Billy Joe Freeman v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Mar 19 2018, 9:19 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald J. Moore Curtis T. Hill, Jr.
The Moore Law Firm, LLC Attorney General
Richmond, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Billy Joe Freeman, March 19, 2018
Appellant-Defendant, Court of Appeals Case No.
89A05-1710-CR-2526
v. Appeal from the Wayne County
Superior Court 3
State of Indiana, The Honorable Darrin M.
Appellee-Plaintiff Dolehanty, Judge
Trial Court Cause No.
89D03-1703-F6-104
Vaidik, Chief Judge.
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Case Summary
[1] Billy Joe Freeman pled guilty to Level 6 felony operating a vehicle with an
alcohol concentration equivalent to at least 0.15 gram of alcohol per 100
milliliters of blood and admitted that he is a habitual vehicular substance
offender (HVSO). The trial court imposed a sentence of two years enhanced by
five years for the HVSO finding. Freeman now appeals, arguing that his seven-
year sentence is inappropriate. We affirm.
Facts and Procedural History
[2] By March 2017, Freeman, age forty-six, had amassed “a fairly amazing
criminal record” consisting of twenty-three convictions (eight of which were
felonies). Tr. Vol. II p. 73. At least ten of the twenty-three convictions were for
alcohol-related offenses, including four for operating while intoxicated (1993,
2002, 2004, and 2013). For his convictions, Freeman has been sentenced to jail
time, suspended jail time, prison time, suspended prison time, informal
probation, formal probation, fines, community service, license suspensions,
home detention, and substance-abuse treatment. Significantly, in 2007,
Freeman was sentenced to ten years in prison for possession of a controlled
substance and being a habitual substance offender. In addition, Freeman has
had his probation revoked three times and his home detention revoked once.
[3] On March 3, 2017—while Freeman was out on pretrial bond for charges of
residential entry, resisting law enforcement, and battery resulting in bodily
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injury—a Richmond Police Department officer pulled over Freeman for failing
to signal a turn. During the stop, the officer observed that Freeman showed
signs of intoxication, including the odor of an alcoholic beverage, impaired
dexterity, and imbalance. Freeman admitted that he had consumed beer before
driving. Freeman agreed to take a blood test, which revealed that he had an
alcohol concentration equivalent to 0.226 gram of alcohol per 100 milliliters of
his blood, which is nearly three times the legal limit.
[4] Thereafter, the State charged Freeman with Count I: Level 6 felony operating a
vehicle while intoxicated (based on a prior conviction within five years) and
Count II: Level 6 felony operating a vehicle with an alcohol concentration
equivalent to at least 0.15 gram of alcohol per 100 milliliters of blood (based on
a prior conviction within five years). The State also alleged that Freeman was
an HVSO based on his 2004 and 2013 operating-while-intoxicated convictions.
[5] After several continuances (requested mostly by Freeman), a jury trial was set
for Wednesday, August 23, 2017. On the Monday before trial, Freeman filed a
notice of intent to plead guilty. A guilty-plea hearing was held that day.
Freeman pled guilty to Count II and admitted being an HVSO. In exchange,
the State dismissed Count I. There was no agreement as to Freeman’s
sentence. The court accepted Freeman’s guilty pleas and set the matter for
sentencing.
[6] At the sentencing hearing, the trial court identified two aggravators: (1)
Freeman’s “abysmal criminal record” and (2) the fact that many of Freeman’s
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twenty-three prior convictions are “directly related to the current conviction, in
that they involve the operation of a motor vehicle, the abuse of alcohol or
drugs, and on four (4) occasions a combination of the two.” Appellant’s App.
Vol. II p. 73. The court identified the following mitigators: (1) no one was
injured as a result of this offense; (2) Freeman accepted responsibility by
pleading guilty; however, the court found that this mitigator was “absolutely
hampered by the fact that it was done basically a day and a half before trial”
when they already had “forty (40) plus members of the community ordered to
make arrangements to reschedule their lives”; (3) he cared for his children, ages
ten and fourteen; however, he did not have a plan for them once he became
incarcerated; (4) he cared for his mother, who was in poor health; (5) he had
been employed for two years; and (6) he was described by some as “a good
neighbor.” Tr. Vol. II p. 76. Concluding that the aggravators outweighed the
mitigators, the trial court sentenced Freeman to an above-advisory term of two
years for Count II, enhanced by five years for being an HVSO.
[7] Freeman now appeals his sentence.
Discussion and Decision
[8] Freeman contends that his seven-year sentence is inappropriate because “[h]is
current character is not reflective of the lengthy record he has amassed.”
Appellant’s Br. p. 17. Indiana Appellate Rule 7(B) provides that 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
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light of the nature of the offense and the character of the offender.”
“[S]entencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). “Such deference 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). Whether we
regard a sentence as inappropriate ultimately “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.” Cardwell,
895 N.E.2d at 1224.
[9] In order to assess the appropriateness of a sentence, we first look to the
statutory range for each level of offense. Here, Freeman committed a Level 6
felony and was found to be an HVSO. Thus, the trial court had the discretion
to sentence Freeman to a term of up to ten-and-a-half years in prison. See Ind.
Code § 35-50-2-7 (providing that a person who commits a Level 6 felony shall
be imprisoned for a fixed term of between six months and two-and-a-half years,
with an advisory sentence of one year); Ind. Code § 9-30-15.5-2 (providing that
a person found to be an HVSO shall be sentenced to an additional term of at
least one year but not more than eight years). The trial court sentenced
Freeman to two years for the Level 6 felony, enhanced by five years for the
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HSO finding, for a total of seven years in prison—three-and-a-half years less
than the maximum.
[10] The nature of the offense is, for the most part, unremarkable. Freeman
operated a vehicle with an alcohol concentration equivalent to 0.226 gram of
alcohol per 100 milliliters of his blood, which is significantly higher than the
0.15 required for the conviction. But as Freeman points out on appeal, there
was “no damage to property or persons.” Appellant’s Br. p. 16. Freeman’s
character, though, is sufficient, standing alone, to support his seven-year
sentence. This is Freeman’s twenty-fourth conviction—and fifth drunk-driving
conviction. For his convictions, the courts have employed a wide array of
sentencing options, such as prison time (including a ten-year sentence), jail
time, suspended prison and jail time, probation, fines, community service,
license suspensions, home detention, and substance-abuse treatment. He has
had his probation revoked three times and his home detention revoked once. In
addition, he was out on bond when he committed this offense. Despite all the
opportunities that the courts have given Freeman to reform his conduct, he has
squandered them all.
[11] Nevertheless, Freeman claims that there are redeeming aspects to his character
that warrant revising “his sentence downward and/or includ[ing] a suspended
portion to allow him a chance at rehabilitation.” Id. at 18. He highlights taking
care of his sick mother and two children, being employed for two years, and
being “a good neighbor.” However, as the trial court remarked at sentencing:
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Because if in fact he is a great neighbor, and if he is in fact a great
and responsible dad, he wouldn’t be here. And so he is the one
that chose to put all of that at risk and sacrifice his status as a
good neighbor, his status as a caretaker for his mother who needs
him desperately, his status as a caretaker for his two (2) children
ten (10) and fourteen (14) years old, and all of those other things
by what he chose to do.
Tr. Vol. II p. 68. We agree with the trial court’s observation on this point.
Accordingly, we conclude that Freeman’s casual and continued disregard of the
law supports his less-than-maximum sentence of seven years.
[12] Affirmed.
May, J., and Altice, J., concur.
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