Dean Eric Blanck v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
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:
MICHAEL FRISCHKORN GREGORY F. ZOELLER
Fortville, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 19 2012, 9:25 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
DEAN ERIC BLANCK, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1204-CR-281
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Gail Z. Bardach, Judge
Cause No. 29D06-1101-FD-28
October 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Dean Eric Blanck pleaded guilty pursuant to a plea agreement to class D felony
resisting law enforcement and class C misdemeanor operating while intoxicated (OWI). The
trial court sentenced Blanck to an executed term of 730 days in prison. On appeal, Blanck
presents the following restated issues for review:
1. Did the trial court abuse its sentencing discretion by overlooking
significant mitigating factors?
2. Is Blanck’s sentence inappropriate?
We affirm.
Near midnight on January 2, 2011, Westfield Police Officer Derek Hemmingway
observed Blanck speeding while driving in Hamilton County. Officer Hemmingway
activated his lights and siren in an attempt to pull over Blanck. Blanck then initiated a turn
and fled from the officer, traveling at up to 80 miles per hour, which was twice the posted
speed limit. The chase ended within a short period of time because Blank lost control of his
vehicle and spun into someone’s front lawn. Officer Hemmingway subsequently determined
that Blanck was intoxicated. Blanck was charged the following day with resisting law
enforcement, as a class D felony, and OWI, as a class C misdemeanor.
On February 21, 2012, Blanck pleaded guilty as charged. In exchange, the State
agreed to a sentencing cap of 730 days for the resisting count and 60 days for the OWI count,
to be served concurrently. Following a sentencing hearing, the trial court sentenced Blanck
to the maximum term of imprisonment provided under the plea agreement’s sentencing cap.
The court rejected Blanck’s request for the sentence to be served on home detention, noting
that the request was “absolutely inappropriate” given his extensive criminal history.
2
Transcript at 34. Blanck now appeals.
1.
Blanck initially contends that the trial court abused its discretion because it
overlooked certain mitigating factors. Specifically, Blanck asserts, as he did below, that
imprisonment will result in undue hardship to his ailing mother and himself, given his poor
health.
It is well settled that sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. The trial court must enter a
sentencing statement that includes the court’s reasons for the imposition of the particular
sentence. Id. If the statement includes a finding of aggravating and/or mitigating
circumstances, then the statement must identify all significant mitigating and aggravating
circumstances. Id. An allegation that the court failed to find a particular mitigator requires
the defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Webb v. State, 941 N.E.2d 1082 (Ind. Ct. App. 2011), trans. denied.
A sentencing court is not obligated to find a circumstance to be mitigating merely because it
is advanced as such by the defendant, 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 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.
Blanck makes no showing that the proposed mitigators are significant, as he claims
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only that they are supported by the record. This is not sufficient. See Webb v. State, 941
N.E.2d 1082. Moreover, our independent review of the record reveals that the mitigators are
not significant.
With respect to his mother, Blanck asserts that she has Alzheimer’s disease and
requires a high degree of care, which is difficult for his brother to provide alone. The record
reveals, however, that Blanck’s brother had been caring for their mother without Blanck’s
help for over a year prior to sentencing. In fact, when Blanck bonded out of jail in the instant
case, he quickly absconded out of state, apparently without concern for his mother’s needs.
He was arrested on other charges in southern Indiana about five months later and has
remained incarcerated since. Blanck’s actions showed a complete disregard for any
obligations he felt toward his mother or the hardship that his absence would create for his
mother or brother. The record reveals that Blanck cannot take care of himself, let alone his
ailing mother. The trial court did not abuse its discretion in rejecting this proposed
mitigating factor, which was at most insignificant.
Blanck also claimed that because of his own health, incarceration would result in an
undue hardship on him. Relying upon his own self-serving testimony, Blanck notes that he
has been diagnosed with hepatitis C, chronic cirrhosis of the liver, and COPD. He claimed at
sentencing that he was “basically” terminally ill and that additional treatments would be
available for him if he were not incarcerated. Transcript at 27.
With respect to Blanck’s health, the trial court stated at sentencing: “I’m not ignoring
your medical condition, but your medical condition is, at least partially, attributable to your
extensive abuse of alcohol. Your own choice to do that.” Id. at 34. Further, Blanck’s abuse
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of alcohol will have more detrimental effects if continued, which has been a life-long trend
for Blanck despite an extensive history of alcohol-related arrests and convictions. Blanck has
failed to establish that undue hardship related to his poor health was a significant mitigator
that was overlooked by the trial court.
2.
Next, Blanck contends that his sentence is inappropriate in light of the nature of the
offense and his character. We have the constitutional authority to revise a sentence if, after
careful consideration of the trial court’s decision, we conclude the sentence is inappropriate
in light of the nature of the offense and character of the offender. See Ind. Appellate Rule
7(B); Anglemyer v. State, 868 N.E.2d 482. Even if a trial court follows the appropriate
procedure in arriving at its sentence, we maintain the constitutional power to revise a
sentence we find inappropriate. Hope v. State, 834 N.E.2d 713 (Ind. Ct. App. 2005).
Although we are not required under App. R. 7(B) to be “extremely” deferential to a trial
court’s sentencing decision, we recognize the unique perspective a trial court brings to such
determinations. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). The burden
of persuading us that the sentence is inappropriate is on the defendant. Reid v. State, 876
N.E.2d 1114 (Ind. 2007).
Blanck committed class D felony resisting law enforcement, for which the sentencing
range is 6 months to 3 years, with an advisory sentence of 1 ½ years. Ind. Code Ann. § 35-
50-2-7 (West, Westlaw current with all 2012 legislation). Blanck was sentenced to 730 days
(that is, 2 years) executed in the Department of Correction. Thus, Blanck received a sentence
above the advisory, but still well below the maximum for his offense. Moreover, his
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sentence for the OWI misdemeanor offense was ordered to be served concurrently with the
felony sentence.
With respect to the nature of the offense, we observe that when fleeing from police in
his vehicle, he drove 80 miles per hour in a 40-mile-per-hour zone. Moreover, he stopped
only as a result of losing control and spinning out into a residential lawn. These facts are at
least slightly aggravating.
The appropriateness of Blanck’s sentence is even more apparent upon consideration of
his character. Blanck himself indicated at the sentencing hearing that, at age 56, he has spent
the majority of his adult life in prison or jail and that when not incarcerated, he self-
medicates with alcohol (despite his serious liver condition). As detailed by the trial court,
Blanck has been arrested at least 12 times for OWI, and the instant OWI conviction is his
8th.1 He also has a number of other criminal convictions, the most serious being a class B
felony robbery conviction in 1995, for which he received a 20-year sentence. In all, he has
10 misdemeanor and 6 felony convictions, and he has violated probation a number of times.
Finally, he not only absconded while on bond in this case, but he committed additional
crimes – OWI in Martin County and intimidation in Lawrence County –during that time.
The trial court appropriately concluded that, even considering Blanck’s poor health, home
detention was “absolutely inappropriate” given this history. Transcript at 34. Further, we
agree with the trial court assessment that Blanck is a danger to the community.
1
We recognize that the bulk of Blanck’s sentence is due to the resisting conviction. This conviction,
however, is clearly intertwined with the OWI offense. We reject Blanck’s unsupported assertion that his
extensive history of OWI convictions should not be considered with respect to sentencing for resisting law
enforcement.
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The fact that Blanck pleaded guilty and took responsibility for his actions does not
change our analysis of his character. His decision to plead guilty was clearly a pragmatic
decision, as he secured a highly favorable sentencing cap under the circumstances.2 See
Wells v. State, 836 N.E.2d 476 (Ind. Ct. App. 2005).
After due consideration of the trial court’s decision, we conclude that Blanck’s 2-year
executed sentence is not inappropriate in light of the nature of the offense and his character.
Judgment affirmed.
BROWN, J., and PYLE, J., concur.
2
We note that the trial court expressed reluctance when accepting the plea agreement because the court felt
Blanck should receive a maximum sentence.
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