MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 05 2020, 10:38 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
R. Patrick Magrath                                      Benjamin J. Shoptaw
Alcorn Sage Schwartz & Magrath, LLP                     Deputy Attorney General
Madison, Indiana                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tammy Blevins,                                          June 5, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2822
        v.                                              Appeal from the Decatur Superior
                                                        Court
State of Indiana,                                       The Honorable Matthew D.
Appellee-Plaintiff,                                     Bailey, Judge
                                                        Trial Court Cause Nos.
                                                        16D01-1710-F6-1041
                                                        16D01-1811-CM-1491



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020                   Page 1 of 10
                                Case Summary and Issue
[1]   Following a guilty plea in two separate causes, Tammy Blevins was convicted

      of operating a vehicle with an alcohol concentration equivalent (“ACE”) of at

      least .15 as a Level 6 felony and operating a vehicle while intoxicated as a Class

      A misdemeanor. Blevins also admitted to being an habitual vehicular substance

      offender with respect to each cause. The trial court sentenced Blevins to an

      aggregate sentence of approximately six years, including 360 day consecutive

      sentences for each of her convictions and concurrent 1,440 day enhancements

      to each sentence due to her status as an habitual vehicular substance offender.

      The sentences were ordered to be served in the Indiana Department of

      Correction (“DOC”), with 360 days suspended to probation. Blevins appeals

      her sentence and raises one issue for our review: whether her sentence is

      inappropriate in light of the nature of her offenses and her character.

      Concluding that Blevins’ sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On October 5, 2017, at approximately 1:00 a.m., Officer Patrick Richards of the

      Decatur County Sheriff’s Department responded to a call that a blue truck had

      run into a sign at a St. Paul gas station. When Officer Richards arrived at the

      scene, he found the blue truck running in the parking lot with Blevins standing

      outside the driver’s side door. Blevins had driven the truck to the gas station

      and told Officer Richards that she had backed up near the sign but was not

      aware that she had hit it. While speaking with Blevins, Officer Richards

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 2 of 10
      identified signs of intoxication, including that Blevins smelled of alcohol, had

      bloodshot and glassy eyes, unsteady balance, and slurred speech. Blevins

      indicated that “she had drank a few but couldn’t recall how many.” Appellant’s

      Appendix, Volume 2 at 8. Officer Richards subsequently administered a series

      of field sobriety tests, all of which Blevins failed. Officer Richards then

      transported Blevins to the Decatur County Jail where a chemical test showed

      she had an ACE of .159. The State charged Blevins with Count I, operating a

      vehicle while intoxicated, a Class C misdemeanor, under cause number 16D01-

      1710-F6-1041 (“Cause Number 1041”). The State later amended its charging

      information to include Count II, operating a vehicle with an ACE of at least

      .15, a Class A misdemeanor; a sentencing enhancement under Indiana Code

      section 9-30-5-3(a)(1) for having a prior conviction for operating a vehicle while

      intoxicated; and an habitual vehicular substance offender enhancement alleging

      that Blevins had accumulated two or more prior unrelated vehicular substance

      offense convictions.


[3]   While Cause Number 1041 was still pending, at approximately 12:40 a.m. on

      November 18, 2018, Officer James Herbert with the Indiana State Police

      observed a vehicle in front of him traveling approximately thirty-seven miles per

      hour in a twenty-five miles per hour zone. He also observed the vehicle

      “weaving in its lane of travel” in a “zigzag pattern from its side of the road into

      the [oncoming] lane.” Id., Vol. 3 at 7. Officer Herbert initiated a traffic stop and

      discovered that Blevins was the driver. Officer Herbert identified signs of

      intoxication, including that Blevins smelled of alcohol, had bloodshot and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 3 of 10
      glassy eyes, poor balance and dexterity, and slow and slurred speech. Blevins

      admitted to drinking alcohol earlier in the evening. As a result, Officer Herbert

      administered a field sobriety test that Blevins failed. Officer Herbert transported

      Blevins to the Decatur County Jail where a chemical test showed she had an

      ACE of .139. The State charged Blevins with Count I, operating a vehicle while

      intoxicated in a manner that endangered a person, a Class A misdemeanor,

      under cause number 16D01-1811-CM-1491 (“Cause Number 1491”). The State

      later amended its charging information to include Count II, operating a vehicle

      with an ACE of at least .08, a Class C misdemeanor, and an habitual vehicular

      substance offender enhancement alleging that Blevins had accumulated two or

      more prior unrelated vehicular substance offense convictions.


[4]   On August 7, 2019, the parties appeared for a pre-trial conference on Cause

      Numbers 1041 and 1491, and Blevins moved to “withdraw her previously

      entered plea of not guilty in both of those cause numbers and enter a plea of

      guilty, not pursuant to a plea agreement, but open as to sentencing.” Transcript,

      Volume 2 at 5. In Cause Number 1041, Blevins pleaded guilty to both Count I

      and Count II and admitted to having a prior conviction and being an habitual

      vehicular substance offender. Likewise, in Cause Number 1491, Blevins

      pleaded guilty to both Count I and Count II and admitted to being an habitual

      vehicular substance offender. The trial court took the guilty pleas under

      advisement.


[5]   Blevins was then sentenced for Cause Numbers 1041 and 1491 in a single

      hearing on October 29, 2019. As to Cause Number 1041, the trial court

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 4 of 10
      accepted Blevins’ guilty plea and entered judgment of conviction only for Count

      II, operating a vehicle with an ACE of at least .15 as a Level 6 felony due to the

      enhancement for a prior conviction, and sentenced her to 360 days to be served

      in the DOC. With regard to Cause Number 1491, the trial court again accepted

      Blevins’ guilty plea and entered judgment of conviction only for Count I,

      operating a vehicle while intoxicated as a Class A misdemeanor, and sentenced

      her to serve 360 days with 360 days suspended to probation.1 Those sentences

      were ordered to be served consecutively. In addition, the trial court found

      Blevins to be an habitual vehicular substance offender and enhanced her

      sentences in both Cause Numbers by approximately four years, with the

      enhancements to be served concurrently. In total, Blevins was sentenced to

      approximately six years to be served in the DOC, with 360 days suspended to

      probation. Blevins now appeals. Additional facts will be supplied as necessary.



                                  Discussion and Decision
                                      I. Standard of Review
[6]   Under Indiana Appellate Rule 7(B), we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, [we] find[] that the

      sentence is inappropriate in light of the nature of the offense and the character



      1
        At the sentencing hearing, the trial court stated that Blevins’ sentence in Cause Number 1491 was
      suspended to probation for 350 days, as she was required to serve ten actual days as a mandatory minimum
      sentence. See Tr., Vol. 2 at 40. However, the trial court’s written Judgment of Conviction and Sentencing
      Order reflects that all 360 days are suspended to probation. Neither party raises this apparent conflict,
      however, and we therefore will not address it.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020                   Page 5 of 10
      of the offender.” The principal role of Rule 7(B) review “is to leaven the

      outliers, rather than to achieve a perceived ‘correct’ sentence.” McCallister v.

      State, 91 N.E.3d 554, 566 (Ind. 2018). We do not undertake the Rule 7(B)

      analysis 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). We may consider any factors in the record when conducting a

      Rule 7(B) review, but sentencing is primarily a discretionary function of the trial

      court that we afford considerable deference. Morris v. State, 114 N.E.3d 531, 538

      (Ind. Ct. App. 2018), trans. denied. “Such deference should prevail unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The

      defendant bears the burden of persuading this court on appeal that her sentence

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


                                 II. Inappropriate Sentence
                                      A. Nature of the Offense
[7]   Blevins argues that her sentence is inappropriate in light of the nature of her

      offenses because her offenses could not be characterized as “egregious or

      severe.” Appellant’s Brief at 11. She maintains that because no one was injured

      and she had no intent to injure others, her offenses did not warrant a lengthy

      sentence.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 6 of 10
[8]   We begin our analysis of the nature of the offense with the advisory sentence,

      which is the starting point selected by our legislature as an appropriate sentence

      for the crime committed. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App.

      2017). Under Cause Number 1041, Blevins was convicted of operating a vehicle

      as a Level 6 felony due to a prior conviction for operating a vehicle while

      intoxicated. The sentencing range for a Level 6 felony is six months to two and

      one-half years with the advisory sentence being one year. Ind. Code § 35-50-2-

      7(b). The trial court sentenced Blevins to 360 days executed in the DOC, which

      is less than the maximum sentence allowed and slightly less than the advisory

      sentence. Under Cause Number 1491, Blevins was convicted of operating a

      vehicle while intoxicated as a Class A misdemeanor. A person convicted of a

      Class A misdemeanor shall be imprisoned for not more than one year. Ind.

      Code § 35-50-3-2. Blevins was sentenced to just shy of one year. Under both

      Cause Numbers, Blevins’ sentences were enhanced by four years due to her

      habitual vehicular substance offender status. The sentencing range for a person

      found to be an habitual vehicular substance offender is at least one year but not

      more than eight years of imprisonment. Ind. Code § 9-30-15.5-2(d). Here, the

      four-year enhancements were well below the maximum time permitted under

      the statute. Thus, Blevins’ total sentence was not as lengthy as it could have

      been.


[9]   The nature of the offense is also found in the details and circumstances

      surrounding the offense and the defendant’s participation therein. Perry v. State,

      78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Blevins was charged with operating a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 7 of 10
       vehicle while intoxicated twice in slightly over one year. In the 2017 incident,

       Blevins damaged a sign on gas station property. In the 2018 incident, Blevins

       drove over the speed limit and in an erratic manner. Moreover, in Cause

       Number 1401, Blevins’ ACE was .159 and in Cause Number 1491 her ACE

       was .139 – both well above the legal limit of .08 in Indiana. Although

       fortunately, Blevins’ actions did not injure anyone, she put the safety of herself

       and others at risk by operating a vehicle on the road while intoxicated on two

       different occasions. Blevins has failed to demonstrate that the nature of her

       offenses renders her sentence inappropriate.


                                    B. Character of the Offender
[10]   Blevins next contends that her sentence is inappropriate with regard to her

       character. “A defendant’s life and conduct are illustrative of his or her

       character.” Morris, 114 N.E.3d at 539. One relevant factor in assessing

       character on appellate review is the defendant’s criminal history. Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. The significance of a

       criminal history “varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d 867,

       874 (Ind. Ct. App. 2007). Blevins’ criminal history is comprised of six prior

       misdemeanors, including two previous offenses of operating a vehicle while

       intoxicated, and one prior felony. After Blevins was charged and released in

       Cause Number 1041, she was arrested approximately a week later in an

       unrelated matter in Shelby County. In the Shelby County case, Blevins was

       charged with interfering with reporting a crime after she attempted to stop her

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 8 of 10
       mother from calling the police. At the time, Blevins was highly intoxicated,

       registering .194 in a portable breath test. See Tr., Vol. 2 at 28. Blevins was

       placed on probation for the Shelby County incident and ultimately violated that

       probation by committing the 2018 crime charged in Cause Number 1491.

       Therefore, she committed the 2018 crime while being on both pre-trial release

       and probation.


[11]   Blevins points to evidence offered at the sentencing hearing demonstrating her

       good character. Blevins notes that she is the sole caretaker for her eighty-three-

       year-old mother and that her incarceration will be a great hardship on her

       mother. Although Blevins’ incarceration will undoubtedly have an impact on

       her mother, who testified she relies on Blevins for “everything” now that her

       husband and son have passed, tr., vol. 2 at 33, every family member suffers

       some form of hardship when a family member is incarcerated, see Moyer v. State,

       83 N.E.3d 136, 143 (Ind. Ct. App. 2017) (noting that “any incarceration is

       likely to produce some hardship for the family”), trans. denied. The State argues,

       and we agree, that if her mother’s wellbeing were a true consideration for

       Blevins, she would not have continued to commit crimes that resulted in her

       being in this position. See Brief of Appellee at 9. Blevins also points to the facts

       that she has had significant losses, such as the death of her father, that

       contributed to her use of alcohol; that she accepted responsibility for her

       actions; and that she was remorseful for her conduct. But none of her

       contentions are so compelling that they would suggest her character is




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 9 of 10
       consistently positive and should overcome her criminal history and her current

       actions. See Stephenson, 29 N.E.3d at 122.


[12]   Simply put, Blevins behavior contradicts her assertion that she is remorseful

       and serious about reformation. She appears primarily remorseful that she got

       caught. And there is no evidence in the record of her completing – or even

       attempting – any substance abuse treatment that would help her address her

       alcohol abuse problem. Her actions show that even pending charges have not

       deterred her from committing additional offenses and illustrate her conscious

       disregard for the rule of law. See Rutherford, 866 N.E.2d at 874. Accordingly,

       Blevins has failed to persuade us that her character renders her sentence

       inappropriate.


[13]   In sum, Blevins has failed to meet her burden of persuading us that her six-year

       sentence for multiple counts of operating a vehicle while intoxicated and her

       status as an habitual vehicular substance offender is inappropriate in light of her

       offenses and character.



                                               Conclusion
[14]   After reviewing the record and giving due consideration to the trial court’s

       sentencing decision, we conclude Blevins’ six-year sentence is not inappropriate

       in light of her offenses and her character. Accordingly, we affirm.


[15]   Affirmed.


       May, J., and Vaidik, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020   Page 10 of 10
