is part and parcel to

       sentencing decisions. “Statements regarding a defendant’s risk to reoffend or

       failure to rehabilitate are ‘derivative of criminal history, [and] are legitimate

       observations about the weight to be given to facts appropriately noted by a

       judge in sentencing.” Mateo v. State, 981 N.E.2d 59, 74 (Ind. Ct. App. 2012),

       (citing Morgan v. State, 829 N.E.2d 12, 17 (Ind. 2005)), trans. denied. “The


       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 6 of 11
       likelihood that a defendant will commit further offenses once released is a

       crucial factor in determining whether a sentencing court should be lenient with

       defendant and whether to offer him probation, an alternate placement, or a fully

       executed sentence.” Mateo, 981 N.E.2d at 74.


[11]   We agree with the State that by not expressly defining the probation

       department’s risk assessment as an aggravator, the trial court used the

       assessment as directed by our supreme court, i.e., as a supplement to both the

       discretionary determination that Tate was at a high risk to re-offend and the

       broader determination of his overall sentence. After discussing Tate’s

       significant and lengthy criminal history, his failures to appear, his probation

       violations, and his violation of bond conditions, the trial court’s logical

       conclusion amounted to a finding that Tate was at risk to re-offend. By using

       the phrasing “most importantly,” the trial court merely enforced the value of its

       explicit aggravators with a conclusion also reached by the probation department

       in its risk assessment. (Tr. p. 36). In other words, the trial court independently

       determined Tate’s high risk to re-offend, which it then evaluated and supported

       by reference to the probation department’s risk assessment.


[12]   However, even if the trial court improperly considered the probation

       department risk assessment determination as a separate aggravator, we can say

       with confidence that, had the trial court considered only the proper aggravators,

       it would have imposed the same sentence. A “remand for resentencing may be

       the appropriate remedy if we cannot say with confidence that the trial court

       would have imposed the same sentence” had it considered the proper

       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 7 of 11
       aggravating circumstances. Anglemyer, 868 N.E.2d at 491. Besides the high risk

       to re-offend, the trial court found four other aggravators which are not disputed

       by Tate. “A single aggravating circumstance may be sufficient to enhance a

       sentence.” Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). On the other

       hand, the trial court found a single mitigating factor: Tate’s guilty plea. After

       weighing the aggravators and mitigator, the trial court sentenced Tate to a four-

       year aggravated sentence, which is one year more than the advisory sentence of

       a Level 5 felony. See I.C. § 35-50-2-6. Disregarding Tate’s risk to re-offend, still

       leaves four valid aggravators to be weighed against one mitigator. Accordingly,

       we conclude that the trial court did not abuse its discretion when it sentenced

       Tate.


                                           II. Appropriate Sentence


[13]   Pursuant to Indiana Appellate Rule 7(B), we 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.” Under this rule, the question is not whether another

       sentence is more appropriate, but whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The

       principal role of appellate review is to “leaven the outliers;” it is “not to achieve

       a perceived correct result in each case.” Cardwell v. State, 895 N.E.2d 1219,

       1225 (Ind. 2008). The appropriateness of the sentence turns on this court’s

       “sense of the culpability of the defendant, the severity of the crime, the damage

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

       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 8 of 11
       Id. at 1224. The defendant carries the burden of persuading this court that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       The defendant must show that his sentence is inappropriate in light of both his

       character and the nature of the offense. Williams v. State, 891 N.E.2d 621, 633

       (Ind. 2006).


[14]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at

       494. The sentencing range for a Level 5 felony is between one and six years,

       with the advisory sentence being three years. See I.C. § 35-50-2-6. Here, the

       trial court sentenced Tate to a four-year sentence with one year suspended.

       Tate’s sentence is not inappropriate in light of the nature of the offense. Tate

       pled guilty to operating a vehicle after his driving privileges were forfeited for

       life pursuant to a prior conviction. While there is nothing unique about his

       charge, Tate, however, fails to persuade us that the nature of his offense

       warrants a reduction of his sentence.


[15]   Turning to Tate’s character, we echo the trial court that Tate “just keep[s]

       getting into trouble[.]” (Tr. p. 35). Tate’s criminal history commenced in 2002,

       and throughout the years he has amassed four prior felony convictions for Class

       D felony theft, Class D felony possession of marijuana, and Class D felony

       operating a vehicle after being adjudged a habitual traffic offender. Thirty-two-

       year-old Tate has been found a habitual substance offender twice and has

       eleven misdemeanor convictions, two of which occurred after the commission

       of the instant offense. In the past, Tate has received the benefit of short

       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 9 of 11
       sentences, suspended sentences, longer jail sentences, unsupervised probation,

       supervised probation, home detention, work release, community service, and

       substance abuse treatment all to no avail. His criminal record establishes

       twelve failures to appear, violations of home detention and work release

       conditions, probation revocations, and the violation of bond conditions. Tate

       also started abusing alcohol when he was thirteen years old, and turned to using

       marijuana every day beginning in his early twenties until 2009. Thereafter, he

       used marijuana, synthetic marijuana, and ecstasy on occasion.


[16]   Clearly, lenient punishment has been wasted on Tate and there is no indication

       that a more lenient sentence now will encourage him to rehabilitate. While

       Tate testified to having bettered himself in the two weeks prior to the sentencing

       hearing, the evidence of this short-term good behavior cannot outweigh his long

       history of repetitive, criminal behavior. We agree with the State that “[s]hould

       Tate earnestly seek to reform his ways, he has opportunity to demonstrate as

       much throughout his incarceration, [and] during his subsequent probation

       period[.]” (Appellee’s Br. pp. 18-19). Accordingly, we conclude that Tate

       failed to establish that the nature of the crime and his character provide a reason

       to revise his sentence.


                                             CONCLUSION
[17]   Based on the foregoing, we conclude that the trial court properly sentenced

       Tate.


[18]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 10 of 11
[19]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 79A02-1612-CR-2909 | May 10, 2017   Page 11 of 11
