David Miller v. State of Indinaa (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as May 12 2015, 9:19 am
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
Mark I. Cox Gregory F. Zoeller
The Mark I. Cox Law Office, LLC Attorney General of Indiana
Richmond, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Miller, May 12, 2015
Appellant-Defendant, Court of Appeals Case No.
89A01-1412-CR-539
v. Appeal from the
Wayne Circuit Court
State of Indiana, The Honorable David A. Kolger,
Judge
Appellee-Plaintiff.
Cause No. 89C01-1407-F6-261
Kirsch, Judge.
[1] David Miller pleaded guilty to resisting law enforcement 1 as a Level 6 felony,
and the trial court sentenced him to 800 days executed in the Department of
1
See Ind. Code § 35-44.1-3-1(a)(3), (b)(1)(A).
Court of Appeals of Indiana | Memorandum Decision 89A01-1412-CR-539 | May 12, 2015 Page 1 of 4
Correction. On appeal, Miller contends that his sentence is inappropriate in
light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] Richmond Police Department Officer Charles Irvin (“Officer Irvin”) saw a
speeding Jeep Cherokee run a stop sign in Richmond, Indiana. Officer Irvin
activated his emergency lights to make a traffic stop; however, the man driving
the Jeep, who was later identified as Miller, failed to stop. Miller pulled into an
alley, and when Officer Irvin activated his emergency siren, Miller sped through
the alley and pulled onto South E Street without stopping. Several vehicles had
to stop in order to avoid a collision with the Jeep. The pursuit ended when the
Jeep crashed into large boulders, went airborne, landed in a yard, and crashed
through a privacy fence. Miller fled on foot, leaving his passenger behind.
[4] Officer Irvin, unable to locate Miller on the day in question, interviewed him
four days later when Miller appeared at the police station. Miller admitted that
he fled, but claimed that he panicked after he saw a police car behind him. On
July 31, 2014, the State charged Miller with resisting law enforcement as a
Level 6 felony. Initially, Miller signed a plea deal, agreeing to be incarcerated
for six months, followed by one year of probation. Miller withdrew from this
agreement, however, and asked for a “mercy plea,” i.e., an open plea.
Appellant’s App. at 32. The trial court accepted Miller’s mercy plea on
Court of Appeals of Indiana | Memorandum Decision 89A01-1412-CR-539 | May 12, 2015 Page 2 of 4
November 17, 2014; a sentencing hearing was scheduled for about a week later.
Tr. at 7.
[5] The range of punishment for a Level 6 felony is six months to two-and-a-half
years, or about 180 days to 900 days. Ind. Code § 35-50-2-7 (2014). During
sentencing, and after noting that Miller had accumulated six felony convictions,
five misdemeanor convictions, and two probation revocations in the previous
seven years, the trial court imposed a sentence of 800 days. Miller now appeals.
Discussion and Decision
[6] Indiana Appellate Rule 7(B) empowers us to independently review and revise
sentences authorized by statute if, after due consideration, we find the trial
court’s decision is inappropriate in light of the nature of the offense and the
character of the offender. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.
2013), trans. denied. The “nature of offense” compares the defendant’s actions
with the required showing to sustain a conviction under the charged offense,
while the “character of the offender” permits for a broader consideration of the
defendant’s character. Id. The defendant has the burden of persuading this
court that his sentence is inappropriate. Carroll v. State, 922 N.E.2d 755, 757
(Ind. Ct. App. 2010), trans. denied.
[7] As to the nature of the offense, Officer Irvin observed Miller speeding past a
stop sign and activated his emergency lights. Miller failed to stop; instead he
turned into an alley. Officer Irvin activated his siren, which prompted Miller to
race down the alley and pull into traffic without stopping. Other vehicles had
Court of Appeals of Indiana | Memorandum Decision 89A01-1412-CR-539 | May 12, 2015 Page 3 of 4
to stop to avoid a collision. Miller continued to flee the police at a rapid speed
until he hit some large boulders, went airborne, landed in a yard, and crashed
through a privacy fence. Miller’s actions jeopardized the safety of his
passenger, the drivers on the road, Officer Irvin, and anyone who might have
been in the yard where the Jeep landed. His actions also resulted in damage to
personal property. In light of the danger to persons and damage to property,
Miller has not met his burden of proving that a sentence of 800 days was
inappropriate.
[8] Miller’s criminal history gives us insight into his character. At the time of
sentencing, Miller had accumulated six felony and five misdemeanor
convictions within the previous seven years, most having been committed in
Ohio. The felonies included breaking and entering plus various counts
involving auto theft. While all of Miller’s prior felonies occurred in 2007, he
violated his probation in 2010 and again in 2011, and was convicted of
misdemeanor criminal trespass and receiving stolen property in 2012 and 2013
respectively. Again, based on this criminal history, Miller has not met his
burden of proving that 800 days, which is 100 days less than the maximum
sentence allowed, is inappropriate in light of his character.
[9] Affirmed.
[10] Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 89A01-1412-CR-539 | May 12, 2015 Page 4 of 4