William Epperly v. State of Indiana (mem. dec.) ( 2017 )


Menu:
  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                        FILED
    regarded as precedent or cited before any
    Dec 15 2017, 7:42 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                                      CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                           Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Matthew J. Elkin                                        Curtis T. Hill, Jr.
    Kokomo, Indiana                                         Attorney General of Indiana
    Larry D. Allen
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    William Epperly,                                        December 15, 2017
    Appellant-Defendant,                                    Court of Appeals Case No.
    34A05-1704-CR-812
    v.                                              Appeal from the Howard Superior
    Court
    State of Indiana,                                       The Honorable Douglas A. Tate,
    Appellee-Plaintiff.                                     Judge
    Trial Court Cause No.
    34D03-1601-CM-61
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017          Page 1 of 9
    Statement of the Case
    [1]   William Epperly (“Epperly”) appeals his sentence, following his guilty plea to
    Class A misdemeanor operating a vehicle while intoxicated and endangering a
    person1 and Class A misdemeanor leaving the scene of an accident with bodily
    injury.2 The trial court imposed a one-year sentence for each conviction and
    ultimately ordered them to be served concurrently to each other. Epperly
    argues that: (1) the trial court abused its discretion by failing to identify and
    weigh aggravating and mitigating circumstances and by ordering him to serve
    his two sentences consecutively; and that (2) his aggregate one-year sentence is
    “manifestly unreasonable.”
    [2]   We conclude that the trial court did not abuse its discretion because it was not
    required to articulate and balance aggravating and mitigating circumstances
    when imposing a sentence on a misdemeanor conviction. Furthermore, the
    trial court did not impose consecutive sentences; thus, Epperly’s argument that
    it abused its discretion by ordering consecutive sentences is without merit.
    Epperly’s last argument, which we restate as whether his sentence is
    inappropriate, is waived based on Epperly’s lack of cogent argument. Waiver
    notwithstanding, Epperly’s sentence is not inappropriate.
    [3]   We affirm.
    1
    IND. CODE § 9-30-5-2(b).
    2
    I.C. § 9-26-1-1.1.
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 2 of 9
    Issues
    1. Whether the trial court abused its discretion when sentencing
    Epperly.
    2. Whether Epperly’s sentence is inappropriate.
    Facts3
    [4]   In January 2016, Epperly, who had been drinking vodka, drove his truck into a
    car driven by Erin Wetzold (“Wetzold”), injuring her. Epperly left his truck on
    the street and fled the scene on foot. Wetzold and another witness saw Epperly
    walk into a nearby mobile home park. When the police arrived on the scene,
    one of the officers found an empty bottle of vodka on the floor board of
    Epperly’s truck. Another officer went to the mobile home park and found
    Epperly, who smelled of alcohol and refused to take a portable breath test and a
    chemical test. Epperly threatened officers as they handcuffed him. The officers
    took Epperly back to the scene of the collision, and the witness positively
    identified him. As the police transported Epperly to the hospital to have a
    blood draw, he urinated on himself. Once at the hospital, Epperly resisted
    having the blood draw, and the officers had to physically restrain him.
    [5]   Thereafter, the State charged Epperly with Count I, Class A misdemeanor
    operating a vehicle while intoxicated; Count II, Class A misdemeanor resisting
    3
    The record on appeal does not contain a copy of Epperly’s guilty plea transcript. Therefore, the facts
    regarding Epperly’s crimes are taken from the probable cause affidavit. The chronological case summary
    reveals that, during his guilty plea hearing, Epperly stipulated that the probable cause affidavit applied to the
    charges to which he was pleading guilty.
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017               Page 3 of 9
    law enforcement; Count III, Class A misdemeanor leaving the scene of an
    accident with bodily injury; Count IV, Class A infraction operating a motor
    vehicle without financial responsibility; and Count V, habitual substance
    offender.
    [6]   In February 2017, Epperly pled guilty to Class A misdemeanor operating a
    vehicle while intoxicated and endangering a person and Class A misdemeanor
    leaving the scene of an accident with bodily injury, and he admitted that he had
    committed the Class A infraction operating a motor vehicle without financial
    responsibility.4
    [7]   At Epperly’s sentencing hearing, the State read into evidence Wetzold’s victim-
    impact statement. In this statement, Wetzold asserted that Epperly had totaled
    her car, caused her to have “excruciating” pain, and left her with “lifelong
    injuries[,]” including “nerve pain and horrible back pain.” (Tr. Vol. 2 at 6).
    The State argued that Epperly should be sentenced to the maximum time
    allowable based on Epperly having four prior OWIs and having a blood alcohol
    content of .17 at the time of his offenses. The trial court imposed one (1) year
    sentences for each of Epperly’s Class A misdemeanor convictions (Counts I and
    III) and ordered them to be served consecutively at the county jail. However,
    the trial court later amended its sentencing order “to show that Counts I and III
    4
    Prior to Epperly’s guilty plea, the State dismissed the Class A misdemeanor resisting law enforcement
    charge, and it dismissed the habitual substance offender allegation when Epperly pled guilty to the remaining
    charges.
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017           Page 4 of 9
    are to run concurrently.” (App. Vol. 2 at 10). The trial court also imposed a
    fine for Epperly’s infraction and suspended his driver’s license for one year.
    Epperly now appeals.
    Decision
    [8]    On appeal, Epperly contends that: (1) the trial court abused its discretion when
    sentencing him; and (2) his sentence is inappropriate. We will review each
    argument in turn.
    1. Abuse of Discretion
    [9]    Epperly contends that the trial court abused its discretion by failing to identify
    and weigh aggravating and mitigating circumstances and by imposing
    consecutive sentences on his two misdemeanor convictions.
    [10]   As for Epperly’s argument regarding aggravating and mitigating circumstances,
    our Court has repeatedly explained that a trial court is not required to identify
    and weigh aggravating and mitigating circumstances when imposing a sentence
    for misdemeanor convictions. See Stephenson v. State, 
    53 N.E.3d 557
    , 561 (Ind.
    Ct. App. 2016) (citing Creekmore v. State, 
    853 N.E.2d 523
    , 527 (Ind. Ct. App.
    2006), clarified on reh’g) (explaining that a trial court is not required to identify
    and weigh aggravating and mitigating circumstances when imposing a sentence
    for a misdemeanor conviction because misdemeanor sentencing statutes do not
    provide for an advisory sentence but, instead, provide for a maximum allowable
    sentence). Therefore, Epperly’s argument is without merit. See, e.g., 
    Stephenson, 53 N.E.3d at 561
    .
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 5 of 9
    [11]   Equally without merit is Epperly’s consecutive sentencing argument. Here, the
    trial court initially ordered Epperly’s sentences to be served consecutively.
    However, as noted by Epperly in his statement of facts, the trial court thereafter
    amended its sentencing order and clarified that the sentences would be served
    concurrently. Thus, Epperly’s argument is without merit.
    2. Inappropriate Sentence
    [12]   Epperly argues that his sentences for his Class A misdemeanor operating a
    vehicle while intoxicated and endangering a person and his Class A
    misdemeanor leaving the scene of an accident with bodily injury convictions
    are “manifestly unreasonable.” (Epperly’s Br. 8, 12).
    [13]   We note that the “manifestly unreasonable” standard has been obsolete since
    2001. See Marcus v. State, 
    27 N.E.3d 1134
    , 1135 (Ind. Ct. App. 2015). Thus, we
    restate the issue as whether Epperly’s sentence is inappropriate. We may revise
    a sentence if it is inappropriate in light of the nature of the offense and the
    character of the offender. Ind. Appellate Rule 7(B). The defendant has the
    burden of persuading us that his sentence is inappropriate. Childress v. State, 
    848 N.E.2d 1073
    , 1080 (Ind. 2006). The principal role of a Rule 7(B) review
    “should be to 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). “Appellate Rule 7(B) analysis is not
    to determine whether another sentence is more appropriate but rather whether
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 6 of 9
    the sentence imposed is inappropriate.” Conley v. State, 
    972 N.E.2d 864
    , 876
    (Ind. 2012) (internal quotation marks and citation omitted), reh’g denied.
    [14]   Here, Epperly was convicted of two Class A misdemeanors. The sentencing
    statute for Class A misdemeanors provides that “[a] person who commits a
    Class A misdemeanor shall be imprisoned for a fixed term of not more than one
    (1) year[.]” I.C. § 35-50-3-2. The trial court imposed concurrent sentences of
    one (1) year executed in the county jail for each of Epperly’s Class A
    misdemeanor convictions. Thus, the trial court imposed an aggregate one-year
    sentence.
    [15]   Epperly fails to address how the nature of his offenses and his character render
    his sentence inappropriate.5 Because he has failed to provide relevant, cogent
    argument, we conclude that he has waived this sentencing challenge. See Ind.
    Appellate Rule 46(A)(8)(a) (requiring an appellant to support an argument with
    cogent argument). See also Foutch v. State, 
    53 N.E.3d 577
    , 580 n.1 (Ind. Ct. App.
    2016) (waiving a defendant’s sentencing argument where he failed to provide a
    cogent argument).
    [16]   Waiver notwithstanding, Epperly’s sentence is not inappropriate. The nature of
    Epperly’s offenses involved him driving while drunk, running his truck into
    Wetzold’s car and injuring her, and then fleeing the scene of the accident on
    5
    Epperly merely argues that the trial court should have found certain mitigating circumstances. However, as
    noted above, the trial court was not required to identify and weigh aggravating and mitigating circumstances
    when imposing a sentence for misdemeanor convictions. See 
    Stephenson, 53 N.E.3d at 561
    .
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017          Page 7 of 9
    foot. Once the police apprehended and arrested Epperly, he threatened the
    officers and refused to take a portable breath test and a chemical test. Epperly’s
    aggressive actions continued at the hospital where the police took him for a
    blood draw. The officers had to physically restrain him in order to get the
    blood draw, which, according to the State’s sentencing argument, revealed that
    Epperly had a blood alcohol content of .17.
    [17]   Turning to Epperly’s character, we note that Epperly concedes that his
    “criminal history is extensive.” (Epperly’s Br. 7). Epperly, who was fifty-nine
    years old at the time of sentencing, has a criminal history that spans from 1980
    to his present offenses and includes time served in Indiana Department of
    Correction. At the time of his current offenses, he was on probation from
    convictions in three separate causes for the following offenses: (1) Level 6
    felony operating a vehicle after being an habitual traffic offender; (2) Level 6
    felony criminal reckless committed with a deadly weapon and Class B
    misdemeanor public intoxication endangering the person’s life; and (3) Level 6
    felony residential entry. Additionally, Epperly has multiple alcohol-related
    convictions, including public intoxication and operating a vehicle while
    intoxicated. Epperly’s character reveals a disregard for the law and the
    authority of the courts.
    [18]   Epperly has not persuaded us that his aggregate one-year executed sentence is
    inappropriate. Therefore, we affirm the sentence imposed by the trial court.
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 8 of 9
    [19]   Affirmed.
    Riley, J., and Robb, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 34A05-1704-CM-812 | December 15, 2017   Page 9 of 9
    

Document Info

Docket Number: 34A05-1704-CR-812

Filed Date: 12/15/2017

Precedential Status: Precedential

Modified Date: 12/15/2017