Michael D. Wood 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:
MATTHEW G. GRANTHAM GREGORY F. ZOELLER
Bowers, Brewer, Garrett & Wiley, LLP Attorney General of Indiana
Huntington, Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
FILED
IN THE Oct 01 2012, 9:09 am
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
MICHAEL D. WOOD, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1204-CR-285
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-1105-FD-84
October 1, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Michael Wood (“Wood”) appeals his one-year aggregate sentence and recommended
two-year driving privilege suspension for Possession of Marijuana as a Class A
misdemeanor, Possession of Paraphernalia as a Class A misdemeanor, and Operating a
Vehicle with .15 or More Blood Alcohol Content as a Class A misdemeanor. He presents
one issue for our review: whether the trial court’s recommendation that his driving privileges
be suspended is appropriate in light of the nature of his offense and his character.
We affirm.
Facts and Procedural History
On April 30, 2011, a motorist informed Eric Sands (“Officer Sands”) of the Markle
Police Department that he had witnessed a vehicle abruptly pull to the side of Interstate 69,
and that when he had offered assistance, the driver was unresponsive and acted strangely.
Officer Sands eventually found Wood in the vehicle on the side of Interstate 69 in
Huntington County, Indiana. Officer Sands observed that Wood’s eyes were red and watery,
his speech was slurred, and he was confused and slow to respond. After repeated requests to
unlock and open the door, Wood fumbled around in the vehicle, turned the windshield wipers
on and off, turned the radio volume up and down, attempted to get the car into gear, and
eventually unlocked the door with his elbow. Wood was unable to unfasten his seatbelt, and
had difficulty handing Officer Sands his driver’s license. Officer Sands smelled alcohol in
the vehicle, and Wood stated that he was “too drunk” and that he “should not be driving.”
(Appellant’s App. at 51.) Wood had difficulty exiting the vehicle and standing on his own.
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Officer Sands handcuffed Wood, and assisted him to his police vehicle with the assistance of
another officer. Wood consented to take a certified breath test, and Officer Sands transported
Wood to a local hospital for a blood draw. En route, Officer Sands learned that other officers
had discovered marijuana and a smoking pipe in Wood’s vehicle. Approximately eighty to
ninety minutes after he was last seen driving, Wood’s blood draw indicated a blood alcohol
content of 0.264.
On May 2, 2011, the State charged Wood with Possession of Marijuana as a Class D
felony,1 Possession of Paraphernalia as a Class A misdemeanor,2 Operating a Vehicle with
.15 or More Blood Alcohol Content as a Class A misdemeanor,3 and Operating While
Intoxicated as a Class C misdemeanor.4 On January 31, 2012, the trial court entered a
judgment of conviction after Wood pled guilty to Possession of Marijuana as a Class A
misdemeanor, Possession of Paraphernalia as a Class A misdemeanor, and Operating a
Vehicle with .15 or More Blood Alcohol Content as a Class A misdemeanor. On March 6,
2012, the court held a sentencing hearing and imposed an aggregate sentence of one year
imprisonment; ordered fines, fees and court costs of $2515 to be paid in full by January 29,
2013; and recommended suspension of Wood’s driving privileges for two years.
Wood now appeals.
1
Ind. Code § 35-48-4-11 (2010). Relevant section modified, effective July 1, 2011. We refer to the
version of the statute in force at the time of the alleged crime.
2
I.C. § 35-48-4-8.3(b).
3
I.C. § 9-30-5-1(b).
4
I.C. § 9-30-5-2(a).
3
Discussion and Decision
Wood was convicted of three Class A misdemeanors. A Class A misdemeanor carries
a sentence of up to one year in prison, with a possible fine of up to $5,000.5 During the
sentencing hearing, the trial court identified the following aggravating circumstances: (1)
nine prior felony offenses, (2) sixteen prior misdemeanor offenses, and (3) ten petitions to
revoke driving privileges. (Tr. 51.) The court identified no mitigating circumstances. Here,
the trial court was required to recommend suspension of Wood’s driving privileges for at
least one year, but not more than two years.6 The court imposed on Wood an aggregate
sentence of one year imprisonment with a fine of $1,350, and recommended suspension of
Wood’s driving privileges for two years. Wood contends that the trial court’s
recommendation that his driving privileges be suspended is inappropriate in light of the
nature of the offense and his character.
Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of a sentence through Indiana Appellate Rule 7(B), even
though a trial court may have acted within its lawful discretion in determining a criminal
sentence. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). One of the main roles of
appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). An appellate 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
5
I.C. § 35-50-3-2.
6
I.C. § 9-30-5-10(d).
4
light of the nature of the offense and the character of the offender.” App. R. 7(B).
Sentencing is principally discretionary, and we give considerable deference to a trial court’s
judgment. Cardwell, 895 N.E.2d at 1222. Indiana’s flexible sentencing scheme allows trial
courts to tailor an appropriate sentence to the circumstances. See id. at 1224.
Appropriateness may turn on 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. Id.
As to the nature of his offenses, Wood asks us to consider his claims that he
recognized at some point that he was unfit to drive and pulled over, that he displayed no
erratic or dangerous driving behavior besides abruptly pulling over to the side of the road,
and that he had neither marijuana nor any other controlled substance in his system. However,
after his arrest Wood’s blood alcohol content was 0.264, more than three times the legal
limit,7 and Officer Sands first made contact with Wood because a concerned motorist
reported Wood to be driving erratically. (Appellant’s App. at 51.)
As to his character, Woods urges us to consider that his behavior seemed to improve
following his release from the Indiana Department of Correction in 2003. He asks us to
consider that prior to sentencing he successfully completed an intensive outpatient program,
continued to participate in individual counseling, and attended Alcoholics Anonymous
meetings. Finally, he asks us to consider that he lives in Anderson, Indiana, and must
commute to his place of employment in Fort Wayne, Indiana. However, Wood’s extensive
record of criminal offenses, including at least ten arrests and at least eight convictions for
7
The legal limit in Indiana is a blood alcohol content of 0.08. I.C. § 9-30-5-1(a).
5
operating while intoxicated, indicates that he holds little regard for legal prohibitions on
drinking and driving. (Appellant’s App. at 60-66.) Furthermore, he was convicted on at least
two separate occasions of violating a lifetime suspension of his driving privileges. Id. at 63-
66. Taken together with the nature of his offenses, none of this so distinguishes Wood as to
warrant reduction of the trial court’s recommendation that his driving privileges be
suspended. Thus, we cannot agree with Wood’s argument that the trial court’s
recommendation is inappropriate.
Conclusion
The trial court’s recommendation that Wood’s driving privileges be suspended is not
inappropriate in light of the nature of the offenses and his character.
Affirmed.
RILEY, J., and CRONE, J., concur.
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