Lisa M. Rooker v. State of Indiana ( 2013 )

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 Mar 22 2013, 8:46 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
EVAN B. BRODERICK GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LISA M. ROOKER, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1206-CR-492
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable David Happe, Judge
Cause No. 48D04-1102-FD-145
March 22, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Lisa Rooker appeals the three-year sentence imposed by the trial court for Class D
felony operating a vehicle while intoxicated (“OWI”). We affirm.
Issue
The sole issue Rooker raises is whether the trial court abused its discretion in
sentencing her.
Facts
On February 1, 2011, Rooker was driving on State Road 9 in Madison County
when she drifted into the oncoming lane of traffic, striking another vehicle coming from
the other direction and causing severe whiplash to the other driver. The first responding
officer noticed the smell of alcohol in Rooker’s vehicle, but Rooker denied having
recently drunk alcohol. Another officer later noticed that Rooker smelled of alcohol, had
slurred speech and glassy eyes, and stumbled when walking. At the hospital where she
received treatment after the accident, Rooker provided hospital staff with a glass of tap
water when she was asked to provide a urine sample. After originally refusing to provide
a breath sample to law enforcement, Rooker later offered to provide a sample, but she
failed to provide an adequate breath sample three times. After the failures, Rooker said,
“good with no number they won’t be able to prove it in court.” Tr. p. 104. Rooker never
provided an adequate breath sample.
The State charged Rooker with Class B misdemeanor public intoxication, Class A
misdemeanor OWI endangering a person, and Class D felony OWI based upon a prior
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OWI conviction within the previous five years. In a bifurcated trial, a jury first found
Rooker guilty of public intoxication and Class A misdemeanor OWI, and she then pled
guilty to the Class D felony OWI charge. At sentencing the trial court found as
aggravators Rooker’s criminal history, the seriousness of the accident she caused, and her
attempt to hide her alcohol consumption by, for example, providing a glass of water to
hospital staff instead of a urine sample. As mitigators, the trial court noted Rooker’s
employment history and expression of remorse, although it did not find that expression
very convincing. The trial court merged the misdemeanor OWI with the felony OWI,
and sentenced her to three years or 1095 days on the OWI conviction, with 574 days
executed, 574 days suspended, and credit for one day served. It also sentenced her to 180
days on the public intoxication conviction to be served concurrently with the OWI
sentence. Rooker now appeals her sentence.
Analysis
Rooker contends the trial court abused its discretion in sentencing her by
overlooking mitigating circumstances. An abuse of discretion in identifying or not
identifying aggravators and mitigators occurs if it is “‘clearly against the logic and effect
of the facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007) (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse
of discretion occurs if the record does not support the reasons given for imposing
sentence, or the sentencing statement omits reasons that are clearly supported by the
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record and advanced for consideration, or the reasons given are improper as a matter of
law. Id. at 490-91. “An allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record.” Id. at 493.
Rooker first contends that the trial court should have found her troubled
childhood, as related in the presentence investigation report, to be a mitigating
circumstance. However, at sentencing Rooker did not ask the trial court to consider this a
mitigating circumstance. We generally will not find an abuse of discretion if a trial court
fails to consider an alleged mitigating factor that was not raised at sentencing.
Anglemyer, 868 N.E.2d at 492. Our supreme court has recognized an exception to this
rule for guilty pleas, which trial courts inherently should be aware can be mitigating.
Anglemyer v. State, 875 N.E.2d 218, 220 (Ind. 2007). A troubled childhood, by contrast,
has repeatedly been held to warrant “‘little, if any, mitigating weight . . . .’” See, e.g.,
Patterson v. State, 909 N.E.2d 1058, 1062-63 (Ind. Ct. App. 2009) (quoting Ritchie v.
State, 875 N.E.2d 706, 725 (Ind. 2007)). Given Rooker’s failure to argue her childhood
as a mitigating circumstance before the trial court, we apply the general presumption that
it did not constitute a significant mitigating circumstance. See Anglemyer, 875 N.E.2d at
220 (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000)).
Next, we address Rooker’s claim that the trial court should have assigned
mitigating weight to her guilty plea to the Class D felony enhancement to the OWI
charge. The significance of a guilty plea as a mitigating circumstance varies from case to
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case. Id. at 221. Specifically, a guilty plea may not be a significant mitigating
circumstance if it is clear the decision to plead guilty was merely a pragmatic one
because of the weight of the State’s evidence. Rogers v. State, 878 N.E.2d 269, 273 (Ind.
Ct. App. 2007), trans. denied. Here, there seems to have been virtually no doubt that
Rooker had the prior conviction necessary to support enhancement of her OWI
conviction to a Class D felony, meaning a guilty verdict on that issue would or should
have been a foregone conclusion. Additionally, Rooker’s guilty plea did not save the
State the time and expense of conducting a jury trial, as a jury trial was in fact conducted
on the public intoxication and misdemeanor OWI charges in the first part of the
bifurcated trial. Given these factors, we cannot say Rooker’s guilty plea was a significant
mitigating circumstance and the trial court did not abuse its discretion in failing to
mention it.
Finally, Rooker argues that the trial court should have given mitigating weight to
evidence she presented at sentencing of her health concerns. Specifically, at Rooker’s
first sentencing hearing, she informed the trial court that she had recently discovered a
lump on her breast and requested a continuance of sentencing so she could visit a doctor
and undergo testing. The trial court granted this continuance. At the second hearing held
two months later, Rooker did not indicate the results of any testing regarding her breast,
but did say that she recently had a “bad” pap smear and needed to undergo further testing,
and possibly have a hysterectomy. Tr. p. 225. Rooker did not submit any documentary
evidence regarding the precise scope or nature of her health problems.
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Although it is unfortunate that Rooker may be facing health challenges,
incarcerated prisoners are entitled to receive health care, as noted by the trial court. See
Ind. Code § 11-10-3-2(c). Rooker failed to present evidence that her health problems—
or potential health problems, given that their scope is presently unclear—“would be
untreatable during incarceration or would render incarceration a hardship.” See
Henderson v. State, 848 N.E.2d 341, 345 (Ind. Ct. App. 2006). As such, we cannot say
the trial court abused its discretion in failing to recognize Rooker’s health as a mitigating
circumstance. See id.Conclusion
The trial court did not abuse its discretion in failing to find the three alleged
mitigating circumstances that Rooker advances on appeal. We affirm her sentence.
Affirmed.
BAKER, J., and RILEY, J., concur.
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