MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be                                            Aug 20 2019, 5:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                                         CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
the defense of res judicata, collateral                                               and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Craig V. Braje                                           Curtis T. Hill, Jr.
Rachel E. Doty                                           Attorney General
Braje, Nelson & Janes, LLP
Michigan City, Indiana                                   Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Tron Gorbonosenko,                                       August 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-102
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael S.
Appellee-Plaintiff                                       Bergerson, Judge
                                                         Cause No.
                                                         46D01-1710-F4-990



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                    Page 1 of 22
                                                 Case Summary
[1]   Tron Gorbonosenko appeals his convictions and sentence for two counts of

      level 5 felony reckless homicide. He asserts that his convictions must be

      reversed because they are unsupported by sufficient evidence. He also contends

      that the trial court abused its discretion in sentencing him by failing to consider

      certain mitigating factors, finding improper aggravating factors, failing to

      support the imposition of consecutive sentences with a detailed sentencing

      statement, and relying on speculative facts. We conclude that Gorbonosenko’s

      convictions are supported by sufficient evidence and that the trial court

      committed no error in sentencing him. Therefore, we affirm.


                                    Facts and Procedural History
[2]   The facts most favorable to the jury’s verdict 1 show that on the evening of

      October 6, 2017, Gorbonosenko drove his black Ford Mustang to a martial arts

      studio to watch his children perform. Robin Burian was parked across the

      street from the martial arts studio when he noticed Gorbonosenko’s Mustang

      attempt to turn into the entrance of the studio parking lot, turn wide, and drive

      over the curb and sidewalk. Burian continued watching the Mustang as it

      unsuccessfully attempted to pull into a parking space. On its second attempt to

      pull into the space, the Mustang scraped the car parked in the adjoining space.

      The Mustang then pulled too far into the parking space, drove over the parking



      1
        Gorbonosenko fails to set forth the facts in his appellant’s brief in accordance with the applicable appellate
      standard of review as required by Indiana Appellate Rule 46(A)(6)(b).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                       Page 2 of 22
      block, and came to a rest against a telephone pole. Burian saw Gorbonosenko

      exit his vehicle and walk toward the studio. Burian also exited his vehicle and

      walked over to the Mustang to see whether the car next to it was damaged.

      Burian observed that the car had a six- to eight-inch scratch where the Mustang

      had scraped it.


[3]   Burian was worried that Gorbonosenko might be intoxicated, so Burian walked

      over to Gorbonosenko, who was standing outside the martial arts studio.

      Burian stood next to Gorbonosenko a short time, smelled alcohol on

      Gorbonosenko’s breath, and noticed that Gorbonosenko was leaning back and

      forth. Burian returned to his vehicle and called 911. Meanwhile,

      Gorbonosenko entered the martial arts studio and sat between his wife, who

      had driven separately, and Beth McCoy. McCoy noticed that Gorbonosenko

      smelled like liquor. 2


[4]   At about 6:17 p.m., La Porte City Police Sergeant Patrick Sightes, Corporal

      Daniel Reed, and Officer Robert Hagler arrived at the martial arts studio in

      response to Burian’s 911 call. Sergeant Sightes and Corporal Reed approached

      the black Mustang while Officer Hagler ran the Mustang’s plates to identify its

      owner. The officers learned that the Mustang was registered to Gorbonosenko.

      Tr. Vol. 3 at 127. Corporal Reed knew Gorbonosenko because Gorbonosenko




      2
        Gorbonosenko inaccurately claims that “[McCoy] stated that Gorbonosenko displayed no difficulty in
      walking to or from the studio.” Appellant’s Br. at 8 (citing Tr. Vol 3 at 220). McCoy testified only that she
      did not notice whether Gorbonosenko had any trouble walking by her to sit down and that he did not have
      any trouble walking out of the studio. Tr. Vol. 3 at 220.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                    Page 3 of 22
      was a LaPorte paramedic or EMT who had responded a few times when

      Corporal Reed’s father was sick. Id. at 128. The three officers walked to the

      martial arts studio and looked in the window to find Gorbonosenko. Corporal

      Reed pointed to Gorbonosenko, who was sitting with his back to the window.

      Id. at 129-30. Sergeant Sightes tapped on the window, which prompted

      Gorbonosenko to turn around. Gorbonosenko made eye contact with Sergeant

      Sightes, who motioned for Gorbonosenko to come outside. Id. at 130-31. At

      about 6:20 p.m., McCoy heard a tap on the window behind her and saw a

      police officer motion to Gorbonosenko to come outside. After Gorbonosenko

      left, McCoy said to her husband, “[T]here’s [alcohol] on board with [that] one.”

      Id. at 212.


[5]   When Gorbonosenko came outside, Sergeant Sightes met him at the door and

      told him that the officers needed to talk to him about his car. Id. at 131.

      Sergeant Sightes had no further conversation with Gorbonosenko. Id.

      Gorbonosenko and the officers walked to his car, and Gorbonosenko’s wife

      soon joined them. Officer Hagler asked Gorbonosenko for his license and

      registration and whether he had been drinking or taking medications that would

      impair his ability to drive. Gorbonosenko answered, “No.” Id. at 184. The

      officers did not give Gorbonosenko a portable breath test, breathalyzer, or

      standardized field sobriety test to determine if he was intoxicated. Id. at 132,

      157, 185. They looked in Gorbonosenko’s car from the outside but did not

      search it. Id. at 132, 159, 186-87. None of the officers spoke to Burian or




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 4 of 22
      McCoy. 3 Id. at 133, 159, 185. Corporal Reed mostly spoke with

      Gorbonosenko’s wife. Id. at 159. The officers did not prepare any

      documentation to memorialize the incident. Id. at 133, 159, 187. Officer

      Hagler spoke with the owner of the car that had been scraped by the Mustang

      and informed her that “due to the minimal damage” and the fact that

      Gorbonosenko did not “show any signs of impairment” the police did not have

      to do a report. Id. at 186. The officers left the scene at 6:30 p.m., about thirteen

      minutes after they arrived. 4 Id. at 134.


[6]   About an hour after the officers left the martial arts studio, Gorbonosenko

      crashed his Mustang directly into Donald and Amanda Kaczmarek’s minivan

      near the intersection of U.S. Highway 20 and Bootjack Road, killing them both

      instantly. Id. at 134. 5 Erica Schascheck had been driving westbound on

      Highway 20 somewhere behind the minivan and saw the minivan rise into the

      air and fall back down. Schascheck pulled over and called 911. The vehicles

      had come to rest in the westbound lane of Highway 20, straddling the fog line

      on the shoulder of the road. Ex. 16. Both cars had extensive front end damage.

      The cars were aligned headlamp to headlamp, which indicated that they had

      struck each other head on and had come to a stop almost immediately. Tr. Vol.




      3
       Gorbonosenko inaccurately claims that the “officers interviewed the 911 caller at the studio.” Appellant’s
      Br. at 7.
      4
          Officer Hagler testified that he was at the scene only seven minutes. Tr. Vol. 3 at 187.
      5
        Officer Sightes testified that he found out that Gorbonosenko “had been in a fatal crash about an hour
      later.” Tr. Vol. 3 at 134.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                   Page 5 of 22
      5 at 188-89. The records obtained from the Mustang’s power train control

      module showed that the Mustang had been traveling between fifty-five and

      sixty-one miles per hour during the twenty-five seconds prior to the crash and

      that Gorbonosenko had not applied the brakes before the accident. Id. at 221-

      22.


[7]   Police officers and ambulances arrived at the accident scene. Captain Pat

      Cicero approached Gorbonosenko and smelled the odor of alcohol coming

      from him. Tr. Vol. 4 at 82. Detective Michael Raymer found two 200-milliliter

      bottles of whiskey in Gorbonosenko’s car, an empty one on the passenger-side

      floor and a partially empty one between the driver’s seat and the center console.

      Id. at 222-23. The paramedic who performed the initial assessment of

      Gorbonosenko did not administer any medications to him. Due to the severity

      of Gorbonosenko’s injuries, he was flown to a hospital. The flight nurse, Heidi

      Wiskotoni, administered Zofran to Gorbonosenko to alleviate his nausea, but

      did not administer any other medications. Wiskotoni smelled the odor of

      alcohol coming from Gorbonosenko, who was semiconscious during the flight.

      Id. at 44.


[8]   At the hospital, Deputy Jon Samuelson immediately smelled alcohol upon

      entering Gorbonosenko’s private room, and as he got closer to Gorbonosenko

      the odor grew stronger. Id. at 161. Deputy Samuelson read Gorbonosenko

      Indiana’s implied consent warning and asked for permission to take a blood

      sample. Id. at 162. Gorbonosenko agreed, but Deputy Samuelson thought

      Gorbonosenko appeared confused and disoriented from the accident and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 6 of 22
       decided to apply for a search warrant. Ultimately, Gorbonosenko’s blood draw

       was performed almost three and a half hours after the accident. Id. at 187.


[9]    The Indiana State Department of Toxicology test results of Gorbonosenko’s

       blood draw showed that his blood alcohol concentration at the time of the

       blood draw was 0.120 plus or minus 0.005 gram per 100 milliliters of whole

       blood. Tr. Vol. 5 at 61. The forensic toxicologist estimated that at the time of

       the accident, Gorbonosenko’s blood alcohol content was likely between 0.153

       and 0.236 gram per 100 milliliters of whole blood. 6 Id. at 84-85, 145. Impaired

       judgment and slowed information processing occur at blood alcohol content

       levels of 0.04 or 0.05. Id. at 66-67. Gorbonosenko’s blood also tested positive

       for Lorazepam, a benzodiazepine with effects similar to those of alcohol. Id. at

       94-95. Lorazepam can increase the effects of alcohol and lead to greater

       intoxication. Id. at 98.


[10]   The State charged Gorbonosenko with two counts of level 4 felony operating

       while intoxicated causing death with a blood alcohol concentration of at least

       0.150 gram of alcohol per 100 milliliters of blood; two counts of level 5 felony

       reckless homicide; and two counts of level 5 felony operating a vehicle while

       intoxicated causing death. A jury found Gorbonosenko not guilty of the level 4

       felonies and guilty of the level 5 felonies. The trial court determined that the




       6
         The forensic toxicologist testified that the lowest blood alcohol content that Gorbonosenko could have had
       at the time of the accident was 0.079, which was based on the assumption that at the time of the accident his
       body had not yet absorbed any of the alcohol that he had consumed. Tr. Vol. 5 at 145-46.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                   Page 7 of 22
       reckless homicide counts and the driving while intoxicated counts were the

       same offense for double jeopardy purposes, merged the latter counts with the

       former counts, and entered judgment of conviction for two counts of reckless

       homicide.


[11]   In sentencing Gorbonosenko, the trial court found no mitigating circumstances

       and four aggravating circumstances: his criminal history; his employment as a

       paramedic in the LaPorte County Emergency Management System; his lack of

       remorse; and that the advisory sentence would depreciate the seriousness of the

       crimes. Appealed Order at 4. The trial court found that the aggravating

       circumstances outweighed the mitigating circumstances and sentenced

       Gorbonosenko to consecutive terms of five and a half years for each reckless

       homicide conviction, executed, for an aggregate term of eleven years. This

       appeal ensued.


                                         Discussion and Decision

            Section 1 – Sufficient evidence supports Gorbonosenko’s
                         reckless homicide convictions.
[12]   Gorbonosenko challenges the sufficiency of the evidence supporting his reckless

       homicide convictions. 7 We note that in violation of our appellate rules,




       7
         Gorbonosenko also argues that the evidence was insufficient to support a conviction for operating a vehicle
       while intoxicated causing death. However, that issue is not ripe for review because judgment of conviction
       was not entered for those counts. See Gilbert v. State, 874 N.E.2d 1015, 1017 n.3 (Ind. Ct. App. 2007)
       (declining to review sufficiency challenge to jury’s guilty verdict on criminal recklessness charge because trial
       court neither entered judgment of conviction nor sentenced Gilbert on that count), trans. denied (2008).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                       Page 8 of 22
       Gorbonosenko failed to provide the standard of review in his sufficiency

       argument. See Ind. Appellate Rule 46(A)(8)(b) (“The argument must include

       for each issue a concise statement of the applicable standard of review.”). In

       reviewing a claim of insufficient evidence, we do not reweigh the evidence or

       judge the credibility of witnesses, and we consider only the evidence that

       supports the judgment and the reasonable inferences arising therefrom. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). It is “not necessary that the evidence

       ‘overcome every reasonable hypothesis of innocence.’” Drane v. State, 867

       N.E.2d 144, 147 (Ind. 2007) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind.

       1995)). “We will affirm if there is substantial evidence of probative value such

       that a reasonable trier of fact could have concluded the defendant was guilty

       beyond a reasonable doubt.” Bailey, 907 N.E.2d at 1005.


[13]   To convict Gorbonosenko of the two counts of reckless homicide as charged,

       the State was required to prove beyond a reasonable doubt that he recklessly

       killed another human being by driving a vehicle while intoxicated and causing a

       crash which killed Donald and Angela Kaczmarek. Appellant’s App. Vol. 2 at

       129-30; Ind. Code § 35-42-1-5. Intoxicated means under the influence of

       alcohol, a drug, or a controlled substance “so that there is an impaired

       condition of thought and action and the loss of normal control of a person’s

       faculties.” Ind. Code § 9-13-2-86. Gorbonosenko contends that there was

       insufficient evidence that he was driving his vehicle while in an intoxicated

       state. Specifically, Gorbonosenko asserts that no blood testing or breath

       analysis was performed on him at the scene of the accident and the forensic


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 9 of 22
       toxicologist testified only to what his blood alcohol content could have been at

       the time of the collision. 8


[14]   The evidence in support of the verdict shows that about an hour and a half

       before the accident, Burian witnessed Gorbonosenko driving and parking

       erratically at the martial arts studio, and both Burian and McCoy detected the

       smell of alcohol emanating from Gorbonosenko. Shortly after the accident

       while still at the scene of the crash, a police officer smelled alcohol coming from

       Gorbonosenko, and during Gorbonosenko’s transport to the hospital, the flight

       nurse also smelled alcohol coming from him. At the scene of the crash, police

       found one empty bottle and one partially empty bottle of whiskey in

       Gorbonosenko’s car. Further, the forensic toxicologist testified that

       Gorbonosenko’s blood alcohol content at the time of the accident was between

       0.152 and 0.236 gram per 100 milliliters. Tr. Vol. 5 at 84-85. From this

       evidence, a reasonable factfinder could have concluded beyond a reasonable

       doubt that Gorbonosenko was driving his vehicle while intoxicated.

       Gorbonosenko’s argument is merely a request to reweigh the evidence and




       8
         Gorbonosenko also asserts that “a urinalysis performed on [him] at the hospital within the first hour of his
       arrival returned negative for any tested-for substances.” Appellant’s Br. at 12 (citing Tr. Vol. 5 at 158).
       Gorbonosenko fails to state what the “tested-for substances” were. Our review of the transcript shows that
       his urine was screened for benzodiazepines, including Lorazepam, which his blood tested positive for.
       Gorbonosenko ignores that the forensic toxicologist went on to testify that even if Gorbonosenko had
       Lorazepam in his system when he was brought to the hospital, it was “not surprising that the urine was
       negative” for Lorazepam because Lorazepam is not completely reactive to the enzymatic test that hospitals
       use to screen urine. Tr. Vol. 5 at 158-59.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                   Page 10 of 22
       judge witness credibility, which we must decline. Accordingly, we affirm

       Gorbonosenko’s convictions for reckless homicide.


            Section 2 – The trial court did not abuse its discretion in
                          sentencing Gorbonosenko.
[15]   Gorbonosenko was convicted of level 5 felony reckless homicide, which has a

       sentencing range of one to six years and an advisory sentence of three years.

       Ind. Code § 35-50-2-6. In sentencing Gorbonosenko, the trial court found no

       mitigating circumstances and four aggravating circumstances:


                   • The criminal history of [Gorbonosenko]; especially with a
                     prior history of operating a motor vehicle under the
                     influence of alcohol as an adult and as a juvenile.


                   • That as a licensed paramedic and as an employee of the
                     LaPorte County Emergency Management System,
                     [Gorbonosenko] misused his position of trust in the public
                     safety community.


                   • That prior to today, [Gorbonosenko] has shown little or no
                     remorse for causing the deaths of Donald and Angela
                     Ka[c]zmarek and only … expressed his remorse when
                     faced with the prospect of being held accountable and
                     being sent to prison.


                   • [That] the Advisory sentence would depreciate the
                     seriousness of the crimes.


       Appealed Order at 4. The trial court found that the aggravating circumstances

       outweighed the mitigating circumstances and sentenced Gorbonosenko to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 11 of 22
       consecutive terms of five and a half years for each reckless homicide conviction,

       executed, for an aggregate term of eleven years.


[16]   Initially, we note that although Gorbonosenko asserts that his sentence is

       inappropriate pursuant to Indiana Appellate Rule 7(B), he does not actually

       undertake a Rule 7(B) analysis. “Failure to put forth a cogent argument acts as

       a waiver of the issue on appeal.” Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind.

       Ct. App. 2006), trans. denied; see also Ind. Appellate Rule 46(A)(8)(a) (“The

       argument must contain the contentions of the appellant on the issues presented,

       supported by cogent reasoning.”). Consequently, Gorbonosenko has waived

       his inappropriateness claim under Appellate Rule 7(B). See McBride v. State, 992

       N.E.2d 912, 920 (Ind. Ct. App. 2013) (concluding that defendant failed to make

       cogent argument regarding nature of crime or his character and therefore

       waived issue), trans. denied.


[17]   Gorbonosenko’s contentions focus on the trial court’s sentencing statement and

       the reasons in support of imposing his sentence. Given the substance of his

       arguments, we will review his sentence for an abuse of discretion. 9 See

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (“So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of

       discretion.”), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if




       9
          Whether a sentence is inappropriate under Appellate Rule 7(B) and whether the trial court abused its
       discretion in sentencing are two separate analyses. Hape v. State, 903 N.E.2d 977, 1000 n.12 (Ind. Ct. App.
       2009), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                  Page 12 of 22
       the decision is clearly against the logic and effect of the facts and circumstances

       before the court or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id. at 491. A trial court abuses its discretion during sentencing by:

       (1) failing to enter a sentencing statement at all; (2) entering a sentencing

       statement that includes aggravating and mitigating factors that are unsupported

       by the record; (3) entering a sentencing statement that omits reasons that are

       clearly supported by the record; or (4) entering a sentencing statement that

       includes reasons that are improper as a matter of law. Id. at 490-91.


         2.1 – The trial court did not abuse its discretion in failing to find mitigating
                                            factors.

[18]   In challenging his sentence, Gorbonosenko first contends that the trial court

       abused its discretion in failing to find mitigating factors. “When a defendant

       offers evidence of mitigators, the trial court has the discretion to determine

       whether the factors are mitigating, and it is not required to explain why it does

       not find the proffered factors to be mitigating.” Johnson v. State, 855 N.E.2d

       1014, 1016 (Ind. Ct. App. 2006), trans. denied (2007). The trial court is not

       obligated to accept the defendant’s arguments as to what constitutes a

       mitigating factor and is not required to give the same weight to proffered

       mitigating factors as the defendant does. Healey v. State, 969 N.E.2d 607, 616

       (Ind. Ct. App. 2012). A defendant who alleges that the trial court failed to

       identify a mitigating factor has the burden to establish that the proffered factor

       is both significant and “clearly supported by the record.” Anglemyer, 868 N.E.2d

       at 493.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 13 of 22
[19]   Gorbonosenko claims that the trial court abused its discretion by failing to find

       five potential mitigating factors: (1) his expression of deep remorse; (2) his

       strong character, generous attitude, and caring personality; (3) his limited

       criminal history; (4) the financial hardship his family would experience as a

       result of his imprisonment, and (5) he is unlikely to reoffend because his injuries

       were so severe that he is unlikely to drive again.


[20]   Turning first to Gorbonosenko’s expression of remorse, the trial court found

       that Gorbonosenko showed little remorse for his offenses and expressed

       remorse only when he faced the prospect of being sent to prison. We observe

       that “a trial court’s determination of a defendant’s remorse is similar to its

       determination of credibility: without evidence of some impermissible

       consideration by the trial court, we accept its decision.” Sandleben v. State, 29

       N.E.3d 126, 136 (Ind. Ct. App. 2015), trans. denied. Thus, the credibility of

       Gorbonosenko’s expression of remorse was within the province of the trial

       court, and we do not judge credibility on appeal. The trial court was free to

       find that Gorbonosenko’s expression of remorse lacked credibility.


[21]   As for Gorbonosenko’s character, he directs us to his wife’s testimony that he

       assisted with accidents while off duty and followed up on the status of people

       that he transported to the hospital. The trial court weighed this evidence and

       concluded that as a licensed paramedic, Gorbonosenko misused his position of

       trust in the public safety community. Because we do not reweigh evidence or

       judge witness credibility on appeal, we conclude that the trial court was well

       within its discretion to reject Gorbonosenko’s character as a mitigating factor.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 14 of 22
[22]   As for Gorbonosenko’s criminal history, he asserts that he led a law-abiding life

       for a long period of time before he committed the current offenses. Although a

       trial court may consider a defendant’s lack of criminal history to be a mitigating

       circumstance, the court is under no obligation to give that circumstance

       significant weight. Townsend v. State, 860 N.E.2d 1268, 1272 (Ind. Ct. App.

       2007), trans. denied. Gorbonosenko has a 1999 conviction for operating a motor

       vehicle while under the influence of alcohol and a 1996 juvenile adjudication

       based on operating a motor vehicle while intoxicated. Although the conviction

       and juvenile adjudication are remote in time, they involve exactly the same

       conduct that underlies the current offenses, which caused the death of two

       people. The trial court did not abuse its discretion in declining to find

       Gorbonosenko’s limited criminal history to be a mitigating factor.


[23]   As for the financial hardship on Gorbonosenko’s family as a result of his

       imprisonment, we note that “[m]any persons convicted of serious crimes have

       one or more children and, absent special circumstances, trial courts are not

       required to find that imprisonment will result in an undue hardship.” Dowdell v.

       State, 720 N.E.2d 1146, 1154 (Ind. 1999). Although Gorbonosenko has two

       children, ages eight and eleven, with his wife, he advanced no special

       circumstances that would result in undue hardship. Thus, we cannot say that

       the trial court abused its discretion in declining to find this proffered mitigator.


[24]   As for the unlikelihood that Gorbonosenko will reoffend, we note that in

       general, this factor may be mitigating when it is based on the defendant’s

       character and attitudes. See Ind. Code § 35-38-1-7.1(b)(8) (providing that trial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 15 of 22
       court may consider as a mitigating factor that a defendant’s character and

       attitudes indicate that the defendant is unlikely to commit another crime).

       Here, Gorbonosenko argues that he is unlikely to reoffend because his serious

       injuries will prevent him from driving. His injuries resulted from his own

       criminal conduct. Accordingly, we find no abuse of discretion here.


       2.2 – The trial court did not abuse its discretion in finding aggravating factors.

[25]   Gorbonosenko challenges all the aggravating factors found by the trial court.

       First, he contends that the trial court’s consideration of his juvenile history as

       an aggravating factor to support an enhanced sentence violated his rights under

       the Sixth Amendment to the United States Constitution, citing Pinkston v. State,

       836 N.E.2d 453 (Ind. Ct. App. 2005), trans. denied (2006). Gorbonosenko’s

       argument ignores our supreme court’s decision in Ryle v. State, 842 N.E.2d 320,

       321-22 (Ind. 2005), cert. denied (2006), in which the court held that juvenile

       adjudications are an exception to the requirement, articulated in Apprendi v. New

       Jersey, 530 U.S. 466, 490 (2000), that all facts used to enhance a sentence over

       the statutory maximum must be found by a jury beyond a reasonable doubt.

       See also Mitchell v. State, 844 N.E.2d 88, 92 (Ind. 2006) (noting that prior juvenile

       adjudications may be considered as a prior conviction for purposes of

       sentencing under Blakley v. Washington, 542 U.S. 296 (2004)). Therefore, the

       trial court properly considered Gorbonosenko’s juvenile record as part of his

       criminal history.


[26]   Second, Gorbonosenko asserts that the trial court erred in finding that as a

       paramedic employed by the LaPorte County Emergency Management System,
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 16 of 22
       he misused his position of trust in the public safety community for two reasons:

       the trial court misinterpreted the plain language of Indiana Code Section 35-38-

       1-7.1(a)(8); and the finding is unsupported by the record. Section 35-38-1-

       7.1(a)(8) provides that the trial court may consider as an aggravating factor that

       the defendant “was in a position having care, custody, or control of the victim

       of the offense.” However, Section 35-38-1-7.1(c) specifically provides that in

       determining sentence, the trial court is not limited by the criteria enumerated in

       Section 35-38-1-7.1(a) and -(b). The trial court’s finding does not appear to be

       based on Section 35-38-1-7.1(a)(8), and the court was free to find other

       aggravating circumstances. Accordingly, Gorbonosenko’s argument that the

       trial court misinterpreted Section 35-38-1-7.1(a)(8) is without merit.


[27]   Equally unavailing is Gorbonosenko’s argument that the finding is unsupported

       by the record. As the State points out, as a paramedic employed by the LaPorte

       County Emergency Management System, Gorbonosenko should have been

       aware of the dangers of driving while intoxicated and was in a key position to

       protect the public from harm. 10 As such, the trial court was within its discretion




       10
          Gorbonosenko asserts that the evidence and testimony at trial was that the three LaPorte City Police
       officers did not know Gorbonosenko in either a personal or official capacity. Appellant’s Br. at 22. This is a
       misrepresentation of the record: Officer Reed knew Gorbonosenko because Gorbonosenko was a LaPorte
       EMT who had responded a few times when Officer Reed’s father was sick. Tr. Vol. 3 at 128. We also note
       that the trial court did not find much of the police officers’ testimony to be credible. In its sentencing order,
       the trial court found that
              these three officers had the temerity to testify under oath before a jury that no tests were
              performed nor was the defendant taken off the street because all three did not detect the odor of
              alcohol so readily apparent to everyone else. Their testimony was an insult to the intelligence
              of the court and to the members of the jury.
       Appealed Order at 3.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019                      Page 17 of 22
       to find that Gorbonosenko’s employment was an aggravating factor. See Collins

       v. State, 643 N.E.2d 375, 382 (Ind. Ct. App. 1994) (concluding that defendant’s

       previous occupation as a former police officer was a valid aggravating factor

       because it demonstrated that he was placed in a position of trust and was

       trained in the law), trans. denied (1995).


[28]   Third, Gorbonosenko argues that the trial court incorrectly interpreted his

       exercise of the privilege against self-incrimination as a lack of remorse in

       support of an enhanced sentence. He asserts that lack of remorse should not be

       considered as an aggravating factor where the expression of remorse is affected

       by the defendant’s assertion of innocence. Gorbonosenko’s argument seems to

       be that because the trial court found that he expressed remorse only when faced

       with the prospect of being sent to prison, the court’s reliance on the timing of

       his expression of remorse was improper. In support of his argument, he cites

       Dockery v. State, 504 N.E.2d 291 (Ind. Ct. App. 1987), which is clearly

       distinguishable. In that case, Dockery was charged with twelve counts of child

       molesting. The Dockery court concluded that the trial court erred in finding lack

       of remorse as an aggravating factor, based on the following reasoning:


               While lack of remorse may be a proper aggravating circumstance
               in some cases, we do not believe it should be considered as a
               factor in the present case. The defendant has the right to protest
               his innocence at all stages of the criminal proceeding including
               sentencing. This is particularly true in instances where the
               evidence of criminal acts comes solely from the victims without
               any corroborating evidence, physical or otherwise.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 18 of 22
               In the present case, the finding of lack of remorse was based
               solely on Dockery’s persistent denial of his guilt. He had never
               made any statements that were inconsistent with this claim of
               innocence. The evidence against him was comprised solely of
               the victims’ testimony and was not corroborated by physical
               evidence, such as medical reports. Under these circumstances,
               the defendant’s continued assertion of his innocence should not
               be used as an aggravating factor under the guise of lack of
               remorse.


       Id. at 297. In contrast to Dockery, we find nothing in the record to persuade us

       that the trial court improperly based its finding of lack of remorse on

       Gorbonosenko’s claim of innocence.


[29]   Finally, Gorbonosenko claims that the trial court improperly enhanced his

       sentence on the basis that the imposition of the advisory sentence would

       depreciate the seriousness of his crimes. To the contrary, our supreme court

       has consistently held that “it is not error to enhance a sentence based upon the

       aggravating circumstance that a sentence less than the enhanced term would

       depreciate the seriousness of the crime committed.” Mathews v. State, 849

       N.E.2d 578, 590 (Ind. 2006); see also Walter v. State, 727 N.E.2d 443, 447 (Ind.

       2000); Huffman v. State, 717 N.E.2d 571, 577 (Ind. 1999); Ector v. State, 639

       N.E.2d 1014, 1016 (Ind. 1994); Evans v. State, 497 N.E.2d 919, 923-24 (Ind.

       1986). We find no error here.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 19 of 22
       2.3 – The trial court did not abuse its discretion by failing to articulate specific
                 reasons for imposing both enhanced and consecutive terms.

[30]   Next, Gorbonosenko contends that the trial court erred by failing to articulate

       specific reasons for imposing both enhanced and consecutive terms. In support

       of this contention, he relies on Fry v. State, 521 N.E.2d 1302 (Ind. 1988).

       However, Fry does not help Gorbonosenko because it was decided before the

       adoption of our advisory sentencing scheme. In Anglemyer, our supreme court

       considered appellate review under the advisory sentencing scheme and held that

       sentencing statements are required whenever a trial court imposes a sentence for

       a felony offense:


               [T]he statement must include a reasonably detailed recitation of
               the trial court’s reasons for imposing a particular sentence. If the
               recitation includes a finding of aggravating or mitigating
               circumstances, then the statement must identify all significant
               mitigating and aggravating circumstances and explain why each
               circumstance has been determined to be mitigating or
               aggravating.


       868 N.E.2d at 490.


[31]   We find no deficiencies in the trial court’s sentencing statement. The trial court

       explained that it found no mitigating factors, identified four aggravating factors,

       and explained why it found those four factors to be aggravating. “The

       imposition of consecutive sentences is a separate and discrete decision from

       sentence enhancement, although both may be dependent upon the same

       aggravating circumstances.” Mathews, 849 N.E.2d at 589. “As with sentence

       enhancement, even a single aggravating circumstance may support the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 20 of 22
       imposition of consecutive sentences.” Id. Here, the four aggravating factors are

       sufficient to support both enhanced and consecutive sentences. See id.

       (concluding that although “depreciation of the seriousness of the crime should

       not be relied upon as a factor to order sentences to be served consecutively,” the

       other two aggravating factors supported consecutive sentences).


             2.4 – Gorbonosenko waived his argument that the trial court erred by
                   sentencing him based on speculative facts not in evidence.

[32]   Last, Gorbonosenko asserts that in imposing sentence, the trial court relied on

       speculative facts not in evidence. At trial, the parties disputed whether, prior to

       the accident, Gorbonosenko had been traveling west on Bootjack Road and

       failed to stop at the stop sign at the intersection with Highway 20 before getting

       on to the highway. Counsel for Gorbonosenko argued that Gorbonosenko had

       been traveling on Highway 20 before the accident and, due to heavy rain, the

       pavement was wet and slick, which caused him to cross the center line and

       strike the Kaczmareks. In its sentencing order, the trial court recited the facts of

       the case, recognizing the dispute as to Gorbonosenko’s path of travel, and

       stated that Gorbonosenko must have taken Bootjack Road and run the stop sign

       before entering Highway 20 and crashing head on into the Kaczmareks’

       minivan. Gorbonosenko argues that his path of travel was not an element of

       the charges or an affirmative defense and the jury did not return a verdict or

       finding on this fact.


[33]   Our review of the sentencing order shows that the trial court clearly set forth

       what it based Gorbonosenko’s sentence on: no mitigating factors and four

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 21 of 22
       aggravating factors, none of which were related to Gorbonosenko’s path of

       travel. Accordingly, there is no indication that the trial court based

       Gorbonosenko’s sentence on what road he drove on. We conclude that any

       error was harmless.


[34]   Based on the foregoing, we affirm Gorbonosenko’s convictions and sentence.


[35]   Affirmed.


       Vaidik, C.J., and Altice, J., concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-102 | August 20, 2019   Page 22 of 22
