MEMORANDUM DECISION                                                       FILED
                                                                     Mar 31 2016, 7:52 am
Pursuant to Ind. Appellate Rule 65(D),                                    CLERK
this Memorandum Decision shall not be                                 Indiana Supreme Court
                                                                         Court of Appeals
regarded as precedent or cited before any                                  and Tax Court


court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Winfrey,                                         March 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1506-CR-656
        v.                                               Appeal from the Marion County
                                                         Superior Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49F09-1403-FD-13455



May, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016          Page 1 of 8
[1]   Jeffrey Winfrey agreed to plead guilty to Class D felony resisting law
                          1
      enforcement, Class D felony operating a vehicle while intoxicated with
                                    2                                                        3
      previous conviction, and a habitual substance offender enhancement. He

      asserts the court abused its discretion at sentencing when it found he lacked

      remorse and then used the lack of remorse as an aggravating factor. We affirm.


                                        Facts and Procedural History
[2]   On March 14, 2014, at approximately 11:30 p.m., Officer Gregory Shue, of the

      Indianapolis Metropolitan Police Department, was on routine patrol when he

      saw a white Saturn Vue driving at a high rate of speed without headlights or

      taillights illuminated. Winfrey was driving the Saturn. He drove around a car

      that was stopped at a stop sign and he proceeded through the intersection

      without stopping. Officer Shue activated his emergency lights and began to

      pursue the Saturn.


[3]   The Saturn eventually stopped and the officer approached it. As the officer

      reached the front wheel of his patrol car, the Saturn rolled and then stopped

      again. The officer ordered Winfrey to turn off the ignition and Winfrey

      complied. When Officer Shue continued toward the Saturn, Winfrey started




      1
          Ind. Code § 35-44.1-3-1(a)(3)(b)(1)(A) (2013).
      2
          Ind. Code § 9-30-5-3(a)(1) (2008).
      3
          Ind. Code § 35-50-2-10(b) (2006).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016       Page 2 of 8
      the car and drove away. Officer Shue notified dispatch of the situation and

      dispatch told Officer Shue the license plate on the Saturn was stolen.


[4]   Police officers pursued Winfrey. At some point, Winfrey rear-ended another

      vehicle but did not stop. The chase continued and approached speeds of 80 to

      90 miles per hour. One of the officers attempted a precision immobilization
                                 4
      technique (a “PIT”) in order to stop Winfrey’s vehicle, but Winfrey was able to

      maneuver out of the PIT. A second PIT maneuver was successful.


[5]   Winfrey’s vehicle spun and stopped at the curb. Winfrey then put his car in

      reverse and accelerated backward until he hit a guide wire on a utility pole. His

      car continued up the guide wire, causing the top of the pole to break and

      electrical wires to fall to the ground. The downed electrical wires started a fire

      that caused a power outage.


[6]   After the collision with the guide wire, Winfrey drove from the scene. Police

      officers pursued him. The pursuit ended when Winfrey turned into an alley and

      into a yard, where his vehicle became stuck in the grass and dirt.


[7]   Officers ordered Winfrey to exit his vehicle, but he did not. Instead, with

      officers watching, he threw a small plastic baggie out of the passenger-side

      window. One of the officers again ordered Winfrey to exit the car. Winfrey

      refused. The officer grabbed Winfrey by the arms in an attempt to remove him




      4
        The PIT maneuver, or precision immobilization technique, is a pursuit tactic used by a pursuing car to force
      a fleeing car to abruptly turn sideways, causing the driver to lose control and stop.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016              Page 3 of 8
       from the car, but Winfrey resisted. The officer then used a stun gun on

       Winfrey. Winfrey attempted to pull the stun gun probes from his body. It took

       several officers to eventually remove Winfrey from the car. Once Winfrey was

       out of the car, officers placed him on the ground and handcuffed him.


[8]    One of the officers who handcuffed Winfrey smelled the odor of an alcoholic

       beverage coming from his breath. Winfrey had glassy, bloodshot eyes and

       slurred speech. A preliminary breath test was administered and Winfrey tested

       positive for alcohol at a level of 0.162. The officer read Winfrey his implied

       consent rights and Winfrey agreed to submit to a blood test at the hospital.


[9]    While waiting for a vehicle to transport Winfrey to the hospital for the blood

       test, an officer noticed the baggie Winfrey threw from his car contained a green

       leafy substance. Inside Winfrey’s car, officers found a small plastic baggie that

       contained a large quantity of small green pills and a third small plastic baggie

       that also contained a green leafy substance. The contents of the baggies were

       analyzed; the green leafy substance was marijuana and the green pills were

       Diazepam, a controlled substance.


[10]   The State charged Winfrey with fourteen offenses and Winfrey pled guilty to

       resisting law enforcement, operating a vehicle while intoxicated with previous

       conviction, and the habitual substance offender enhancement. The State

       dismissed the remaining counts.


[11]   The plea agreement left sentencing open to the trial court. At the sentencing

       hearing, the trial court found aggravating and mitigating circumstances but

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016   Page 4 of 8
       found the aggravating circumstances outweighed the mitigating circumstances.

       Winfrey was sentenced to a total of eight years with four years to be served in

       the Indiana Department of Correction, two years under work release, and two

       years on probation.


                                      Discussion and Decision
[12]   Winfrey argues the trial court abused its discretion at his sentencing hearing

       because, according to Winfrey, it found his failure to present evidence of

       remorse to be an aggravating factor. Winfrey asks us to remand his case to the

       trial court for a new sentencing hearing, with a directive to the trial court to not

       consider as an aggravating factor his failure to present evidence of remorse.


[13]   Sentencing decisions rest within the sound discretion of the trial court and will

       be disturbed only on a showing of abuse of discretion. Anderson v. State, 989

       N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion

       occurs when the decision is clearly against the logic and effect of the evidence

       before the court or the reasonable inferences to be drawn therefrom. Id. A trial

       court abuses its discretion if it: (1) fails “to enter a sentencing statement at all;”

       (2) enters “a sentencing statement that explains reasons for imposing a sentence

       – including a finding of aggravating and mitigating factors if any – but the

       record does not support the reasons;” (3) enters a sentencing statement that

       “omits reasons that are clearly supported by the record and advanced for

       consideration;” or (4) considers reasons that “are improper as a matter of law.”

       Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on reh’g, 875


       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016   Page 5 of 8
       N.E.2d 218 (Ind. 2007). A trial court may consider as an aggravator the

       defendant’s lack of remorse. Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App.

       2002). A defendant lacks remorse “when he displays disdain or recalcitrance,

       the equivalent of ‘I don’t care.’” Id. “This is distinguished from the right to

       maintain one’s innocence, i.e., ‘I didn't do it.’” Id.


[14]   During his sentencing hearing, Winfrey testified he consumed alcohol and

       smoked marijuana the night of the episode, and the events “occurred because

       they laced that marijuana with somethin’ . . . .” (Tr. at 34.) Winfrey further

       testified he took full responsibility for his actions and he was not offering an

       excuse for his behavior, but offered the explanation to the court to explain why

       the events occurred and that his drug use was a contributing factor to his

       behavior. (Id. at 33-36.) While pronouncing the sentence, the trial court stated:


               And, when I was listening to you talk um, about what happened
               that evening, what struck me is that um, while you are taking
               responsibility – you say you’re taking responsibility for your um,
               conduct that night – uh, your attempt to mitigate that conduct by
               saying that, yeah, I smoked marijuana – and smoking marijuana
               is a crime; possession of marijuana is a crime – but all of this
               happened because the marijuana is laced with something else.


               Without any regard for the fact that, number one, you were
               doing something that was criminal. Number two, you shouldn’t
               have been behind the wheel of a car because your driver’s license
               was suspended. Number three, you shouldn’t have been drinking
               and behind the wheel of a car. Um, and the fact that you wanted
               to hang everything on this um, claim of having the marijuana
               laced, is really troubling for me. Because that leaves in my mind


       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016   Page 6 of 8
               a question about whether or not you are really accepting
               responsibility for your conduct.


               So, I – I – I have to find in my own mind that the – while you
               um, say that this is not an excuse, I think you were trying to use
               it as one. The Court finds that one of the aggravating
               circumstances is that while you have uh, plead [sic] guilty, the
               Court did not see any evidence of any remorse for your conduct.


       (Id. at 51-52.)


[15]   Winfrey offered an explanation as to what he believed contributed to his

       behavior. The trial court determined the explanation amounted to an excuse

       for his behavior. The trial court questioned whether Winfrey took

       responsibility for his conduct, and perceived Winfrey’s excuse as a lack of

       remorse. Our Supreme Court has indicated a trial court can consider “its

       perception of a defendant’s remorse or lack thereof.” Schiro v. State, 479 N.E.2d

       556, 559 (Ind. 1985), (emphasis added) reh’g denied, cert. denied, 475 U.S. 1036

       (1986). We give substantial deference to the trial court’s evaluation of remorse

       because the trial court has the ability to directly observe the defendant and is in

       the best position to determine whether the remorse is genuine. Corralez v. State,

       815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004). We cannot say that the trial court

       abused its discretion in finding Winfrey’s explanation showed a lack of

       remorse.


[16]   The trial court further determined that Winfrey’s lack of remorse was an

       aggravating factor. Winfrey refers us to nothing that would cause us to second


       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016   Page 7 of 8
       guess the trial court’s determination. See Veal v. State, 784 N.E.2d 490, 494

       (Ind. 2003) (“A trial court may find a defendant’s lack of remorse to be an

       aggravating factor.”).


                                                 Conclusion
[17]   The trial court did not abuse its discretion when it found Winfrey lacked

       remorse and his lack of remorse was an aggravating factor. Accordingly, we

       affirm his sentence.


[18]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-656 | March 31, 2016   Page 8 of 8
