MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                  Feb 10 2015, 10:36 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kristina J. Jacobucci                                     Gregory F. Zoeller
Newby, Lewis, Kaminski & Jones, LLP                       Attorney General of Indiana
La Porte, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Thomas Drnek,                                            February 10, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1406-CR-206
        v.                                               Appeal from the La Porte Circuit
                                                         Court
                                                         Honorable Thomas J. Alevizos,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       Cause No. 46C01-1211-FB-528




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 1 of 10
[1]   Thomas Drnek appeals the sentence he received following his conviction of

      operating a vehicle while intoxicated causing death, a class B felony.1 Drnek

      presents the following restated issues for review:

          1. Did the trial court abuse its discretion in finding and evaluating
             aggravating and mitigating factors?
          2. Is Drnek’s sentence inappropriate in light of the nature of the offense and
             his character?

[2]   We affirm.

[3]   In the early morning hours of November 1, 2012, Drnek, while operating a

      vehicle, was involved in a wreck that killed his friend, Jacob Anderson. Tests

      revealed that at the time, Drnek’s blood-alcohol content exceeded .15. The

      alcohol in his system was a major contributing factor to the accident. Drnek

      was charged with operating a vehicle while intoxicated causing death, a class B

      felony, and operating a vehicle while intoxicated in a manner that endangered

      another person, a class A misdemeanor. Drnek pleaded guilty to the class B

      felony offense in exchange for the State’s agreement that the executed sentence

      would be capped at ten years. Following a sentencing hearing, the trial court

      sentenced Drnek to ten years, all executed.




      1
        The version of the governing statute, i.e., Ind. Code Ann. § 9-30-5-5(b)(1) (West, Westlaw 2013) in effect at
      the time this offense was committed classified it as a class B felony. This statute has since been revised and in
      its current form reclassifies this as a Level 4 felony. See I.C. § 9-30-5-5(b)(1) (West, Westlaw current with all
      2014 Public Laws of the Second Regular Session and Second Regular Technical Session of the 118th General
      Assembly). The new classification, however, applies only to offenses committed on or after July 1, 2014. See
      id. Because this offense was committed before that date, it retains the former classification.



      Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015             Page 2 of 10
                                                        1.

[4]   Drnek first contends the trial court erred in evaluating aggravating and

      mitigating circumstances. We begin with his claim that the trial court erred in

      considering “a single non-violent misdemeanor as an aggravating factor, and

      failed to attach any significant weight to the relevant mitigators.” Appellant’s

      Brief at 5. The factor to which he alludes was described on the presentence

      investigation report (PSI) as a class C misdemeanor charge of failing to

      surrender his suspended driver’s license. Drnek complains that such was not a

      proper aggravator because it was a relatively minor offense, and because he was

      not even aware at the time that his license had been suspended. We believe

      Drnek mischaracterizes the nature of the aggravating circumstance found by the

      trial court.

[5]   It is true that the PSI included this charge. At the sentencing hearing, however,

      Drnek admitted that on May 1, 2013, he was cited for speeding. He did not pay

      that ticket and therefore his license was suspended. On September 24, 2013, he

      was cited for driving while suspended. On October 8, he was again cited for

      driving while suspended. The next day, he was charged with failing to

      surrender a suspended license. In November 2013, he was once again caught

      driving while suspended. Although these offenses were not reflected in the PSI,

      the court noted that he had admitted them on the record and therefore that they

      could properly be considered.




      Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 3 of 10
[6]   When setting out the aggravating and mitigating circumstances at sentencing,

      the trial court described this aggravator as follows: “And there is an aggravator.

      And that aggravator is that he continued to violate the law subsequent to his

      arrest here [.]” Transcript at 56. Other comments by the trial court clearly

      reflect that it referred not only to the “single non-violent misdemeanor”

      identified on the PSI, and to which Drnek alludes, Appellant’s Brief at 5, but also

      to the three citations for driving on a suspended license that occurred after the

      fatal accident.2 Moreover, we note Drnek’s contention that this “single” offense

      was unrelated to the present offense and therefore may not properly be

      considered. We cannot agree that these offenses are entirely unrelated to

      Drnek’s offense of driving while intoxicated causing death.                    The trial court did

      not err in citing this as an aggravating factor.

[7]   Drnek next contends that the trial court erred in failing to cite certain proffered

      mitigators. An allegation that the trial court failed to find a mitigating factor

      requires the defendant to establish that the mitigating evidence in question is

      not only supported by the record but also that the evidence is significant.

      Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007), opinion on reh’g. A trial court is

      not obligated to accept the defendant’s contentions as to what constitutes a

      mitigating circumstance. Wilkes v. State, 917 N.E.2d 675 (Ind. 2009). Nor is it

      required to explain why it chose not to make a finding of mitigation. Felder v.

      State, 870 N.E.2d 554 (Ind. Ct. App. 2007). Further, a trial court does not abuse


      2
       When asked at the hearing why these offenses were not included on the PSI, someone from the Probation
      Department explained, “We don’t run driving records on the PSI.” Transcript at 55.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015     Page 4 of 10
      its discretion in failing to find a mitigating factor that is highly disputable in

      nature, weight, or significance. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App.

      2007), trans. denied.


[8]   At the hearing, Drnek presented evidence that he is HIV positive and, at the

      time of the underlying offense, he was receiving ongoing medical services from

      Aliveness Project of Northwest Indiana. Citing Moyer v. State, 796 N.E.2d 309

      (Ind. Ct. App. 2003), he contends the trial court erred in failing to find this as a

      mitigating factor at sentencing. In Moyer, our Supreme Court held that the

      defendant’s illness was a significant mitigating circumstance because, among other

      things, he “testified at length about the medical hardships that he would endure if

      incarcerated.” Id. at 314.

[9]   Michael Hughes, a lead care coordinator for Aliveness Project of Northwest

      Indiana, testified at Drnek’s sentencing hearing in general terms about the

      treatment Drnek was receiving from Aliveness Project of Northwest Indiana as

      a result of his medical condition. He also testified about substance-abuse

      treatment that Drnek received there. In his final argument, Drnek’s counsel did

      not argue that Drnek’s medical condition was a mitigating factor. Thus, the

      State’s contention on appeal that Drnek failed to argue this as a mitigator is not

      entirely groundless. To the extent that it was argued, however, we note that

      Hughes was questioned about whether such treatment was available for persons

      incarcerated in the DOC system, and if so, whether there was a difference in the

      level and quality of treatment for those in the DOC versus those not in the

      DOC. That discussion was as follows:

      Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 5 of 10
               Q. Do you have any familiarity as to the expertise, or shall I say
               track record, of the Department of Correction in treating inmates who
               have this disease?


               A. I’ve been to Westville. I’ve been to ISP. Usually we get a
               referral call. The system is set up with DOC. They contact our SVH
               and produce the release of information. It is then final to the particular
               care site in that region. We have to schedule an intake to go out and
               meet with that particular incarcerated person before they are
               discharged – they are released. So we can start things when they have
               – when they get out. They will have some services that they know
               they are coming into.


               Q. Let me stop you there. What about while they are in there? Do
               they receive the same quality of care that they would in –


               A. No, they do not. And I have asked in this – because it comes up
               in the point of the intake. Tell me about how – how was your medical
               treatment? It’s just as – one is that. Some receive care. I wouldn’t say
               it would be substandard, but it’s certainly not what they’re capable of
               getting being outside.


               Q. Is it your opinion that there is a real and significant difference
               between the treatment that Mr. Drnek would receive outside of the
               DOC versus what he would receive within the DOC?


               A. Depending on if he was sent – if he were within the DOC system,
               depending on where he was sent, I’ve seen mixed results.


       Transcript at 11-12.


[10]   As indicated above, in Moyer, the defendant testified at length about the medical

       hardships he would endure if he were incarcerated. For instance, the record

       reflected that the defendant’s illness required “constant medical attention” and


       Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 6 of 10
       “frequent tracheal cleanings and sterile catheters, which the jail [could not] provide

       regularly.” Moyer v. State, 769 N.E.2d at 314. Our review of the record reveals

       that Drnek did not provide such evidence. Even Hughes’s testimony about the

       difference between the treatment Drnek would receive in and out of prison was

       equivocal. Therefore, Drnek failed to conclusively establish that treatment for

       his medical condition was unavailable within the DOC system, or even that it

       would be qualitatively different than what he could receive outside of the DOC.

       As a result, the trial court did not err in failing to find this as a mitigating

       circumstance.

[11]   Drnek also contends that “the trial court failed to consider that the circumstances of

       the crime are unlikely to recur and that [his] character and attitude indicate that he is

       unlikely to commit another offense.” Appellant’s Brief at 10. The State contends

       that Drnek waived these errors because he did not mention them to the trial court at

       the sentencing hearing. We agree. Banks v. State, 841 N.E.2d 654 (Ind. Ct. App.

       2006), trans. denied.

[12]   Even were they not waived however, the trial court was not required to consider

       them because their significance is disputable. Drnek acknowledged at the

       sentencing hearing that he continued to drink after the accident, and also

       acknowledged that he continued to drive his vehicle even after his license was

       suspended. Under these circumstances, the trial court was not compelled to find

       that he was unlikely to commit another such offense.

                                                         2.


       Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 7 of 10
[13]   Drnek contends that his sentence is inappropriate in light of the nature of his

       offense and his character. Article 7, section 4 of the Indiana Constitution grants

       our Supreme Court the power to review and revise criminal sentences. See

       Knapp v. State, 9 N.E.3d 1274 (Ind. 2014), cert. denied, 2015 WL 133288 (Jan.

       12, 2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized

       this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.

       2008). Per Indiana Appellate Rule 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

       “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Drnek bears the

       burden on appeal of persuading us that his sentence is inappropriate. Conley v.

       State, 972 N.E.2d 864.


[14]   The determination of whether we regard a sentence as appropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d at 1224). Moreover, “[t]he principal role of such review is to

       attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013). It is not our goal in this endeavor to achieve the perceived “correct”

       sentence in each case. Knapp v. State, 9 N.E.3d 1274. Accordingly, “the

       question under Appellate Rule 7(B) is not whether another sentence is more

       Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 8 of 10
       appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)

       (emphasis in original). Our Supreme Court has indicated that when analyzing

       the appropriateness of a criminal sentence, there is “no right answer ... in any

       given case.” Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (quoting Cardwell v. State,

       895 N.E.2d at 1224). Rather, appellate review and, where appropriate, revision

       “ultimately boils down to the appellate court’s ‘collective sense of what is

       appropriate, not a product of a deductive reasoning process.’” Id. (quoting

       Cardwell v. State, 895 N.E.2d at 1225). Ultimately, we “focus on the forest—the

       aggregate sentence—rather than the trees—consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Id.


[15]   In order to assess the appropriateness of a sentence, we first look to the

       statutory ranges established for the classification of the relevant offenses. Drnek

       was convicted of a class B felony – operating a vehicle while intoxicated

       causing death. The advisory sentence for a class B felony is ten years, with the

       minimum and maximum sentence being six and twenty years, respectively. See

       Ind. Code Ann. § 35-50-2-5 (West, Westlaw 2013). Drnek was sentenced to the

       advisory term, i.e., ten years.

[16]   The evidence reveals that Drnek has been aware since at least 2009 that he has

       a substance-abuse problem. On the night in question, Drnek consumed so

       much alcohol that his BAC registered well above the legal limit. He then drove

       with another person as a passenger and wrecked the vehicle, causing that

       person’s death. The victim was a friend. Yet, Drnek continued to drink

       Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 9 of 10
       alcohol after the date of the accident and then subsequently continued to drive

       while his license was suspended. These circumstances do not reflect positively

       on his character. Indeed, the trial court could reasonably have concluded that

       Drnek poses some risk of reoffending. Accordingly, the advisory ten-year

       sentence imposed by the trial court was not inappropriate.

[17]   Judgment affirmed.




       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015   Page 10 of 10
