William Epperly v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Dec 15 2017, 7:42 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. Elkin Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Epperly, December 15, 2017
Appellant-Defendant, Court of Appeals Case No.
34A05-1704-CR-812
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable Douglas A. Tate,
Appellee-Plaintiff. Judge
Trial Court Cause No.
34D03-1601-CM-61
Pyle, Judge.
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Statement of the Case
[1] William Epperly (“Epperly”) appeals his sentence, following his guilty plea to
Class A misdemeanor operating a vehicle while intoxicated and endangering a
person1 and Class A misdemeanor leaving the scene of an accident with bodily
injury.2 The trial court imposed a one-year sentence for each conviction and
ultimately ordered them to be served concurrently to each other. Epperly
argues that: (1) the trial court abused its discretion by failing to identify and
weigh aggravating and mitigating circumstances and by ordering him to serve
his two sentences consecutively; and that (2) his aggregate one-year sentence is
“manifestly unreasonable.”
[2] We conclude that the trial court did not abuse its discretion because it was not
required to articulate and balance aggravating and mitigating circumstances
when imposing a sentence on a misdemeanor conviction. Furthermore, the
trial court did not impose consecutive sentences; thus, Epperly’s argument that
it abused its discretion by ordering consecutive sentences is without merit.
Epperly’s last argument, which we restate as whether his sentence is
inappropriate, is waived based on Epperly’s lack of cogent argument. Waiver
notwithstanding, Epperly’s sentence is not inappropriate.
[3] We affirm.
1
IND. CODE § 9-30-5-2(b).
2
I.C. § 9-26-1-1.1.
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Issues
1. Whether the trial court abused its discretion when sentencing
Epperly.
2. Whether Epperly’s sentence is inappropriate.
Facts3
[4] In January 2016, Epperly, who had been drinking vodka, drove his truck into a
car driven by Erin Wetzold (“Wetzold”), injuring her. Epperly left his truck on
the street and fled the scene on foot. Wetzold and another witness saw Epperly
walk into a nearby mobile home park. When the police arrived on the scene,
one of the officers found an empty bottle of vodka on the floor board of
Epperly’s truck. Another officer went to the mobile home park and found
Epperly, who smelled of alcohol and refused to take a portable breath test and a
chemical test. Epperly threatened officers as they handcuffed him. The officers
took Epperly back to the scene of the collision, and the witness positively
identified him. As the police transported Epperly to the hospital to have a
blood draw, he urinated on himself. Once at the hospital, Epperly resisted
having the blood draw, and the officers had to physically restrain him.
[5] Thereafter, the State charged Epperly with Count I, Class A misdemeanor
operating a vehicle while intoxicated; Count II, Class A misdemeanor resisting
3
The record on appeal does not contain a copy of Epperly’s guilty plea transcript. Therefore, the facts
regarding Epperly’s crimes are taken from the probable cause affidavit. The chronological case summary
reveals that, during his guilty plea hearing, Epperly stipulated that the probable cause affidavit applied to the
charges to which he was pleading guilty.
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law enforcement; Count III, Class A misdemeanor leaving the scene of an
accident with bodily injury; Count IV, Class A infraction operating a motor
vehicle without financial responsibility; and Count V, habitual substance
offender.
[6] In February 2017, Epperly pled guilty to Class A misdemeanor operating a
vehicle while intoxicated and endangering a person and Class A misdemeanor
leaving the scene of an accident with bodily injury, and he admitted that he had
committed the Class A infraction operating a motor vehicle without financial
responsibility.4
[7] At Epperly’s sentencing hearing, the State read into evidence Wetzold’s victim-
impact statement. In this statement, Wetzold asserted that Epperly had totaled
her car, caused her to have “excruciating” pain, and left her with “lifelong
injuries[,]” including “nerve pain and horrible back pain.” (Tr. Vol. 2 at 6).
The State argued that Epperly should be sentenced to the maximum time
allowable based on Epperly having four prior OWIs and having a blood alcohol
content of .17 at the time of his offenses. The trial court imposed one (1) year
sentences for each of Epperly’s Class A misdemeanor convictions (Counts I and
III) and ordered them to be served consecutively at the county jail. However,
the trial court later amended its sentencing order “to show that Counts I and III
4
Prior to Epperly’s guilty plea, the State dismissed the Class A misdemeanor resisting law enforcement
charge, and it dismissed the habitual substance offender allegation when Epperly pled guilty to the remaining
charges.
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are to run concurrently.” (App. Vol. 2 at 10). The trial court also imposed a
fine for Epperly’s infraction and suspended his driver’s license for one year.
Epperly now appeals.
Decision
[8] On appeal, Epperly contends that: (1) the trial court abused its discretion when
sentencing him; and (2) his sentence is inappropriate. We will review each
argument in turn.
1. Abuse of Discretion
[9] Epperly contends that the trial court abused its discretion by failing to identify
and weigh aggravating and mitigating circumstances and by imposing
consecutive sentences on his two misdemeanor convictions.
[10] As for Epperly’s argument regarding aggravating and mitigating circumstances,
our Court has repeatedly explained that a trial court is not required to identify
and weigh aggravating and mitigating circumstances when imposing a sentence
for misdemeanor convictions. See Stephenson v. State, 53 N.E.3d 557, 561 (Ind.
Ct. App. 2016) (citing Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct. App.
2006), clarified on reh’g) (explaining that a trial court is not required to identify
and weigh aggravating and mitigating circumstances when imposing a sentence
for a misdemeanor conviction because misdemeanor sentencing statutes do not
provide for an advisory sentence but, instead, provide for a maximum allowable
sentence). Therefore, Epperly’s argument is without merit. See, e.g., Stephenson,
53 N.E.3d at 561.
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[11] Equally without merit is Epperly’s consecutive sentencing argument. Here, the
trial court initially ordered Epperly’s sentences to be served consecutively.
However, as noted by Epperly in his statement of facts, the trial court thereafter
amended its sentencing order and clarified that the sentences would be served
concurrently. Thus, Epperly’s argument is without merit.
2. Inappropriate Sentence
[12] Epperly argues that his sentences for his Class A misdemeanor operating a
vehicle while intoxicated and endangering a person and his Class A
misdemeanor leaving the scene of an accident with bodily injury convictions
are “manifestly unreasonable.” (Epperly’s Br. 8, 12).
[13] We note that the “manifestly unreasonable” standard has been obsolete since
2001. See Marcus v. State, 27 N.E.3d 1134, 1135 (Ind. Ct. App. 2015). Thus, we
restate the issue as whether Epperly’s sentence is inappropriate. We may revise
a sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). The defendant has the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review
“should be to attempt to leaven the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing
statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B) analysis is not
to determine whether another sentence is more appropriate but rather whether
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the sentence imposed is inappropriate.” Conley v. State, 972 N.E.2d 864, 876
(Ind. 2012) (internal quotation marks and citation omitted), reh’g denied.
[14] Here, Epperly was convicted of two Class A misdemeanors. The sentencing
statute for Class A misdemeanors provides that “[a] person who commits a
Class A misdemeanor shall be imprisoned for a fixed term of not more than one
(1) year[.]” I.C. § 35-50-3-2. The trial court imposed concurrent sentences of
one (1) year executed in the county jail for each of Epperly’s Class A
misdemeanor convictions. Thus, the trial court imposed an aggregate one-year
sentence.
[15] Epperly fails to address how the nature of his offenses and his character render
his sentence inappropriate.5 Because he has failed to provide relevant, cogent
argument, we conclude that he has waived this sentencing challenge. See Ind.
Appellate Rule 46(A)(8)(a) (requiring an appellant to support an argument with
cogent argument). See also Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App.
2016) (waiving a defendant’s sentencing argument where he failed to provide a
cogent argument).
[16] Waiver notwithstanding, Epperly’s sentence is not inappropriate. The nature of
Epperly’s offenses involved him driving while drunk, running his truck into
Wetzold’s car and injuring her, and then fleeing the scene of the accident on
5
Epperly merely argues that the trial court should have found certain mitigating circumstances. However, as
noted above, the trial court was not required to identify and weigh aggravating and mitigating circumstances
when imposing a sentence for misdemeanor convictions. See Stephenson, 53 N.E.3d at 561.
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foot. Once the police apprehended and arrested Epperly, he threatened the
officers and refused to take a portable breath test and a chemical test. Epperly’s
aggressive actions continued at the hospital where the police took him for a
blood draw. The officers had to physically restrain him in order to get the
blood draw, which, according to the State’s sentencing argument, revealed that
Epperly had a blood alcohol content of .17.
[17] Turning to Epperly’s character, we note that Epperly concedes that his
“criminal history is extensive.” (Epperly’s Br. 7). Epperly, who was fifty-nine
years old at the time of sentencing, has a criminal history that spans from 1980
to his present offenses and includes time served in Indiana Department of
Correction. At the time of his current offenses, he was on probation from
convictions in three separate causes for the following offenses: (1) Level 6
felony operating a vehicle after being an habitual traffic offender; (2) Level 6
felony criminal reckless committed with a deadly weapon and Class B
misdemeanor public intoxication endangering the person’s life; and (3) Level 6
felony residential entry. Additionally, Epperly has multiple alcohol-related
convictions, including public intoxication and operating a vehicle while
intoxicated. Epperly’s character reveals a disregard for the law and the
authority of the courts.
[18] Epperly has not persuaded us that his aggregate one-year executed sentence is
inappropriate. Therefore, we affirm the sentence imposed by the trial court.
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[19] Affirmed.
Riley, J., and Robb, J., concur.
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