Derek Hicks v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 14 2020, 8:54 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael G. Moore Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek Hicks, December 14, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1347
v. Appeal from the Vermillion Circuit
Court
State of Indiana, The Honorable Robert M. Hall,
Appellee-Plaintiff. Judge
Trial Court Cause No.
83C01-1706-F6-124
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1347 | December 14, 2020 Page 1 of 7
Case Summary
[1] Derek Hicks appeals his sentence resulting from his guilty plea to Count I,
resisting law enforcement, a Level 6 felony; Count II, possession of
methamphetamine, a Level 6 felony; and Count IV, criminal recklessness, a
Level 6 felony. We affirm.
Issue
[2] Hicks raises a single issue which we restate as whether his sentence was
inappropriate in light of the nature of the offenses and his character.
Facts 1
[3] On June 13, 2017, Officer Brandon Mahady with the Clinton City Police
Department observed a red Dodge Avenger “travelling faster than the normal
flow of traffic.” Appellant’s App. p. 27. Officer Mahady observed a non-
operative brake light on the vehicle and “used his lights and sirens,” in an
attempt to effectuate a traffic stop. Tr. Vol. II p. 7. The driver, later identified
as Hicks, however, used his “vehicle to flee from [Officer Mahady,] a law
1
Both Hicks and the State draw the facts in their briefs almost exclusively from the probable cause affidavit
(“PC Affidavit”) underlying the arrest warrant; the factual basis elicted at the plea hearing consisted of a mere
reading of the charging information documents. The record, however, is devoid of evidence that the PC
Affidavit was ever admitted into evidence, that the trial court judge ever took judicial notice of it, or that the
parties stipulated to the “facts” it contains. Moreover, although the PC Affidavit is generally part of the pre-
sentence investigation report (“PSI”) and the defendant has the opportunity to dispute information in the
PSI, no PSI was prepared in this case. See Ind. Code § 35-38-1-8. As such, the uncorroborated allegations in
the PC Affidavit are not part of the evidentiary record and do not constitute “facts” for purposes of appellate
review. Nevertheless, given that Hicks himself relies on the “facts” therein, we will, in limited part, do the
same for our own recitation of the facts.
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enforcement officer.” Id. The ensuing chase was lengthy, with speeds in excess
of one hundred miles per hour, and Hicks narrowly missed collisions with other
drivers, pedestrians, and a gas pump. At one point during the chase, Officer
Mahady observed Hicks throw a clear plastic bag out of the driver’s side
window. The bag, which was subsequently recovered and tested, was revealed
to contain methamphetamine. The chase culminated in Hicks driving onto a
dirt gravel road. In the ensuing dust cloud, Officer Mahady lost visual contact
with Hicks, and Hicks abandoned the vehicle and fled.
[4] After investigating the identity of the driver, on June 15, 2017, the State filed
the following charges against Hicks: Count I, criminal recklessness, a Level 6
felony; Count II, possession of methamphetamine, a Level 6 felony; three
counts (Counts III, IV, and V) of criminal recklessness, Level 6 felonies; and
Count VI, driving while suspended, a Class A misdemeanor. An arrest warrant
was served on Hicks on October 31, 2018.
[5] At a change of plea hearing on August 14, 2019, the State indicated that it had
reached a plea agreement with Hicks, wherein Hicks would plead guilty to
Counts I, II, and IV, and serve consecutive sentences of 365 days for each, for
an aggregate sentence of 1095 days. In exchange, the State agreed to drop the
remaining counts. The trial court accepted the plea agreement and then
requested a criminal history report for Hicks, rather than a pre-sentence
investigation report. See Ind. Code § 35-38-1-8 (providing that a PSI is not
required if none of the charges exceeds a Level 6 felony).
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[6] On January 15, 2020, Hicks failed to appear for his sentencing hearing. His
attorney reported that Hicks had been present at the courthouse, and then
absconded. At the rescheduled sentencing hearing on June 10, 2020, Hicks did
not present any evidence, nor did he object to the contents of the criminal
history report. Hicks requested home detention. In light of Hicks’ criminal
history and the absence of evidence of any mitigating factors, the trial court
denied Hicks’ request and imposed consecutive 365-day sentences for each of
the three Level 6 felony convictions, for a cumulative sentence of 1095 days.
Hicks now appeals.
Analysis
[7] Hicks argues that his sentence is inappropriate in light of the nature of the
offenses and his character. The Indiana Constitution authorizes independent
appellate review and revision of a trial court’s sentencing decision. See Ind.
Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). Our
Supreme Court has implemented this authority through Indiana Appellate Rule
7(B), which allows this Court to revise a sentence when it is “inappropriate in
light of the nature of the offense and the character of the offender.” Our review
of a sentence under Appellate Rule 7(B) is not an act of second guessing the
trial court’s sentence; rather, “[o]ur posture on appeal is [ ] deferential” to the
trial court. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v.
State, 6 N.E.3d 940, 946 (Ind. 2014)). We exercise our authority under
Appellate Rule 7(B) only in “exceptional cases, and its exercise ‘boils down to
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our collective sense of what is appropriate.’” Mullins v. State, 148 N.E.3d 986,
987 (Ind. 2020) (quoting Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).
[8] “‘The principal role of appellate review is to attempt to leaven the outliers.’”
McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008)). The point is “not to achieve a perceived
correct sentence.” Id. “Whether a sentence should be deemed inappropriate
‘turns on our sense of 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. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial
court’s sentence “should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[9] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). In the case at
bar, Hicks pleaded guilty to three Level 6 felonies, and recieved a one-year
sentence for each. Indiana Code Section 35-50-2-7 provides that anyone
convicted of a Level 6 felony “shall be imprisoned for a fixed term of between
six (6) months and two and one-half (2 ½ ) years, with the advisory sentence
being one (1) year.”
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[10] Our analysis of the “nature of the offense” requires us to look at the nature,
extent, and depravity of the offense. Sorenson v. State, 133 N.E.3d 717, 729 (Ind.
Ct. App. 2019), trans. denied. With regard to the nature of the crimes, Hicks led
police in an extended and reckless high speed chase, which damaged property,
and endangered the lives of numerous innocent individuals. Moreover, Hicks
possessed and attempted to dispose of methamphetamine. He then abandoned
the vehicle and fled, eluding capture for well over a year.
[11] Our analysis of the character of the offender involves a “broad consideration of
a defendant’s qualities,” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App.
2019), including the defendant’s age, criminal history, background, and
remorse. James v. State, 868 N.E.2d 543, 548-59 (Ind. Ct. App. 2007). The
record contains little evidence concerning Hicks’ character, save that he
absconded from his first scheduled sentencing hearing and has an extensive
criminal history. “The significance of a criminal history in assessing a
defendant's character and an appropriate sentence varies based on the gravity,
nature, proximity, and number of prior offenses in relation to the current
offense.” Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015) (citing
Bryant v. State, 841 N.E.2d 1154, 1156 (Ind. 2006)), trans. denied. “Even a minor
criminal history is a poor reflection of a defendant’s character.” Prince v. State,
148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (citing Moss v. State, 13 N.E.3d
440, 448 (Ind. Ct. App. 2014), trans. denied). Hicks’ wide-ranging criminal
history, according to the criminal history report ordered by the trial court,
includes at least eight felonies, eight misdemeanors, multiple bouts of
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incarceration, four probation revocations, and four juvenile offenses, two of
which would have been felonies if they were committed by an adult.
[12] Hicks argues that he “was employed at the time of the offense, had never had
the benefit of a court drug treatment program and was responsible for a
dependent. He admitted guilt without having to require the State and the Trial
Court to go through a lengthy trial.” Appellant’s Br. p. 6. We are unmoved.
The nature, length, and severity of Hicks’ criminal history are not offset by the
facts to which he refers us. Hicks’ sentence was not inappropriate in light of his
character and the nature of the offenses.
Conclusion
[13] Hicks’ sentence was not inappropriate. Accordingly, we affirm.
Bailey, J., and Robb, J., concur.
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