      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Jul 17 2019, 10:02 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.
      Madison, Indiana                                          Attorney General of Indiana
                                                                Samuel J. Dayton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rocky Lee McMurray,                                       July 17, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-2543
              v.                                                Appeal from the Dearborn
                                                                Superior Court
      State of Indiana,                                         The Honorable Sally A.
      Appellee-Plaintiff.                                       McLaughlin, Judge
                                                                Trial Court Cause No.
                                                                15D02-1701-F4-3



      Pyle, Judge.


[1]   Rocky McMurray (“McMurray”) appeals, following a guilty plea, the aggregate

      twenty-year sentence imposed for his Level 4 felony causing death when


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019                   Page 1 of 8
      operating a vehicle with an alcohol concentration equivalent (“ACE”) of 0.15

      or more conviction1 and his habitual vehicular substance offender (“HVSO”)

      adjudication.2 He argues that his sentence is inappropriate. Concluding that

      McMurray has failed to show that his sentence is inappropriate, we affirm his

      sentence.


[2]   We affirm.


                                                        Issue
                 Whether McMurray’s sentence is inappropriate pursuant to
                 Indiana Appellate Rule 7(B).


                                                        Facts
[3]   In January 2017, McMurray had a criminal history that included numerous

      convictions relating to driving a vehicle while intoxicated and public

      intoxication. One such drinking-and-driving offense, which occurred in

      Kentucky in 2005, resulted in the death of another person.


[4]   On January 24, 2017, McMurray, who had been drinking alcohol, drove his car

      across the center line and struck the car driven by Steven Ahaus (“Ahaus”).




      1
        IND. CODE § 9-30-5-5. We note that, in the recent 2019 session, our legislature amended this statute to be
      effective July 1, 2019. That recent amendment does not affect this appeal.
      2
          I.C. § 9-30-15.5-2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019                      Page 2 of 8
      Ahaus died as a result of McMurray’s actions. McMurray had a blood alcohol

      level of 0.18.


[5]   The State ultimately charged McMurray with: (1) Level 4 felony causing death

      when operating a vehicle while intoxicated (“OVWI”) with a prior operating

      while intoxicated conviction within ten years; (2) Level 5 felony reckless

      homicide; (3) Class A misdemeanor OVWI endangering a person; (4) Level 4

      felony causing death when operating a vehicle with an ACE of 0.15 or more;

      (5) Level 4 felony operating a vehicle causing death with a schedule I or II

      controlled substance or metabolites in the blood. Additionally, the State alleged

      that McMurray was an HVSO, which was based on McMurray’s prior

      convictions for: (1) Class A misdemeanor OVWI in 1998; (2) Class D felony

      OVWI with a prior conviction in 2002; (3) manslaughter in the second degree

      and OVWI second offense within five years, which occurred in Kentucky in

      2005; and (4) Class A misdemeanor OVWI and Class D felony possession of a

      controlled substance in 2012.


[6]   McMurray later entered into a plea agreement and pled guilty to the Level 4

      felony causing death when operating a vehicle with an ACE of 0.15 or more

      charge and the allegation that he was an HVSO. In exchange, the State

      dismissed the remaining four charges. The plea agreement provided that

      sentencing was open to the trial court’s discretion.


[7]   During McMurray’s sentencing hearing, Ahaus’s wife and some family

      members testified about the devastation that resulted from Ahaus’s death,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019   Page 3 of 8
      including the fact that Ahaus’s wife was left homeless for a few months after

      Ahaus’s death due to him being the sole provider in their family. Additionally,

      the State presented exhibits during the sentencing hearing. The State presented

      McMurray’s blood test results, which revealed that McMurray’s blood alcohol

      level was 0.18 and that he had oxycodone and opiates in his system. The State

      also presented a video obtained from a residence near the scene of the offense.

      The video showed that McMurray had crossed the center line and hit Ahaus’s

      car head on.


[8]   The presentence investigation report (“PSI”) showed that McMurray had an

      extensive criminal history, consisting predominantly of alcohol-related offenses

      in Indiana and Kentucky and spanning in time from 1991 to 2012. Specifically,

      McMurray had amassed the following convictions: (1) Class A misdemeanor

      OVWI endangering a person in 1991; (2) Class B misdemeanor disorderly

      conduct in 1992; (3) Class B misdemeanor public intoxication in 1993; (4) Class

      B misdemeanor public intoxication in 1995; (5) alcohol intoxication in a public

      place in Kentucky in 1996; (6) Class A misdemeanor OVWI endangering a

      person in 1998; (7) Class B misdemeanor public intoxication and Class A

      misdemeanor battery resulting in bodily injury in 1999; (8) alcohol intoxication

      in a public place in Kentucky in 2001; (9) Class D felony OVWI with a prior

      conviction in 2002; (10) operating on a suspended license in Kentucky in 2003;

      (11) alcohol intoxication in a public place in Kentucky in January 2005; (12)

      alcohol intoxication in a public place in Kentucky in April 2005; (13)




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019   Page 4 of 8
       manslaughter and OVWI in Kentucky in May 2005;3 (14) Class A

       misdemeanor OVWI endangering a person, Class D felony possession of a

       controlled substance, and habitual substance offender in 2012. McMurray had

       been ordered to complete counseling and had violated probation in some of

       these causes.


[9]    When issuing the sentencing order, the trial court reviewed the details of

       McMurray’s criminal history, specifically noting that this current offense was

       McMurray’s sixth OVWI conviction and the second time that McMurray had

       taken another person’s life when he drove while intoxicated. The trial court

       determined that McMurray’s criminal history outweighed any mitigating

       circumstances. The trial court also noted the significant impact that

       McMurray’s offense had on the victim’s family. The trial court imposed a

       twelve (12) year sentence for McMurray’s Level 4 felony causing death when

       operating a vehicle with an ACE of 0.15 or more conviction and enhanced it by

       eight (8) years for his HVSO adjudication, thus resulting in an aggregate twenty

       (20) year sentence. McMurray now appeals.


                                                    Decision
[10]   McMurray argues that his aggregate twenty-year sentence is inappropriate. He

       contends that the imposition of a fully executed sentence was not warranted




       3
        McMurray committed the manslaughter and OVWI offenses in May 2005 and was sentenced in October
       2005. He received a seven and one-half (7½) year sentence with five (5) years suspended.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019           Page 5 of 8
       because the manner in which he committed his crime “was not among the

       worst of the worst offenses” and his character “did not place him in the

       category of the worst of the worst offenders.” (McMurray’s Br. 11).


[11]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied.


[12]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, McMurray entered a guilty plea and was convicted of Level 4 felony

       causing death when operating a vehicle with an ACE of 0.15 or more. He also

       admitted that he was an HVSO. A Level 4 felony has a sentencing range of two

       (2) years to twelve (12) years with an advisory sentence of six (6) years. I.C. §

       35-50-2-5.5. Additionally, the range for an HVSO determination is “at least

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019   Page 6 of 8
       one (1) year but not more than eight (8) years[.]” I.C. § 9-30-15.5-2(d). Here,

       the trial court imposed a maximum twelve-year sentence for McMurray’s Level

       4 felony and enhanced it by eight years for his HVSO determination, resulting

       in an aggregate term of twenty years.


[13]   Turning to the nature of McMurray’s offense, we note that McMurray drank

       alcohol to the extent that he had a 0.18 blood alcohol level (more than twice the

       legal limit), got into a car, and drove on the roads in Dearborn County.

       McMurray crossed the center line, struck Ahaus’s car head on, and caused

       Ahaus’s death. The nature of the offense is exacerbated by the fact that, at the

       time of this offense, McMurray had five prior OWVI convictions and had

       previously caused death of another person when driving drunk.


[14]   Turning to McMurray’s character, we note that his poor character is revealed

       by an extensive criminal history with alcohol-related offenses that spans

       decades. McMurray has had repeated attempts at probation, some of which

       resulted in violations. Even after serving a partially executed sentence for his

       manslaughter/OVWI convictions in 2005 and an executed sentence for his

       OVWI conviction in 2012, McMurray chose to drive his car while intoxicated.

       Additionally, as noted by the trial court in its sentencing order, McMurray had

       previously been ordered to participate in counseling but did not actively seek

       treatment. McMurray has shown that he has a disregard for the law and is a

       danger to the public.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019   Page 7 of 8
[15]   McMurray has not persuaded us that his aggregate twenty-year sentence for his

       Level 4 felony causing death when operating a vehicle with an ACE of 0.15 or

       more conviction and his HVSO adjudication is inappropriate. Therefore, we

       affirm the sentence imposed by the trial court.


[16]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2543 | July 17, 2019   Page 8 of 8
