Antione Nelson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Jun 02 2015, 9:15 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan W. Tanselle Gregory F. Zoeller
Capper Tulley & Reimondo Attorney General of Indiana
Brownsburg, Indiana
Jonathan R. Sichtermann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antione Nelson, June 2, 2015
Appellant-Defendant, Court of Appeals Case No.
32A04-1409-CR-454
v. Appeal from the Hendricks Superior
Court.
State of Indiana, The Honorable Karen M. Love,
Judge.
Appellee-Plaintiff.
Cause No. 32D03-1404-CM-314
Riley, Judge
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Antione D. Nelson (Nelson), appeals his sentence
following his conviction for driving while suspended, a Class A misdemeanor,
Ind. Code § 9-24-19-2 (2013).
[2] We affirm.
ISSUE
[3] Nelson raises one issue on appeal, which we restate as follows: Whether
Nelson’s sentence is inappropriate in light of the nature of the offense and his
character.
FACTS AND PROCEDURAL HISTORY
[4] At approximately 10:25 a.m. on April 25, 2013, Officer Aaron Teare (Officer
Teare) of the Plainfield Police Department observed a blue Dodge Caravan
stopped at a red light at the intersection of Stafford Road and State Road 267 in
Plainfield, Hendricks County, Indiana. Officer Teare ran a routine license plate
check on the vehicle and learned that the plate was actually registered to a
white 1999 Pontiac Bonneville and had expired eleven days earlier. As a result,
Officer Teare initiated a traffic stop.
[5] The driver of the blue van—later identified as Nelson—provided Officer Teare
with a Missouri identification card, explained that he had an Indiana
identification card on file, and admitted that he did not have proof of insurance.
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Nelson also indicated that he had an active warrant out of California for auto
theft. When Officer Teare searched Nelson’s information through the Indiana
Bureau of Motor Vehicles, the records indicated that Nelson had only a
learner’s permit, which had been suspended and subsequently expired on
September 30, 2010.
[6] On May 1, 2013, the State filed an Information, charging Nelson with Count I,
driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2. The State
also filed a Complaint and Summons, charging Nelson with Count II, operating
a vehicle without proof of financial responsibility, a Class A infraction, I.C. § 9-
25-8-2(a); Count III, learner’s permit violation, a Class C infraction, I.C. §§ 9-
24-7-4; -6; Count IV, operating a vehicle with a registration number belonging
to another vehicle, a Class C infraction, I.C. §§ 9-18-2-27(a)(1); -40(b); and
Count V, operating a vehicle with an expired license plate, a Class C infraction,
I.C. §§ 9-18-2-7(d); -40(b).
[7] On September 18, 2014, the trial court conducted a bench trial. As a defense,
Nelson insisted that he had not been driving the vehicle but was simply riding
with his friend. However, footage from Officer Teare’s dash camera clearly
revealed that Nelson was the driver. At the close of the evidence, the trial court
found Nelson guilty on all Counts. On September 22, 2014, the trial court held
a sentencing hearing. After merging Counts II through V into Count I, driving
while suspended as a Class A misdemeanor, the trial court ordered Nelson to
spend thirty days in the Hendricks County Jail and ordered the suspension of
his license for 180 days. On September 26, 2014, Nelson filed an emergency
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motion to stay his sentence pending appeal, which the trial court denied on
September 30, 2014. However, on October 8, 2014, the trial court granted
Nelson’s motion to stay the suspension of his driving privileges pending appeal.
[8] Nelson now appeals. Additional facts will be provided as necessary.1
DISCUSSION AND DECISION
[9] Nelson claims that his sentence is inappropriate based on the nature of the
offense and his character. In this case, Nelson’s sentence of incarceration for
thirty days and license suspension for 180 days was well within the statutory
parameters for a Class A misdemeanor. See I.C. § 35-50-3-2 (2013) (providing
that a Class A misdemeanor is punishable by imprisonment “for a fixed term of
not more than one (1) year”); I.C. § 9-24-19-5(a) (“In addition to any other
penalty imposed for a conviction under this chapter, the court shall recommend
that the person’s driving privileges be suspended for a fixed period of not less
than ninety (90) days and not more than two (2) years.”). Nevertheless, even
where the trial court imposes a statutorily permissible sentence, our court may
revise the sentence if, “after due consideration of the trial court’s decision,” we
1
The amended version of Indiana Administrative Rule 9 became effective as of January 1, 2015, and
requires, in part, that the “[c]omplete Social Security Numbers of living persons” be excluded from public
access. Ind. Admin. Rule 9(G)(2)(f). Here, several of the exhibits contain unredacted Social Security
Numbers. As we acquired jurisdiction over this case on October 2, 2014, prior to the applicability of
amended Administrative Rule 9(G), we would simply remind the parties to take notice of its requirements for
future compliance.
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find “that the sentence is inappropriate in light of the nature of the offense and
the character of the offender.” Ind. Appellate Rule 7(B).
[10] Whether we determine that a sentence is appropriate “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 v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). On review, we focus on the length of
the aggregate sentence and how it is to be served. Id. Ultimately, our goal is
“to attempt to leaven the outliers[] and identify some guiding principles for trial
courts and those charged with improvement of the sentencing statutes, . . . not
to achieve a perceived ‘correct’ result in each case.” Id.
[11] We first note that Nelson has already completed his thirty-day period of
incarceration. As our court previously explained,
where the principal questions at issue cease to be of real controversy
between the parties, the errors assigned become moot questions and
this court will not retain jurisdiction to decide them. Stated differently,
when we are unable to provide effective relief upon an issue, the issue
is deemed moot, and we will not reverse the trial court’s determination
where absolutely no change in the status quo will result.
Bell v. State, 1 N.E.3d 190, 192 (Ind. Ct. App. 2013). Even if we were to agree
with Nelson that a reduction of his thirty-day sentence is appropriate, it would
result in no change to the status quo. Therefore, we find that this issue is moot.
[12] Nonetheless, while “moot cases are usually dismissed, Indiana courts have long
recognized that a case may be decided on its merits under an exception to the
general rule when the case involves questions of ‘great public interest.’
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Typically, cases falling in the ‘great public interest’ exception contain issues
likely to recur.” In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App.
2002) (internal citation and quotation marks omitted). Here, Nelson does not
assert that his sentence involves a question of great public interest. Rather, he
argues that the sentence should be reduced, with the reduction to be applied “to
his pending perjury case in Hendricks County, as he was taken in[to] custody
on both this matter at hand and the pending perjury case after his sentencing
hearing.” (Appellant’s Br. p. 8). The record contains no information regarding
the pending perjury case. Furthermore, we find the fact that the trial court
imposed a sentence that is far less than the statutory maximum for a Class A
misdemeanor hardly qualifies as a matter of great public interest.
[13] On the other hand, because the trial court stayed the suspension of Nelson’s
driving privileges pending appeal, this issue is properly before our court. On
appeal, Nelson requests that we reduce the suspension of his driving privileges
from 180 days to ninety days—i.e., the statutory minimum. See I.C. § 9-24-19-
5(a). Nelson contends that he “was not engaged in dangerous, risky, reckless,
or otherwise unsafe driving” and that “he has not been in trouble for years and
that he was living on his own and raising a child.” (Appellant’s Br. pp. 6-7).
According to Nelson, these considerations warrant a lesser penalty. We
disagree.
[14] The nature of the offense is that Nelson was driving a vehicle on a learner’s
permit that was both suspended and expired. He did not have proof of
insurance, and he was using an expired license plate that was registered to
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another vehicle. As to character of the offender, we find that Nelson has a
substantial history of non-compliance with Indiana’s driving laws. In March of
2005, Nelson was issued a learner’s permit, which was suspended just two
months later for failure to pay on a seatbelt violation. In September of 2009,
Nelson renewed his learner’s permit, which was again suspended in April of
2010. Since that time, he has not held a valid license or permit; yet, he has
continued to drive. Since 2010, Nelson has been convicted of driving on that
suspended learner’s permit on six different occasions. Additionally, Nelson
was cited numerous times for failing to file insurance and for failing to appear
for a driver safety program.
[15] We find that Nelson’s habitual disregard for the law is further exhibited by the
fact that he has not attempted to resolve his outstanding auto theft warrant in
California. Moreover, unaware of the fact that Officer Teare had video-
recorded the entire traffic stop, Nelson flagrantly lied to the court about the fact
that he was the driver of the vehicle. Thus, we find that Nelson’s 180-day
license suspension is appropriate given the nature of the offense and his
character.
CONCLUSION
[16] Based on the foregoing, we conclude that Nelson’s claim that his thirty-day
sentence is inappropriate is moot; however, we conclude that his 180-day
driver’s license suspension is appropriate in light of the nature of the offense
and character of the offender.
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[17] Affirmed.
[18] Bailey, J. and Barnes, J. concur
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