Frederick Tickle 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 Sep 05 2019, 9:52 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
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Michael Vo Sherman
Certified Legal Intern
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Frederick Tickle, September 5, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-622
v. Appeal from the
Decatur Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Matthew D. Bailey, Judge
Trial Court Cause No.
16D01-1706-F6-623
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019 Page 1 of 6
Case Summary
[1] Frederick Tickle pled guilty to Level 6 felony operating a vehicle while
intoxicated (OWI) with a prior OWI conviction, Level 6 felony operating a
vehicle as a habitual traffic violator, and being a habitual vehicular substance
offender (HVSO). Tickle now appeals, arguing that his five-year sentence is
inappropriate. We affirm.
Facts and Procedural History
[2] Around 11 a.m. on June 23, 2017, Greensburg Police Department Officer
Casey Jones was on patrol at the intersection of East Main Street and South
Michigan Avenue when he saw a gray Chevrolet drive east through the
intersection. Officer Jones saw the car drift left of center and that another car
traveling west had to swerve to avoid a head-on collision. The driver, later
identified as Tickle, then drove over a curb, into the grass, and onto a sidewalk.
By then, Officer Jones had activated his emergency lights and followed Tickle.
Tickle continued down the street and drove into a residential driveway. He
then crossed the driveway and crashed into some bushes and trees near the
driveway. Eventually, Officer Jones apprehended Tickle and discovered that
Tickle’s driving status was “conditional.” Appellant’s App. Vol. II p. 15. That
is, Tickle’s driver’s license was suspended for being a habitual traffic violator,
but he could drive to and from work. Officer Jones saw that Tickle was
disoriented and suspected that he was suffering from a medical issue. EMS
Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019 Page 2 of 6
arrived and took Tickle to the hospital for further evaluation. At the hospital,
Tickle tested positive for amphetamine, cocaine, and marijuana.
[3] The State charged Tickle with Level 6 felony OWI with a prior OWI conviction
in July 2014 and Level 6 felony operating a vehicle as a habitual traffic violator.
The State also alleged that Tickle is an HVSO based on February 2008 and
September 2013 OWI convictions. In July 2018, Tickle pled open, i.e., without
the benefit of a plea agreement, to all three charges. See Tr. p. 8. At the guilty-
plea hearing, the trial court became concerned about Tickle’s competency after
he made some “incoherent” statements. Id. at 22. Thereafter, the trial court
ordered a competency evaluation. During the evaluation, Tickle’s medical
records were reviewed and revealed that when he was eighteen years old, he
was involved in a serious car accident. He was in a coma for two months and
required surgery to repair brain damage that had occurred. After Tickle
recovered, he continued to experience symptoms caused by his brain injury and
was diagnosed as having mild neurocognitive disorder, alcohol-use disorder,
cannabis-use disorder, and stimulant-use disorder. See Appellant’s App. Vol. II
p. 53. In November 2018, the trial court found that although he previously
suffered a traumatic brain injury, the now fifty-year-old Tickle was competent.
See id. at 33.
[4] In February 2019, the trial court accepted Tickle’s guilty plea and held a
sentencing hearing. At the hearing, the trial court identified one aggravator:
Tickle’s long history of drunk driving. The pre-sentence investigation report
revealed that Tickle had five prior OWIs and that in each case he was ordered
Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019 Page 3 of 6
to complete a treatment program as part of his sentence. Regarding mitigators,
the trial court considered Tickle’s guilty plea and his past rehabilitation efforts,
including efforts he made through Center Stone and Celebrate Recovery, and
that in May 2018 he completed Vocational Rehab. The trial court sentenced
him to five years for OWI with a prior OWI conviction (one year plus four
years for being an HVSO) and a concurrent term of one year for operating a
vehicle as a habitual traffic violator, with four-and-a-half years executed and
180 days suspended to probation.
[5] Tickle now appeals his sentence.
Discussion and Decision
[6] Tickle contends that his five-year sentence is inappropriate and asks us to revise
it to all “home detention.” Appellant’s Br. p. 9. 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.” “Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019 Page 4 of 6
persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016).
[7] The parties dispute what sentence Tickle faced, but it was at least ten-and-a-half
years and as much as twelve years. In any event, Tickle concedes that his
sentence “falls well short of the maximum sentence in this case.” Appellant’s
Br. p. 11. With regard to the nature of the offenses, Tickle, who had a
conditional license, consumed amphetamine, cocaine, and marijuana and then
drove into oncoming traffic, over sidewalks, and through residential yards
before crashing into bushes and trees.
[8] As for Tickle’s character, Tickle concedes that his criminal history is “terrible.”
Tr. p. 22. Indeed, his PSI shows that this is his sixth OWI offense. But he
claims that his criminal history “is directly related to his mental health issues.”
Appellant’s Br. p. 12. However, previous courts have given him numerous
opportunities to address his mental-health issues by ordering alternative
sentences that included treatment and rehabilitation. For example, in his five
previous OWI cases, Tickle was ordered to complete four separate court-
ordered treatment programs. We understand that the brain injury Tickle
suffered when he was eighteen years old has caused hardship in his life, but the
trial court considered the efforts he made through Center Stone and Celebrate
Recovery and that he recently completed Vocational Rehab as a mitigating
factor when it determined his sentence. As such, we cannot say that Tickle’s
sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019 Page 5 of 6
[9] Affirmed.
Riley, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-622 | September 5, 2019 Page 6 of 6