MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Mar 21 2017, 6:24 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Everett Wade,                                            March 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1610-CR-2427
        v.                                               Appeal from the
                                                         Elkhart Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Gretchen S. Lund, Judge
                                                         Trial Court Cause Nos.
                                                         20D04-1602-F6-204
                                                         20D04-1605-F6-571



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2427 | March 21, 2017       Page 1 of 7
[1]   Everett Wade (“Wade”) pleaded guilty to two counts of operating a vehicle

      while intoxicated with a prior conviction,1 as Level 6 felonies, and to being a

      habitual vehicular substance offender. He was sentenced to an aggregate

      sentence of seven years with one year suspended to probation. Wade appeals,

      raising the following restated issue: whether his sentence is inappropriate in

      light of the nature of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In 1992, Wade was convicted twice for operating a vehicle while intoxicated.

      In October 2012, he was convicted a third time for operating a vehicle while

      intoxicated. Wade’s criminal history also included four felony convictions:

      dealing in cocaine as a Class B felony; child molesting as a Class C felony;

      possession of cocaine as a Class D felony; and theft as a Class D felony. He

      also had multiple misdemeanor convictions, which included convictions for

      trespass, possession of marijuana, resisting law enforcement, disorderly

      conduct, public intoxication, battery, conversion, possession of paraphernalia,

      and nine counts of check deception. Additionally, Wade had numerous

      violations of his probation and was on probation at the time the instant offenses

      were committed.




      1
          See Ind. Code §§ 9-30-5-2, 9-30-5-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2427 | March 21, 2017   Page 2 of 7
[4]   On February15, 2016, which was within five years of his 2012 conviction,

      Wade was discovered by the police, in a state of intoxication, asleep in the

      driver’s seat of his car and with the engine running. The State charged Wade,

      under Cause Number 20D04-1602-F6-204 (“Cause 204”), with operating a

      vehicle while intoxicated as a Class A misdemeanor, operating a vehicle with

      an alcohol concentration equivalent to at least .08 grams as a Class C

      misdemeanor, and operating a vehicle while intoxicated with a prior conviction

      as a Level 6 felony. On May 19, 2016, which was also within five years of his

      2012 conviction, police observed Wade driving left of the center line,

      discovered that he was intoxicated, and arrested him. The State charged Wade,

      under Cause Number 20D04-1605-F6-571 (“Cause 571”), with operating a

      vehicle while intoxicated as a Class A misdemeanor, operating a vehicle with

      an alcohol concentration equivalent to at least .08 grams as a Class C

      misdemeanor, and operating a vehicle while intoxicated with a prior conviction

      as a Level 6 felony. The State also charged Wade with being a habitual

      vehicular substance offender.


[5]   The two cases were adjudicated jointly, and on August 24, 2016, Wade pleaded

      guilty to one count of Level 6 felony operating a vehicle while intoxicated with

      a prior conviction under each cause number and to being a habitual vehicular

      substance offender under Cause 571. At the sentencing hearing, the trial court

      found the following aggravating factors: Wade’s criminal history, particularly

      his history of operating while intoxicated convictions; his history of probation

      violations and community corrections violations; and his failure to take


      Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2427 | March 21, 2017   Page 3 of 7
      “advantage of programming or alternative sanctions that were offered to him in

      the past.” Tr. at 27-28. In mitigation, the trial court found that Wade had

      taken responsibility for his actions by pleading guilty and was sincere in his

      remarks to the trial court. Id. at 28-29. The trial court found that the

      aggravating factors outweighed the mitigating factors and sentenced Wade,

      under Cause 204, to two and a half years with six months suspended for his

      conviction for Level 6 felony operating a vehicle while intoxicated with a prior

      conviction. Under Cause 571, the trial court imposed a sentence of two and a

      half years with six months suspended for Wade’s conviction for Level 6 felony

      operating a vehicle while intoxicated with a prior conviction and enhanced the

      sentence by adding two years for Wade’s status as a habitual vehicular

      substance offender. Each of the sentences was ordered to be served

      consecutively, which resulted in an aggregate sentence of seven years with one

      year suspended to probation. Wade now appeals.


                                     Discussion and Decision
[6]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

      statute if we deem it to be inappropriate in light of the nature of the offense and

      the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

      App. 2014). 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). It is the defendant’s burden on appeal to persuade the reviewing court



      Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2427 | March 21, 2017   Page 4 of 7
      that the sentence imposed by the trial court is inappropriate. Chappell v. State,

      966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[7]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day 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.” Id. at 1224.


[8]   Wade argues that the trial court erred in sentencing him and that his seven-year

      aggregate sentence, with six years executed, is inappropriate considering the

      nature of the offense and the character of the offender. He asserts that the

      nature of his offense was not the worst offense and that the evidence

      represented only “run-of-the-mill OWI offenses” because no one was injured

      and no property damage occurred. Appellant’s Br. at 12. As to his character,

      Wade contends that, although he has a criminal history, it primarily consists of

      offenses related to substance abuse and driving. Wade also claims that the

      record included information that spoke well of his character, including his

      acceptance of responsibility by pleading guilty without the benefit of a plea

      agreement, his cooperation with the pre-sentence investigation report, his

      employment before incarceration, and the fact that he took care of his mother



      Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2427 | March 21, 2017   Page 5 of 7
       when she was ill. Based on these things, Wade believes his sentence is

       inappropriate and should be reduced.


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

       point to determine the appropriateness of a sentence. Johnson v. State, 986

       N.E.2d 852, 856 (Ind. Ct. App. 2013) (citing Anglemyer v. State, 868 N.E.2d 482,

       494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007)). Wade pleaded guilty

       to two counts of Level 6 felony operating a vehicle while intoxicated with a

       prior conviction and to being a habitual vehicular substance offender. A person

       who commits a Level 6 felony shall be imprisoned for a fixed term of between

       six months and two and one-half years, with the advisory sentence being one

       year. Ind. Code § 35-50-2-7(b). A habitual vehicular substance offender is

       subject to an additional fixed term of at least one year but not more than eight

       years of imprisonment, to be added to the term of imprisonment imposed under

       Indiana Code chapter 35-50-2. Ind. Code § 9-30-15.5-2(d). Because Wade was

       released awaiting trial for Cause 204 when he was arrested and charged under

       Cause 571, his sentences were required to be served consecutively. Ind. Code §

       35-50-1-2(e). Therefore, the potential sentencing range that Wade faced for his

       convictions was between two and thirteen years. The trial court imposed an

       aggregate seven-year sentence with one year suspended to probation.


[10]   As to the nature of Wade’s offenses, within a three-month period of time, he

       operated a vehicle while intoxicated on two occasions. At the time of the

       offenses, Wade was on probation, and he committed his second offense under

       Cause 571 while he was released awaiting trial for his first offense under Cause

       Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2427 | March 21, 2017   Page 6 of 7
       204. Wade’s offenses were committed in close proximity with each other and

       while on he was probation. His present convictions constitute his fourth and

       fifth convictions for operating a vehicle while intoxicated, three of which have

       been in the past five years.


[11]   As to Wade’s character, he has a significant criminal history, which began

       when he was eighteen and includes four felony convictions and approximately

       twenty misdemeanor convictions. His felony convictions included the offenses

       of dealing in cocaine, possession of cocaine, theft, and child molesting. Wade

       had three prior convictions for operating a vehicle while intoxicated, and the

       present offenses represent his fourth and fifth convictions. Although Wade has

       been given opportunities for substance abuse treatment and to reform his

       behavior through programming and probation, he has repeatedly violated his

       probation, and the efforts to keep him from engaging in criminal behavior have

       not been successful. At sentencing, the State informed the trial court that Wade

       was not eligible for work release and that he was not a good candidate for home

       detention or probation due to his multiple violations in the past. Further,

       although the trial court accepted the sincerity of Wade’s claims that he wished

       to reform his behavior, the trial court was skeptical that he was unlikely to

       reoffend based on his history of reoffending considering the opportunities he

       was given to reform. Wade’s sentence is not inappropriate.


[12]   Affirmed.


       Robb, J., and Barnes, J., concur

       Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2427 | March 21, 2017   Page 7 of 7
