James P. Little v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 03 2018, 5:59 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
Timothy P. Broden Curtis T. Hill, Jr.
Broden Law Attorney General of Indiana
Lafayette, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James P. Little, October 3, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-666
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1707-F5-93
Tavitas, Judge.
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Statement of the Case
[1] James Little appeals his sentence, received pursuant to his guilty plea for
operating a motor vehicle after his driving privileges were forfeited for life, a
Level 5 felony. We affirm.
Issue
[2] Little raises one issue, which we restate as whether his sentence is
inappropriate.
Facts
[3] On July 22, 2017, Little drove a vehicle in Tippecanoe County. Little was
charged with operating a motor vehicle after his driving privileges were forfeited
for life, a Level 5 felony, pursuant to Indiana Code Section 9-30-10-16. Little
pleaded guilty to operating a motor vehicle after his driving privileges were
forfeited for life, a Level 5 felony, and the State agreed to dismiss a probation
revocation petition in another cause.
[4] During the guilty plea hearing, Little admitted he was operating a motor vehicle
on July 22, 2017, in Tippecanoe County, that his driving privileges were
already forfeited for life at the time he operated the vehicle, and that Little knew
they were forfeited for life at the time he operated the vehicle.
[5] At sentencing, the trial court stated:
I do have some familiarity with your history and while it is true,
as Mr. O’Brien indicated, that perhaps your criminal history
doesn’t include a lot of violent types of crimes, you are a repeat
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offender and it keeps going on and on and you keep doing the same
darn thing. I don’t know how many times I’ve seen in this record
that you’re driving while license forfeited for life . . . . And so, I’m
not sure I buy the argument that you are at a low risk to re-offend.
Your history just shows otherwise.
Tr. Vol. II p. 30. The trial court found as aggravating factors: (1) Little’s
criminal history; (2) the repetitive nature of the offense; (3) Little’s nineteen
petitions to revoke probation filed against him, with nine revocations ordered;
and (4) the fact that this offense was committed while Little was on pretrial
release on the Bartholomew County case and after Little’s failure to appear on
another case pending in Tippecanoe County. The trial court found the
following mitigating factors: (1) Little pleaded guilty and took responsibility for
his actions; (2) Little was cooperative with law enforcement; and (3) Little had
a history of employment. The trial court found the aggravators “far outweigh
the mitigating factors calling for an aggravated sentence.” Id. at 33. The trial
court sentenced Little to six years to be executed in the Indiana Department of
Correction.
Analysis
[6] Sentencing decisions are within the discretion of the trial court and are
reviewed on appeal for an abuse of discretion. See Grimes v. State, 84 N.E.3d
635, 643 (Ind. Ct. App. 2017) (citing Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)), trans denied. An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances before the court, or the reasonable, probable, and
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actual deductions to be drawn therefrom. Anglemyer, 868 N.E.2d at 490.
Indiana Appellate Rule 7(B) provides that this court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, we
find that the sentence “is inappropriate in light of the nature of the offense and
the character of the offender.” The defendant bears the burden to persuade this
court that his or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259,
1266 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006)), trans. denied.
[7] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or “if another sentence might
be more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008)).
[8] We look to the statutory ranges established for the classification for the relevant
offense. Little pleaded guilty to a Level 5 felony. The sentence for a Level 5
felony ranges from one year to six years, with an advisory sentence of three
years. Ind. Code § 35-50-2-6(b). Here, the trial court imposed a six-year
sentence.
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[9] We first review the nature of Little’s offense. Little drove a vehicle after
lifetime forfeiture of his license and admitted to doing so knowingly. He has
demonstrated disdain for the law by continuously choosing to operate a motor
vehicle despite three prior convictions for operating a motor vehicle after
forfeiture of his license for life.
[10] Next, we consider Little’s character. Little’s extensive criminal history reflects
poorly on his character. As noted in the pre-sentence investigation report
(“PSI”) and at the sentencing hearing, Little has several misdemeanor
convictions for check deception in 1996 and 1997; operating while intoxicated
in 1994, 2003, and 2004; and driving while suspended in 1993 and 1995.
Little’s felony convictions include battery on a child in 1993; two theft
convictions in 1993, one theft conviction in 1994, and one theft conviction in
1996; nine convictions for non-support of a dependent child in 1997; two theft
by check deception convictions in 1997; check fraud in 1998; forgery in 1998;
escape in 2001; fraud in 2002; habitual traffic offender in 2003 and 2004; and
operating a motor vehicle after lifetime forfeiture in 2004, 2014, and 2017.
Furthermore, Little committed the instant offense while on pretrial release in
Bartholomew County for the same offense and after Little failed to appear at
sentencing in a prior Tippecanoe County case for the same offense. To date,
Little has been convicted of seven misdemeanors and twenty-five felonies,
including multiple thefts, fraud, and forgery, all of which are considered crimes
of dishonesty. Little has had nineteen petitions to revoke probation filed
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against him, with nine revocations ordered. Little also has a history of failing
to appear. Little has a long history of thumbing his nose at the court.
[11] Little argues that “some degree of criminal history is inherent in the offense of
operating a motor vehicle after lifetime forfeiture as the statute defining that
offense is a discreet [sic], separate and independent habitual offender statute
providing for increasingly serious penalties for habitual violators of traffic
laws.” Appellant’s Br. pp. 4-5. Little’s habitual driving offenses were not the
only ones considered in his sentencing. These convictions followed two prior
convictions for this same offense in 2004 and 2014. Little continued to drive a
vehicle despite his knowledge that he should not and despite his prior
convictions for this same offense. While Little’s expression of remorse may
reflect well upon his character, the court questions his sincerity due to his
repeated convictions for the same offense. Little’s alleged remorse does not
necessarily outweigh his criminal history for purposes of sentencing. See
Brattain v. State, 891 N.E.2d 1055, 1058 (Ind. Ct. App. 2008).
[12] Little also argues that a defendant who pleads guilty deserves to have some
mitigating weight extended to the guilty plea in return. The extent to which a
guilty plea is mitigating, however, will vary from case to case. See Lavoie v.
State, 903 N.E.2d 135, 143 (Ind. Ct. App. 2009) (citing Hope v. State, 834 N.E.2d
713 (Ind. Ct. App. 2005)). It has been well established that “a plea is not
necessarily a significant mitigating factor.” Lavoie, 903 N.E.2d at 143 (citing
Cotto v. State, 829 N.E. 2d 520, 525 (Ind. 2005)). Specifically, “a guilty plea
does not rise to the level of significant mitigation where the defendant has
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received a substantial benefit from the plea or where the evidence against him is
such that the decision to plead guilty is merely a pragmatic one.” Wells v. State,
836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. Here, Little’s
outstanding probation revocation was dismissed pursuant to the plea
agreement. This dismissal was a benefit to Little. Additionally, while the trial
court did find that the guilty plea was a mitigating factor, the trial court also
found that the aggravating factors far outweighed the mitigating factors. Under
these circumstances, we are not persuaded that Little’s sentence is
inappropriate.
Conclusion
[13] Little’s sentence is not inappropriate in light of the nature of the offense or
Little’s character. We affirm.
Affirmed.
Brown, J., and Altice, J., concur.
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