Nick Adams v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Dec 30 2015, 6:19 am
this 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
Kimmerly A. Klee Gregory F. Zoeller
Greenwood, Indiana Attorney General of Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nick Adams, December 30, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1506-CR-535
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jeffrey Marchal,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G06-1502-F5-6560
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Nick Adams was convicted of operating a vehicle while
privileges are forfeited for life, a Level 5 felony. The trial court sentenced him
to four years executed in the Department of Correction. Adams appeals,
raising the sole issue of whether his sentence is inappropriate in light of the
nature of the offense and his character. Concluding Adams’ sentence is not
inappropriate, we affirm.
Facts and Procedural History
[2] On February 23, 2015, Jeremy Heidrich was driving in Indianapolis,
northbound on I-65, when he observed a burgundy Ford Taurus traveling at a
high rate of speed in the same direction. As the Taurus approached a curve, the
driver of the Taurus lost control of the car and struck the rear end of a red
Chevy pickup truck driven by Ed Woods. The impact caused the pickup truck
to spin out and hit the retaining wall.
[3] The Taurus did not stop and continued northbound away from the accident.
Heidrich followed the Taurus and eventually pulled alongside it. Heidrich
yelled for the driver of the Taurus to pull over and attempted to photograph the
driver. The male driver noticed Heidrich’s attempt and obscured his face, but
Heidrich was still able to photograph the car and its license plate. Eventually,
the Taurus exited on the Washington Street ramp and turned right. Heidrich
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also exited at Washington Street but immediately reentered I-65 to return to the
scene of the accident.
[4] When Heidrich arrived at the scene of the accident, he exited his vehicle to
speak with Woods. A few minutes later, Indiana State Police Trooper Michael
Meinczinger pulled in behind Woods’ pickup truck. After speaking with
Woods, Trooper Meinczinger spoke with Heidrich. Heidrich relayed his
observations and showed Trooper Meinczinger the photos of the Taurus.
Trooper Meinczinger ran the license plate number and discovered the Taurus
was registered to Theresa Russell. During their conversation, roughly fifteen
minutes after the accident, the Taurus pulled in behind Trooper Meinczinger’s
patrol car. An elderly woman was driving the Taurus.
[5] Adams exited the Taurus, approached Trooper Meinczinger, and identified the
driver as his mother, Theresa Russell. Adams stated his mother was driving the
Taurus at the time of the accident. Trooper Meinczinger walked over to the
Taurus to speak with Russell. At some point, Adams interrupted their
conversation and admitted he was an habitual traffic violator.
[6] Trooper Meinczinger arrested Adams, and the State charged Adams with
operating a vehicle while privileges are forfeited for life, a Level 5 felony. A
jury trial was held on May 6, 2015. The jury found Adams guilty as charged,
and the trial court sentenced him to four years executed in the Department of
Correction. This appeal followed.
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Discussion and Decision
I. Standard of Review
[7] Adams contends his sentence is inappropriate in light of the nature of the
offense and his character. He argues the trial court “levied a ‘trial tax’” against
him because the imposed sentence “surpassed the harshest executed sentence
proposed by the State” during plea negotiations. Brief of Appellant at 6-7.1
[8] Indiana Appellate Rule 7(B) provides, “The 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.” Whether we regard a sentence as
inappropriate turns on “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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The
defendant bears the burden of persuading this court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
II. Inappropriate Sentence
[9] As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed. Id.
at 1081. Adams was convicted of operating a vehicle while privileges are
1
Prior to trial, the trial court asked the prosecutor to explain Adams’ “options.” Transcript at 4. In doing so,
the prosecutor recounted the terms of the four different plea offers extended to Adams.
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forfeited for life, a Level 5 felony. A Level 5 felony carries a possible sentence
of one to six years, with an advisory sentence of three years. Ind. Code § 35-50-
2-6(b). Here, the trial court sentenced Adams to four years executed in the
Department of Correction.
[10] We conclude the nature of the offense supports the sentence imposed. In
addition to driving when he was prohibited from doing so, Adams caused an
accident, fled the scene of the accident, and attempted to evade prosecution by
shifting the blame to his mother, who was undergoing treatment for cancer. See
Tr. at 115.
[11] As to Adams’ character, his criminal history includes ten felony and nine
misdemeanor convictions as an adult, as well as five true findings as a juvenile.
He has prior felony convictions for operating a vehicle while privileges are
forfeited for life, operating a vehicle while suspended as an habitual traffic
violator, and operating a vehicle while intoxicated. Adams’ Bureau of Motor
Vehicles Record reveals his driver’s license has been suspended thirty-five times
since 1990. See Appellant’s Appendix at 16-22. In short, Adams has repeatedly
demonstrated he cannot operate a vehicle safely and in compliance with the
law, but he continues to drive and endanger the public.
[12] Both the nature of the offense and Adams’ character support the sentence
imposed by the trial court. And the fact that Adams may have received a
shorter sentence had he pleaded guilty does not show the trial court penalized
Adams for going to trial. See Pauley v. State, 668 N.E.2d 1212, 1213 (Ind. 1996)
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(noting leniency in sentencing is a constitutionally permissible incentive for a
defendant to enter a plea agreement). To the extent Adams argues the trial
court imposed a harsher sentence because he exercised his right to a jury trial,
we find no support for this contention in the record. See Corcoran v. State, 739
N.E.2d 649, 654 (Ind. 2000) (requiring a specific showing that a sentence was
improperly influenced by a defendant’s exercise of his right to a jury trial).
Conclusion
[13] Adams’ sentence is not inappropriate in light of the nature of the offense and
his character. We therefore affirm his sentence of four years executed in the
Department of Correction.
[14] Affirmed.
Barnes, J., and Altice, J., concur.
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