Reis v. State

88 N.E.3d 1099

Jonathon D. REIS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 65A01–1707–CR–1563

Court of Appeals of Indiana.

FILED December 11, 2017

Attorney for Appellant : William W. Gooden, Mt. Vernon, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issue

[1] Following a guilty plea, Jonathon Reis was convicted of operating a motor vehicle while privileges are forfeited for life, a Level 5 felony, and operating a vehicle while intoxicated endangering a person, a Class A misdemeanor. Reis was sentenced to a term of five years for the Level 5 felony to be executed at the Indiana Department of Correction and a consecutive term of one year for the Class A misdemeanor to be served in a community corrections program. He now appeals, raising for our review the sole issue of whether his sentence is inappropriate in light of his character and the nature of his offense. Concluding his sentence is not inappropriate, we affirm.

Facts and Procedural History

[2] Early in the morning on February 19, 2017, police officers found a white Chevrolet SUV on Highway 62 in Posey County. The SUV was running, in drive, and facing south blocking both westbound lanes of traffic. Officers attempted to wake the driver, later identified as Reis, to no avail. Reis lifted his foot off the brake and the vehicle rolled into a guardrail. Once the vehicle came to a stop, officers unlocked the vehicle, shut it off, and again attempted to wake Reis. While doing so, officers observed a nearly empty bottle of vodka on the passenger floorboard. When officers were finally able to wake Reis, they removed him from the vehicle. Reis's balance was "very unsteady," he smelled of alcoholic beverages, and he repeatedly replied, "mother fu****" to officers' questions. Appellant's Appendix, Volume II at 13.

[3] Officers learned Reis's driver's license was suspended for life as an habitual traffic offender and he was administered a portable breath test, which revealed a blood alcohol content ("BAC") of .21. Reis acknowledged his license was suspended and when asked why he was an habitual traffic offender he responded, "same sh**." Id. At the jail, Reis refused to take the breathalyzer but agreed to another portable breath test, which again revealed a BAC of .21. Reis stated that he wished he was still in the beer phase of his life but he drank vodka.

[4] The State charged Reis with operating a motor vehicle while privileges are forfeited for life, a Level 5 felony, and operating a vehicle while intoxicated endangering a person, a Class A misdemeanor. Reis pleaded guilty as charged.

[5] At sentencing, the trial court placed a "great deal of weight" on the defendant's prior criminal record which includes seventeen prior convictions. Transcript, Volume 2 at 31. The trial court also noted Reis's "terrible alcohol problem" and that the circumstances of his offenses were "egregious" before sentencing Reis to five years in the Indiana Department of Correction and one year in a community corrections program. Id. at 32–33. Reis now appeals his sentence.

Discussion and Decision

I. Standard of Review

[6] We may review and revise criminal sentences pursuant to the authority derived from Article 7, Section 6 of the Indiana Constitution. Indiana Appellate Rule 7(B) empowers us to 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." Because a trial court's judgment "should receive considerable deference[,]" our principal role is to "leaven the outliers." Cardwell v. State, 895 N.E.2d 1219, 1222–25 (Ind. 2008). "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 to persuade this court that his or her sentence is inappropriate, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may look to any factors appearing in the record for such a determination, Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied.

II. Inappropriate Sentence

A. Indiana Appellate Rule 7(B)

[7] Reis argues his sentence is inappropriate in light of his character. Regarding the nature of the offense Reis concedes, "The trial court correctly found that the nature of the offense in this case was egregious. The defendant agrees with that assessment." Brief of Appellant at 11. The State argues that because Reis does not put forth an argument regarding the nature of the offense, he therefore waives review of the inappropriateness of his sentence, relying upon the recent decision from a panel of this court in Sanders v. State, 71 N.E.3d 839 (Ind. Ct. App. 2017), trans. denied. There, the court explained:

Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is "inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B) (emphasis added). That language is clear: Rule 7(B) plainly requires, as this court has long acknowledged, "the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character." Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) [.] Because [defendant] has failed to present any authority or analysis on the issue of the nature of his offenses, he has waived our review of the inappropriateness of his sentence.

Id. at 843–44 (some citations omitted).

[8] However, our jurisprudence on this issue is far from settled and we respectfully disagree with Sanders' interpretation of Rule 7(B). Just one year ago, faced with a similar waiver argument in Connor v. State, 58 N.E.3d 215 (Ind. Ct. App. 2016), we wrote:

In fact, our courts have frequently treated the two prongs as separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate. See, e.g., Eckelbarger v. State, 51 N.E.3d 169, 170–71 (Ind. 2016) (revising defendant's sentence from thirty-two years to sixteen years upon finding the nature of his offenses—drug offenses facilitated by a State informant—did not warrant consecutive sentences, without also discussing whether his character warranted revision); Isom v. State, 31 N.E.3d 469, 494 (Ind. 2015) (noting "[t]he character of the offender, rather than the nature of the offense, presents [defendant's] strongest support for revision [,]" but ultimately declining to revise the sentence because the nature of the offenses "far outweigh his otherwise favorable character"), cert. denied,––– U.S. ––––, 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016) ; Rice v. State, 6 N.E.3d 940, 947 (Ind. 2014) (stating, in declining to revise defendant's sentence, "[w]e are thus not convinced that either the nature of the offense or the character of the offender warrants a revision") (emphasis added); Cardwell, 895 N.E.2d at 1226 (revising defendant's sentence without considering the nature of the defendant's character because "the record contains a number of inconclusive factors on which the trial court made no findings"); Schaaf v. State, 54 N.E.3d 1041, 1044 (Ind. Ct. App. 2016) (revising a sentence upon finding that although the defendant's criminal history was significant and would make a below-advisory sentence too lenient, the nature of his "relatively minor" offenses rendered his above-advisory sentences too harsh); Norris v. State, 27 N.E.3d 333, 336 (Ind. Ct. App. 2015) (acknowledging defendant's criminal history but revising sentence as inappropriate due to "the relatively innocuous nature of this offense"); Williams v. State, 891 N.E.2d 621, 633–35 (Ind. Ct. App. 2008) (revising defendant's sentence on the basis of the nature of his offense even though defendant did not make an argument regarding his sentence in light of his character); Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007) (revising defendant's sentence "[a]fter due consideration of [his] minimal criminal history, probation violations, and guilty plea," which are all factors weighing on defendant's character).

Id. at 218–19 (footnotes omitted). We concluded that although Rule 7(B) states we may revise a sentence we find to be inappropriate "in light of the nature of the offense and the character of the offender," (emphasis added), we view the wording of the rule as a statement requiring us to consider both prongs in our assessment, "and not as a requirement that the defendant must necessarily prove each of those prongs render his sentence inappropriate." Id. at 219.

[9] Notably, after Connor was decided and one month before Sanders was handed down, our supreme court reviewed a defendant's contention that his sentence was inappropriate based solely on his character in Shoun v. State, 67 N.E.3d 635 (Ind. 2017). There, the defendant did "not dispute the severe nature of the crime and focuse[d] his argument on his character—that is, his alleged intellectual disability as evidenced by his low IQ and his ‘compromised psychological state.’ " Id. at 642. Rather than deem the defendant's Rule 7(B) argument waived, our supreme court concluded that the defendant's "arguments that his character makes his ... sentence inappropriate are not persuasive." Id.

[10] Contrary to the "clear" reading of Rule 7(B) Sanders purports, panels of this court have continued to interpret Rule 7(B) consistently with Connor. In McFall v. State, 71 N.E.3d 383 (Ind. Ct. App. 2017), a panel of this court found the defendant's sentence inappropriate based solely upon considerations of the defendant's character. Regarding the...