Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                  Dec 07 2012, 10:35 am
court except for the purpose of
establishing the defense of res judicata,                         CLERK
                                                                of the supreme court,

collateral estoppel, or the law of the case.                    court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                 GREGORY F. ZOELLER
Crown Point, Indiana                            Attorney General of Indiana

                                                JAMES B. MARTIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL R. KROHN,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 45A03-1203-CR-131
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Diane Ross Boswell, Judge
                             Cause No. 45G03-1108-FD-166


                                     December 7, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                STATEMENT OF THE CASE

       Appellant-Defendant, Michael R. Krohn (Krohn), appeals his sentence for

operating a motor vehicle while intoxicated causing serious bodily injury, a Class D

felony, Ind. Code § 9-30-5-4.

       We affirm.

                                         ISSUES

       Krohn raises two issues on appeal, which we restate as follows:

       (1) Whether the trial court abused its discretion in identifying aggravating and

mitigating factors; and

       (2) Whether the trial court’s sentence was improper in light of the nature of

Krohn’s offense and his character.

                          FACTS AND PROCEDURAL HISTORY

       On the afternoon of April 23, 2011, William Goodwin (Goodwin) was riding on

his motorcycle southbound on Cline Avenue in Schererville, Indiana. As he approached

the parking lot of a restaurant, Krohn pulled out directly in front of him driving a

Chevrolet truck. Krohn saw Goodwin approaching and stopped in the middle of the

roadway, unsure what to do. Goodwin applied his brakes, but was unable to stop his

motorcycle and ran into the truck’s driver’s side door.

       A witness saw the accident and ran inside the restaurant to prompt someone to call

911. She then rushed back out to attend to Goodwin at the scene of the crash. She talked

to Goodwin and did not smell any alcohol on his breath. She also spoke to Krohn, who
                                         2
had gotten out of his truck and lit a cigarette. She noticed that Krohn “definitely seemed

like he was on something because he was out of it.” (Appellant’s App. p. 26).

       Police officers reported to the scene and questioned Krohn. He admitted that he

had been drinking the previous night and that prior to the accident he had been drinking

an energy drink, which was in his truck. The energy drink was a Sparks energy drink and

contained six percent alcohol. The officers found one full can of Sparks energy drink and

one completely empty can in the truck’s passenger compartment. They also observed

that there was a 1.75 liter bottle of Bacardi and a 1.75 liter bottle of Southern Comfort in

the passenger compartment, both of which were open and had contents missing.

       While talking to Krohn, the police officers noticed that he had a yellow stain on

his teeth, lips, tongue, and mouth and also had an odor of an “alcoholic type beverage” on

his breath. (Appellant’s App. p. 25). Additionally, he had watery and bloodshot eyes, a

flushed red face, slurred and mumbled speech, and poor hand coordination. The officers

conducted multiple field sobriety tests, and Krohn failed each test.            They also

administered a portable breath test, which registered that Krohn had a blood alcohol

content of 0.21. Krohn thereafter refused to take further chemical tests.

       Goodwin was taken by ambulance to the local hospital, where he was treated for

multiple blunt force trauma and intra-abdominal bleeding.           Subsequently, he was

transferred to a hospital in Illinois, where he received additional treatment for two

months. During that time, he spent three weeks in a medically induced coma, had to

undergo thirteen different surgeries, and suffered from septic shock and pneumonia. His

                                             3
injuries required that he undergo an ileostomy procedure. Seven months later, he still had

and maintained an ileostomy bag, and it is uncertain whether he will ever be able to have

the bag removed.

       On August 3, 2011, the State filed an Information charging Krohn with Count I,

operating a vehicle while intoxicated causing serious bodily injury, a Class D felony, I.C.

§ 9-30-5-4; Count II, operating a vehicle while intoxicated, a Class A misdemeanor, I.C.

§ 9-30-5-2; and Count III, operating a vehicle while intoxicated, a Class C misdemeanor,

I.C. § 9-30-5-2. On January 18, 2012, Krohn pled guilty to all three Counts.

       On February 16, 2012, the trial court accepted Krohn’s plea and held a sentencing

hearing, at which both Goodwin and his wife testified to the impact Krohn’s actions had

made on their lives. Goodwin’s wife told the trial court that Goodwin and her family

have suffered “[i]ndescribable” mental anguish. (Transcript p. 24). Goodwin has trouble

sleeping because he has to sleep in a recliner rather than his bed, due to the ileostomy

bag, and has to get up three or four times a night to drain the bag. During the day, he has

to deal with leaks from the bag, which are embarrassing and which he can never predict.

In addition, Goodwin’s wife testified that he suffers from night terrors concerning the

accident, as well as problems with his back and stomach. Goodwin no longer has

stomach muscles and requires help to get in and out of his recliner. At the time of the

sentencing hearing, Goodwin still required an additional surgery. His wife testified that

even if doctors are able to remove his ileostomy bag during this surgery, he will still have

to live with significant scarring on his chest, neck, and abdomen for the rest of his life.

                                              4
       At the conclusion of the evidence, the trial court sentenced Krohn to thirty months

on Count I, with six of those months to be served in a community transition program. It

found that the seriousness of Krohn’s offense was an aggravating factor, while his lack of

a criminal history was a mitigating factor. The trial court did not enter a judgment of

conviction on Counts II and III as they were lesser-included offenses.

       Krohn now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                          I. Aggravating and Mitigating Factors

       Krohn argues on appeal that the trial court abused its discretion in identifying

aggravating and mitigating factors. Under our advisory sentencing scheme, a trial court

may impose any legal sentence “regardless of the presence or absence of aggravating

circumstances.” Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App. 2007), trans. denied.

However, trial courts are required to issue a sentencing statement whenever sentencing a

defendant for a felony. Id. If the sentencing statement includes a finding of aggravating

or mitigating circumstances, then it must identify all significant aggravating and

mitigating circumstances and explain why each circumstance has been determined to be

either aggravating or mitigating. Id. We review a trial court’s sentencing decisions for

an abuse of discretion. Id. A trial court can abuse its discretion by either failing to issue

a sentencing statement, by issuing a statement that indicates the reasons for a sentence

“but the record does not support the reasons, or the sentencing statement omits reasons



                                             5
that are clearly supported by the record and advanced for consideration, or the reasons

given are improper as a matter of law.” Id.

                                  A. Aggravating Factors

       With respect to aggravating factors, Krohn argues that the trial court abused its

discretion because it did not explain why the seriousness of his offense was an

aggravating factor. He asserts that, instead, the damages that resulted from his offense

were typical of operating a vehicle while intoxicated causing bodily injury. In addition,

he argues that the trial court abused its discretion in finding the seriousness of his offense

as an aggravating factor because “serious bodily injury” is also an element of the offense.

       In its sentencing statement, the trial court stated that “the seriousness of this crime

does require an aggravated sentence” without explaining the evidence supporting that

finding. (Tr. p. 41). Krohn notes that the trial court did not identify whether the

surgeries Goodwin underwent were serious or why he was medically induced into a

coma. We cannot agree that the trial court needed to go so far as to rate the seriousness

of each individual surgery in determining the severity of Goodwin’s injuries. Instead, we

conclude that while the trial court’s sentencing statement was brief, the evidence

supported its determination that the seriousness of Krohn’s offense was an aggravating

factor. Goodwin and his wife testified to the pain and mental anguish Goodwin has

suffered as a result of Krohn’s actions, including undergoing several surgeries, being

medically induced into a coma, having to use an ileostomy bag, and having to live with

significant scarring for the rest of his life. In light of this evidence, we cannot agree that

                                              6
the trial court abused its discretion in finding that the seriousness of Krohn’s offense was

an aggravating factor.

       In addition, we do not agree with Krohn that this aggravating factor was improper

because “serious bodily injury” was also an element of the offense. It is well-established

in Indiana that “a trial court may not use a material element of the offense as an

aggravating circumstance.” Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011),

trans. denied.   However, the nature and circumstances of a crime may be a valid

aggravator. Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012). For instance,

the harm or injury suffered by a victim may be aggravating “if such harm was significant

and greater than the elements necessary to prove the commission of the offense.” Id.

       Under the Indiana Code, an injury can rise to the level of serious bodily injury

merely if there is “extreme pain” or “unconsciousness.” See I.C. § 35-31.5-2-292. As

listed above, Goodwin’s injuries were far more serious than “extreme pain” or

“unconsciousness.” See I.C. § 35-31.5-2-292. Accordingly, we conclude that the trial

court did not abuse its discretion in determining that the harm Goodwin suffered was

greater than necessary to prove the commission of the offense; thus, the trial court did not

abuse its discretion in finding that the seriousness of the crime was an aggravating factor.

                                  B. Mitigating Factors

       With regards to mitigating circumstances, Krohn argues that the trial court abused

its discretion in failing to consider his guilty plea as a mitigating factor. He asserts that



                                             7
the trial court should have given the plea mitigating weight as he did not receive anything

from the State in exchange for the plea, and he did not wait until the eve of trial to plead.

       In order to show that a trial court failed to identify or find a mitigating factor, the

defendant must establish that the mitigating evidence is both significant and clearly

supported by the record.      Rogers v. State, 958 N.E.2d 4, 9 (Ind. Ct. App. 2011).

Although a failure to find mitigating circumstances clearly supported by the record may

imply that the trial court improperly overlooked them, the trial court is not obligated to

explain why it has chosen not to find mitigating circumstances. Id. Likewise, the trial

court is not obligated to accept the defendant’s argument as to what constitutes a

mitigating factor.    Id.   Our supreme court has held that a guilty plea does not

automatically amount to a significant mitigating factor. Wells v. State, 836 N.E.2d 475,

479 (Ind. Ct. App. 2005), trans. denied. For instance, a guilty plea does not rise to the

level of significant mitigation where the defendant has received a substantial benefit from

the plea or where the evidence against the defendant was such that the decision to plead

guilty was merely a pragmatic one. Id.

       We conclude that Krohn’s decision to plead guilty was merely pragmatic in light

of the overwhelming evidence against him. In order to convict Krohn of operating a

vehicle while intoxicated causing serious bodily injury, the State was required to prove

that he “cause[d] serious bodily injury to another person when operating a vehicle: []

with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of

alcohol per: [] two hundred ten [] liters of [his] breath; [or] while intoxicated.” I.C. § 9-

                                              8
30-5-4. Krohn admitted that he had been drinking the previous night and had been

drinking an energy drink containing alcohol prior to the accident. Police officers found

two 1.75 liter bottles of alcohol in Krohn’s passenger compartment, and each was

partially empty. Further, Krohn failed multiple field sobriety tests; registered as having a

blood alcohol content of 0.21 on a portable breath test; and had an odor of an “alcoholic

type beverage” on his breath, watery and bloodshot eyes, a flushed face, slurred and

mumbled speech, and poor hand coordination. Given this ample evidence of Krohn’s

intoxication and the undisputed facts that Krohn was operating a motor vehicle and

caused serious bodily injury, we conclude that the trial court did not abuse its discretion

in declining to find that Krohn’s plea was a mitigating factor.

                     II. Nature of Offense and Character of Offender

       Next, Krohn argues that his sentence was inappropriate in light of the nature of his

offense and his character. Under Indiana Appellate Rule 7(B), this court may revise a

sentence authorized by statute if, after due consideration of the trial court’s decision, the

court finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006).

Although this court is not required to use “great restraint,” we nevertheless exercise

deference to a trial court’s sentencing decision, both because Appellate Rule 7(B)

requires that we give “due consideration” to that decision and because we recognize the

unique perspective a trial court has when making decisions. Stewart v. State, 866 N.E.2d

858, 865-66 (Ind. Ct. App. 2007). The “principal role of appellate review should be to

                                             9
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).

       A Class D felony carries a sentence ranging of six months to three years, with an

advisory sentence of one and one-half years. Because the trial court sentenced Krohn to

three years, he received the maximum sentence possible for a Class D felony.

       In regards to the nature of Krohn’s offense, he again argues that the trial court did

not identify any particular circumstances of his offense that made it more egregious than

other cases of operating a vehicle while intoxicated causing bodily injury. He claims that

his offense was “standard” and did not justify the maximum sentence for a Class D

felony. (Appellant’s Br. p. 7). We disagree. Pursuant to I.C. § 9-30-5-4, a person may

be convicted for causing serious bodily injury while operating a vehicle if that person has

an alcohol concentration of 0.08 grams of alcohol per 210 liters of the person’s breath.

When the police officers administered a portable breath test to Krohn, they found that he

had a blood alcohol content of 0.21, over two times the legal limit.

       Further, Krohn’s offense had broad repercussions. As a result of Krohn’s actions,

Goodwin and his family have suffered “[i]ndescribable” mental anguish. (Tr. p. 24).

Goodwin has trouble sleeping because he has to sleep in a recliner rather than his bed,

due to the ileostomy bag, and has to get up three or four times a night to drain the bag.

During the day, he has to deal with leaks from the bag, which are embarrassing and

which he can never predict. In addition, Goodwin’s wife testified that he suffers from

                                            10
night terrors concerning the accident, as well as problems with his back and stomach.

Goodwin no longer has stomach muscles and requires help to get in and out of his

recliner. At the time of the sentencing hearing, Goodwin still required an additional

surgery. His wife testified that, even if doctors are able to remove his ileostomy bag

during this surgery, he will still have to live with significant scarring on his chest, neck,

and abdomen for the rest of his life. Accordingly, we cannot conclude that the nature of

Krohn’s offense was “standard” and justifies a lower sentence.

       Finally, Krohn argues that his guilty plea and lack of criminal history illustrate his

good character. We find little merit in this argument because, as we stated above,

Krohn’s decision to plead guilty was merely pragmatic in light of the overwhelming

evidence against him. In addition, Krohn was previously convicted of one misdemeanor

offense, also related to alcohol. We do agree with Krohn that, other than his previous

misdemeanor offense, his lack of a criminal history supports his character. However, any

merit we find in his character is overshadowed by the nature of his offense. Accordingly,

we decline to find that his sentence was inappropriate in light of the nature of his offense

and his character.

                                      CONCLUSION

       Based on the foregoing, we conclude that (1) the trial court did not abuse its

discretion in identifying aggravating and mitigating factors; and (2) the trial court’s

sentence was proper in light of the nature of Krohn’s offense and his character.

       Affirmed.

                                             11
BAILEY, J. and CRONE, J. concur




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