Toni McClellan 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 Aug 28 2019, 9:18 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Toni McClellan, August 28, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-11
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Elizabeth A. Christ,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G24-1805-F6-16615
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 1 of 6
Case Summary
[1] Toni McClellan (“McClellan”) pleaded guilty to Operating a Vehicle While
Intoxicated, Endangering a Person, With a Prior Conviction, a Level 6 felony. 1
On appeal, she presents the issue of whether her sentence is inappropriate. We
affirm.
Facts and Procedural History
[2] On May 7, 2018, Indiana State Police Trooper Cameron Bottema responded to
a report of a single vehicle crash near Franklin and Indian Creek Roads in
Marion County. McClellan was the sole occupant of the vehicle. She
submitted to a chemical blood alcohol test and was found to have a blood
alcohol content of 0.241 grams of alcohol per 210 liters of breath.
[3] On December 5, 2018, McClellan pleaded guilty to Operating a Vehicle While
Intoxicated, Endangering a Person, with a Prior Conviction. Pursuant to the
plea agreement, the State moved to dismiss a charge of Driving While
Intoxicated, with a blood alcohol content of 0.15 or greater, and agreed to forgo
filing a habitual substance offender allegation against McClellan.
[4] On the same date, McClellan received a sentence of two and one-half years
(910 days). She was ordered to serve 180 days at the Marion County Jail and
1
Ind. Code §§ 9-30-5-2 - 3.
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185 days in Marion County Community Corrections Home Detention, with
545 days suspended to probation. Additionally, the trial court advised
McClellan that, upon successful completion of her probationary term,
alternative minimum sentencing might be implemented. McClellan now
appeals.
Discussion and Decision
[5] Pursuant to Indiana Code Section 35-50-2-7, a person who commits a Level 6
felony shall be imprisoned for a fixed term of between six months and two and
one-half years, with an advisory sentence of one year. Finding McClellan’s
criminal history to be an aggravating factor, the trial court imposed the
maximum sentence of two and one-half years, but then suspended 545 days to
probation.2 The prior history consisted of one forgery conviction and four
driving while intoxicated convictions. McClellan contends that her sentence is
inappropriate, because she is allegedly a survivor of domestic abuse and no-one
was injured in the single vehicle accident.
[6] Under Indiana Appellate Rule 7(B), this “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 light of the nature of the offense
and the character of the offender.” In performing our review, we assess “the
2
The trial court stated that it had given consideration to the fact that McClellan had a difficult and painful
divorce the prior year.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-11 | August 28, 2019 Page 3 of 6
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 v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is
an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve
our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d
157, 165 (Ind. 2017).
[7] The “considerable deference” given to the trial court’s sentencing judgment
“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) (citing Cardwell, 895 N.E.2d at 1222). In our
review, we can consider whether a portion of the sentence was suspended or
otherwise crafted to provide leniency. Davidson v. State, 926 N.E.2d 1023, 1025
(Ind. 2010).
[8] The nature of the offense involves the details and circumstances of the crime
and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.
2017). Here, McClellan operated a vehicle with a blood alcohol content three
times the legal limit.3 She swerved to avoid traffic and her vehicle left the
roadway, endangering herself and potentially other motorists. As she observes,
3
See Ind. Code § 9-30-5-1.
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no injuries were reported from the single vehicle accident. Notably, however,
McClellan was not charged with, or sentenced for, an offense having an
element of bodily injury.
[9] The character of the offender is found in what courts learn of the offender’s life
and conduct. Id. McClellan’s decision to plead guilty indicates some
acceptance of responsibility for her actions; however, she also received a
significant benefit when one charge was dismissed and the State agreed to forgo
a habitual substance offender allegation. McClellan advised the trial court that
she had been harassed and abused by a former spouse, and the harassment had
ceased upon the former spouse’s remarriage. But McClellan had been offered
rehabilitative services in the past, without success. She was barely released
from probation on her fourth driving while intoxicated conviction when she
committed the instant fifth offense. This was her third such conviction in two
years. Even so, she was afforded additional leniency in the structure of the
sentence, which includes home detention and probation.
[10] Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the sentence does not
warrant appellate revision. Accordingly, we decline to disturb the sentence
imposed by the trial court.
Conclusion
[11] The sentence imposed upon McClellan is not inappropriate.
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[12] Affirmed.
Najam, J., and May, J., concur.
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