MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                        Dec 15 2017, 7:42 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. Elkin                                        Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William Epperly,                                        December 15, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A05-1704-CR-812
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable Douglas A. Tate,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        34D03-1601-CM-61



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017          Page 1 of 9
                                       Statement of the Case
[1]   William Epperly (“Epperly”) appeals his sentence, following his guilty plea to

      Class A misdemeanor operating a vehicle while intoxicated and endangering a

      person1 and Class A misdemeanor leaving the scene of an accident with bodily

      injury.2 The trial court imposed a one-year sentence for each conviction and

      ultimately ordered them to be served concurrently to each other. Epperly

      argues that: (1) the trial court abused its discretion by failing to identify and

      weigh aggravating and mitigating circumstances and by ordering him to serve

      his two sentences consecutively; and that (2) his aggregate one-year sentence is

      “manifestly unreasonable.”


[2]   We conclude that the trial court did not abuse its discretion because it was not

      required to articulate and balance aggravating and mitigating circumstances

      when imposing a sentence on a misdemeanor conviction. Furthermore, the

      trial court did not impose consecutive sentences; thus, Epperly’s argument that

      it abused its discretion by ordering consecutive sentences is without merit.

      Epperly’s last argument, which we restate as whether his sentence is

      inappropriate, is waived based on Epperly’s lack of cogent argument. Waiver

      notwithstanding, Epperly’s sentence is not inappropriate.


[3]   We affirm.




      1
          IND. CODE § 9-30-5-2(b).
      2
          I.C. § 9-26-1-1.1.


      Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 2 of 9
                                                         Issues
               1. Whether the trial court abused its discretion when sentencing
               Epperly.

               2. Whether Epperly’s sentence is inappropriate.

                                                         Facts3
[4]   In January 2016, Epperly, who had been drinking vodka, drove his truck into a

      car driven by Erin Wetzold (“Wetzold”), injuring her. Epperly left his truck on

      the street and fled the scene on foot. Wetzold and another witness saw Epperly

      walk into a nearby mobile home park. When the police arrived on the scene,

      one of the officers found an empty bottle of vodka on the floor board of

      Epperly’s truck. Another officer went to the mobile home park and found

      Epperly, who smelled of alcohol and refused to take a portable breath test and a

      chemical test. Epperly threatened officers as they handcuffed him. The officers

      took Epperly back to the scene of the collision, and the witness positively

      identified him. As the police transported Epperly to the hospital to have a

      blood draw, he urinated on himself. Once at the hospital, Epperly resisted

      having the blood draw, and the officers had to physically restrain him.


[5]   Thereafter, the State charged Epperly with Count I, Class A misdemeanor

      operating a vehicle while intoxicated; Count II, Class A misdemeanor resisting




      3
        The record on appeal does not contain a copy of Epperly’s guilty plea transcript. Therefore, the facts
      regarding Epperly’s crimes are taken from the probable cause affidavit. The chronological case summary
      reveals that, during his guilty plea hearing, Epperly stipulated that the probable cause affidavit applied to the
      charges to which he was pleading guilty.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017               Page 3 of 9
      law enforcement; Count III, Class A misdemeanor leaving the scene of an

      accident with bodily injury; Count IV, Class A infraction operating a motor

      vehicle without financial responsibility; and Count V, habitual substance

      offender.


[6]   In February 2017, Epperly pled guilty to Class A misdemeanor operating a

      vehicle while intoxicated and endangering a person and Class A misdemeanor

      leaving the scene of an accident with bodily injury, and he admitted that he had

      committed the Class A infraction operating a motor vehicle without financial

      responsibility.4


[7]   At Epperly’s sentencing hearing, the State read into evidence Wetzold’s victim-

      impact statement. In this statement, Wetzold asserted that Epperly had totaled

      her car, caused her to have “excruciating” pain, and left her with “lifelong

      injuries[,]” including “nerve pain and horrible back pain.” (Tr. Vol. 2 at 6).

      The State argued that Epperly should be sentenced to the maximum time

      allowable based on Epperly having four prior OWIs and having a blood alcohol

      content of .17 at the time of his offenses. The trial court imposed one (1) year

      sentences for each of Epperly’s Class A misdemeanor convictions (Counts I and

      III) and ordered them to be served consecutively at the county jail. However,

      the trial court later amended its sentencing order “to show that Counts I and III




      4
       Prior to Epperly’s guilty plea, the State dismissed the Class A misdemeanor resisting law enforcement
      charge, and it dismissed the habitual substance offender allegation when Epperly pled guilty to the remaining
      charges.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017           Page 4 of 9
       are to run concurrently.” (App. Vol. 2 at 10). The trial court also imposed a

       fine for Epperly’s infraction and suspended his driver’s license for one year.

       Epperly now appeals.


                                                  Decision
[8]    On appeal, Epperly contends that: (1) the trial court abused its discretion when

       sentencing him; and (2) his sentence is inappropriate. We will review each

       argument in turn.


       1. Abuse of Discretion


[9]    Epperly contends that the trial court abused its discretion by failing to identify

       and weigh aggravating and mitigating circumstances and by imposing

       consecutive sentences on his two misdemeanor convictions.


[10]   As for Epperly’s argument regarding aggravating and mitigating circumstances,

       our Court has repeatedly explained that a trial court is not required to identify

       and weigh aggravating and mitigating circumstances when imposing a sentence

       for misdemeanor convictions. See Stephenson v. State, 53 N.E.3d 557, 561 (Ind.

       Ct. App. 2016) (citing Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct. App.

       2006), clarified on reh’g) (explaining that a trial court is not required to identify

       and weigh aggravating and mitigating circumstances when imposing a sentence

       for a misdemeanor conviction because misdemeanor sentencing statutes do not

       provide for an advisory sentence but, instead, provide for a maximum allowable

       sentence). Therefore, Epperly’s argument is without merit. See, e.g., Stephenson,

       53 N.E.3d at 561.
       Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 5 of 9
[11]   Equally without merit is Epperly’s consecutive sentencing argument. Here, the

       trial court initially ordered Epperly’s sentences to be served consecutively.

       However, as noted by Epperly in his statement of facts, the trial court thereafter

       amended its sentencing order and clarified that the sentences would be served

       concurrently. Thus, Epperly’s argument is without merit.


       2. Inappropriate Sentence


[12]   Epperly argues that his sentences for his Class A misdemeanor operating a

       vehicle while intoxicated and endangering a person and his Class A

       misdemeanor leaving the scene of an accident with bodily injury convictions

       are “manifestly unreasonable.” (Epperly’s Br. 8, 12).


[13]   We note that the “manifestly unreasonable” standard has been obsolete since

       2001. See Marcus v. State, 27 N.E.3d 1134, 1135 (Ind. Ct. App. 2015). Thus, we

       restate the issue as whether Epperly’s sentence is inappropriate. 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


       Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 6 of 9
       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.


[14]   Here, Epperly was convicted of two Class A misdemeanors. The sentencing

       statute for Class A misdemeanors provides that “[a] person who commits a

       Class A misdemeanor shall be imprisoned for a fixed term of not more than one

       (1) year[.]” I.C. § 35-50-3-2. The trial court imposed concurrent sentences of

       one (1) year executed in the county jail for each of Epperly’s Class A

       misdemeanor convictions. Thus, the trial court imposed an aggregate one-year

       sentence.


[15]   Epperly fails to address how the nature of his offenses and his character render

       his sentence inappropriate.5 Because he has failed to provide relevant, cogent

       argument, we conclude that he has waived this sentencing challenge. See Ind.

       Appellate Rule 46(A)(8)(a) (requiring an appellant to support an argument with

       cogent argument). See also Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App.

       2016) (waiving a defendant’s sentencing argument where he failed to provide a

       cogent argument).


[16]   Waiver notwithstanding, Epperly’s sentence is not inappropriate. The nature of

       Epperly’s offenses involved him driving while drunk, running his truck into

       Wetzold’s car and injuring her, and then fleeing the scene of the accident on




       5
        Epperly merely argues that the trial court should have found certain mitigating circumstances. However, as
       noted above, the trial court was not required to identify and weigh aggravating and mitigating circumstances
       when imposing a sentence for misdemeanor convictions. See Stephenson, 53 N.E.3d at 561.

       Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017          Page 7 of 9
       foot. Once the police apprehended and arrested Epperly, he threatened the

       officers and refused to take a portable breath test and a chemical test. Epperly’s

       aggressive actions continued at the hospital where the police took him for a

       blood draw. The officers had to physically restrain him in order to get the

       blood draw, which, according to the State’s sentencing argument, revealed that

       Epperly had a blood alcohol content of .17.


[17]   Turning to Epperly’s character, we note that Epperly concedes that his

       “criminal history is extensive.” (Epperly’s Br. 7). Epperly, who was fifty-nine

       years old at the time of sentencing, has a criminal history that spans from 1980

       to his present offenses and includes time served in Indiana Department of

       Correction. At the time of his current offenses, he was on probation from

       convictions in three separate causes for the following offenses: (1) Level 6

       felony operating a vehicle after being an habitual traffic offender; (2) Level 6

       felony criminal reckless committed with a deadly weapon and Class B

       misdemeanor public intoxication endangering the person’s life; and (3) Level 6

       felony residential entry. Additionally, Epperly has multiple alcohol-related

       convictions, including public intoxication and operating a vehicle while

       intoxicated. Epperly’s character reveals a disregard for the law and the

       authority of the courts.


[18]   Epperly has not persuaded us that his aggregate one-year executed sentence is

       inappropriate. Therefore, we affirm the sentence imposed by the trial court.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 8 of 9
[19]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 9 of 9
