Thomas Drnek v. State of Indiana (mem. dec.) ( 2015 )

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.
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[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.
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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.
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[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.
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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:
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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
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“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.
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[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
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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
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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.
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