Roy L. Streicher 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 FILED
court except for the purpose of Jul 24 2012, 8:36 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROY L. STREICHER, )
)
Appellant-Defendant, )
)
vs. ) No. 69A05-1111-CR-603
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE RIPLEY CIRCUIT COURT
The Honorable Carl H. Taul, Judge
Cause No. 69C01-1006-FC-12
July 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Roy L. Streicher appeals his aggregate three-year sentence for Class D felony
operating a vehicle while intoxicated with a previous operating while intoxicated
conviction within the last five years, Ind. Code § 9-30-5-3 (2008); Class C misdemeanor
operating a vehicle while intoxicated, Ind. Code § 9-30-5-2 (2001); and Class A
misdemeanor domestic battery with injury, Ind. Code § 35-42-2-1.3 (2006). We remand
with instructions to vacate the Class C misdemeanor conviction but otherwise affirm.
ISSUES
I. We first address sua sponte whether Streicher’s conviction for Class C
misdemeanor operating a vehicle while intoxicated is barred by the
prohibition against double jeopardy.
II. We then address Streicher’s sole claim on appeal, which we restate as
whether his sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY1
In June 2010, Streicher had been drinking alcohol and began arguing with his
wife. Streicher told her to move her car or he would run it over with his tractor. When
his wife failed to move her car, Streicher drove the tractor and pinned her between the
tractor and her car. A tractor tire ran over her toe. Streicher left the residence in a truck
and was later stopped by police. He failed field sobriety tests and took a portable breath
test, which registered 0.16 grams of alcohol per 210 liters of breath.
1
Because the factual bases for the crimes provided at the guilty plea hearing do not provide much detail,
we recite the facts as provided by the probable cause affidavit, which is cited by Streicher in his statement
of facts and was included in the presentence investigation report.
2
The State charged Streicher with Class D felony operating a vehicle while
intoxicated with a previous operating while intoxicated conviction within the last five
years (based on a 2007 operating while intoxicated conviction), Class C misdemeanor
operating a vehicle while intoxicated, Class A misdemeanor criminal recklessness, Class
A misdemeanor domestic battery with injury, Class C felony possession of a handgun
without a permit while having a prior felony conviction within fifteen years, and Class C
misdemeanor operating a vehicle with a BAC of at least 0.08. He was also alleged to be
a habitual substance offender.
Streicher pleaded guilty to Class D felony operating a vehicle while intoxicated
with a previous operating while intoxicated conviction within the last five years, Class C
misdemeanor operating a vehicle while intoxicated, and Class A misdemeanor domestic
battery with injury. At the beginning of the guilty plea hearing, the State had informed
the trial court that Streicher was pleading guilty to Class C misdemeanor operating a
vehicle while intoxicated because “he has to plead to an OWI to get to the felony OWI.”
Tr. p. 8. Defense counsel had agreed: “[H]e has got to plead to the predicate just to make
it work and then they merge.” Id. at 9.
The trial court sentenced Streicher to the Department of Correction for three years
on the Class D felony, sixty days on the Class C misdemeanor, and one year on the Class
A misdemeanor. The sentences were ordered to be served concurrently, for an aggregate
term of three years. On the State’s motion, the trial court dismissed the remaining
charges. Streicher now appeals his sentence.
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DISCUSSION AND DECISION
I. DOUBLE JEOPARDY
We first address sua sponte whether Streicher’s conviction for Class C
misdemeanor operating a vehicle while intoxicated is barred by the prohibition against
double jeopardy. See Harrison v. State, 901 N.E.2d 635, 643-44 (Ind. Ct. App. 2009)
(addressing double jeopardy issue sua sponte), trans. denied. “Where the conviction of
the greater crime cannot be had without conviction of the lesser crime, the double
jeopardy clause bars separate conviction and sentencing on the lesser crime when
sentencing is imposed on the greater one.” Boze v. State, 514 N.E.2d 275, 277 (Ind.
1987).
Streicher was convicted of both Class D felony operating a vehicle while
intoxicated with a previous operating while intoxicated conviction within the last five
years and Class C misdemeanor operating a vehicle while intoxicated. Indiana Code
section 9-30-5-2(a) provides that “a person who operates a vehicle while intoxicated
commits a Class C misdemeanor.” Indiana Code section 9-30-5-3(a) provides:
(a) . . . [A] person who violates section 1 or 2 of this chapter commits a
Class D felony if:
(1) the person has a previous conviction of operating while
intoxicated that occurred within the five (5) years immediately
preceding the occurrence of the violation of section 1 or 2 of this
chapter . . . .
Thus, a person commits a Class D felony if he operates a vehicle while intoxicated and
has had a previous conviction of operating while intoxicated within the five immediately
preceding years.
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It is clear from the statements of counsel at the guilty plea hearing that the Class C
misdemeanor and Class D felony operating while intoxicated convictions are predicated
on the same act of operating while intoxicated. The only difference between the two
offenses is that the enhancement to the Class D felony was based on Streicher’s 2007
operating while intoxicated conviction. Streicher’s Class C misdemeanor conviction is
thus a factually lesser included offense of the Class D felony conviction. We conclude
that the convictions violate double jeopardy and therefore remand with instructions to
vacate the Class C misdemeanor conviction. See Puckett v. State, 843 N.E.2d 959, 964
(Ind. Ct. App. 2006) (concluding that merger was insufficient and remanding with
instructions to vacate Class C misdemeanor operating while intoxicated conviction where
it was a factually lesser included offense of Class D felony operating while intoxicated
conviction). As all of Streicher’s sentences were ordered to be served concurrently, the
vacation of his Class C misdemeanor conviction does not affect the aggregate term of his
sentence.
II. INAPPROPRIATE SENTENCE
Streicher contends that his sentence is inappropriate. Although a trial court may
have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6
of the Indiana Constitution authorize independent appellate review and revision of
sentences through Indiana Appellate Rule 7(B), which provides that a 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing
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Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218
(2007)). The defendant has the burden of persuading us that his sentence is
inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). In
assessing whether a sentence is inappropriate, appellate courts may take into account
whether a portion of the sentence is ordered suspended or otherwise crafted using any of
the variety of sentencing tools available to the trial judge. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
We first look to the statutory ranges established for the classes of the offenses.
Streicher pleaded guilty to a Class D felony and a Class A misdemeanor. The statutory
range for a Class D felony is between six months and three years, with the advisory
sentence being one and a half years. Ind. Code § 35-50-2-7(a) (2005). For a Class A
misdemeanor, a person may not be imprisoned for more than one year. Ind. Code § 35-
50-3-2 (1977). Streicher was given maximum terms, to be served concurrently, for an
aggregate three-year sentence.
We next look to the nature of the offenses and Streicher’s character. As to the
nature of the offenses, Streicher was drinking, argued with his wife, pinned her between
two vehicles, and ran over her toe with the tractor. He then left the scene.
As to Streicher’s character, his criminal history alone justifies the sentence
imposed by the trial court. Streicher has accumulated fifteen criminal convictions across
three states. Of those convictions, many are similar in nature to the offenses here: one
was for domestic violence in Alabama, five were for operating while intoxicated in
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Indiana, and at least three were alcohol-related offenses in Ohio. Moreover, Streicher has
previously been placed on probation but has violated probation multiple times.
Streicher nonetheless asks us to consider his alcohol addiction as a factor
warranting a lesser sentence. At the sentencing hearing, he asserted that he had never
been offered help for his problems with alcohol:
I would just like to say, Your Honor, you know, alcohol has affected my
life and I have had several DUI’s and nobody has ever offered me help,
counseling or anything and it’s a, it is a pattern, I don’t, I go two (2), three
(3) years without a DUI but then I receive another one and I, I know it is
not the right thing to do. I just, I would like to get some help somehow.
Tr. pp. 25-26. To the contrary, the presentence investigation report shows that he has
been ordered to obtain a substance abuse evaluation and to comply with treatment
recommendations and that he has been ordered to go through mandatory alcohol
treatment. He also informed the probation department that he attended Alcoholics
Anonymous ten times while on probation in 2006. We acknowledge Streicher’s alcohol
issues; however, given his failure to conform his behavior despite treatment opportunities
and numerous alcohol-related convictions, a reduction in his sentence is not warranted.
Streicher has failed to persuade us that his sentence is inappropriate in light of the
nature of his offenses and his character.2
2
Streicher asserts in his argument summary that the trial court abused its discretion by not suspending any
of his sentence to probation, but he fails to develop a corresponding argument. In any event, a trial
court’s decision not to suspend a sentence is reviewable only for an abuse of discretion. Ables v. State,
848 N.E.2d 293, 296 (Ind. Ct. App. 2006). As noted above, Streicher has violated probation multiple
times. Further, the probation department stated that it did not believe Streicher was a good candidate for
probation. The trial court apparently agreed:
Probation is a waste of time on you, Mr. Streicher, frankly. You are either going to help
yourself or not. And from what I see you are not going to so I am not going to waste my
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CONCLUSION
For the reasons stated, we remand to the trial court with instructions to vacate the
Class C misdemeanor conviction and affirm Streicher’s aggregate three-year sentence.
Affirmed in part, remanded in part with instructions.
ROBB, C.J., and FRIEDLANDER, J., concur.
probation department’s time taking up time with you. There’s just no point. If you want
to help yourself you can if you don’t, then you will be back in here or some other court.
Tr. p. 29. We cannot say that the trial court abused its discretion.
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