Irwin McNeil Scott v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 18 2018, 6:05 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery Haupt Curtis T. Hill, Jr.
Law Office of Jeffery Haupt Attorney General of Indiana
South Bend, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Irwin McNeil Scott, October 18, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-355
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1610-F3-64
Robb, Judge.
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Case Summary and Issue
[1] Irwin Scott pleaded guilty to two counts of failure to remain at the scene of an
accident, both Level 3 felonies, and resisting law enforcement, a Level 6 felony.
The trial court sentenced Scott to an aggregate term of twenty-two years at the
Indiana Department of Correction. On appeal, we vacated one of Scott’s
convictions for failure to remain at the scene of an accident for violating double
jeopardy and remanded for resentencing on the remaining conviction. See Scott
v. State, No. 71A05-1706-CR-1225 at *2 (Ind. Ct. App. Nov. 3, 2017).
Following remand, the trial court resentenced Scott to an aggregate term of
seventeen years at the Department of Correction. Scott now appeals his
sentence, raising the sole issue of whether it is inappropriate in light of the
nature of his offense and his character. Concluding his sentence is not
inappropriate, we affirm.
Facts and Procedural History
[2] The underlying facts were set forth in Scott’s prior appeal:
On October 12, 2016, police stopped the vehicle in which Scott
and two children were passengers. The driver of the vehicle
exited to talk to the police officer, and Scott, who was
intoxicated, moved into the driver’s seat and drove away. The
police attempted to pull him over, but he kept driving for
multiple blocks, crashed into a pole, flipped the vehicle over, and
left the scene without checking if he could aid anyone or waiting
for the police to arrive. The two children each sustained serious
bodily injury as a result of the accident.
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On October 14, 2016, the State charged Scott with two counts of
failure to remain at the scene of an accident as level 3 felonies
and one count of resisting law enforcement as a level 6 felony.
On March 27, 2017, the court held a hearing, and Scott pled
guilty as charged without a plea agreement. When asked by the
court what differentiated the two counts of failure to remain at
the scene of an accident, the prosecutor indicated that there were
two separate victims.
On May 10, 2017, the court held a sentencing hearing. It
sentenced Scott to consecutive terms of ten years for each count
of failure to remain at the scene of an accident and two years for
resisting law enforcement, for an aggregate sentence of twenty-
two years.
Id. at *1.
[3] On appeal, Scott argued his convictions and sentences violated his protections
against double jeopardy. The State conceded that Scott’s two convictions for
failure to remain at the scene of an accident constitute only one offense and we
vacated one of Scott’s convictions and sentences and remanded for
resentencing. Id. at *2.
[4] On remand, Scott requested that the trial court impose the original ten-year
sentence for the remaining count of failure to remain at the scene of an
accident. The State requested that Scott receive the maximum penalty due to
the injuries sustained by two minors.
[5] The trial court found Scott’s open plea as a mitigating factor and weighed that
against the aggravating factors of Scott’s criminal history, the fact that he was
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on probation at the time of the offense, and the nature of the crime.
Concluding the aggravating factors outweighed the sole mitigating factor, the
trial court sentenced Scott to fifteen years to be served consecutively with the
two-year sentence for resisting law enforcement that was left undisturbed by
Scott’s prior appeal. Therefore, Scott was sentenced to an aggregate term of
seventeen years at the Department of Correction. Scott now appeals.
Discussion and Decision
I. Standard of Review
[6] Even when a trial court has acted within its discretion in imposing a sentence,
Article 7, sections 4 and 6 of the Indiana Constitution authorize our
independent appellate review and revision of sentences. Trainor v. State, 950
N.E.2d 352, 355 (Ind. Ct. App. 2011), trans. denied. Indiana Appellate Rule
7(B) implements that authority, providing, “The 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.” The defendant bears the burden of
persuading this court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006). This analysis “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). And finally, we emphasize that our
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role is to “leaven the outliers,” not to achieve the perceived “correct” result in
each case. Id. at 1225.
II. Improper Sentence
A. Indiana Appellate Rule 7(B)
[7] Notably, Scott argues his sentence is inappropriate solely in light of his
character. Scott provides no argument regarding the nature of his offense,
explaining that his character renders his sentence inappropriate “even when
factoring in the ‘nature of the offense,’ the age of the victims, and the other
seriousness of the injuries that the two children suffered.” Brief of Appellant at
10. In turn, the State contends Scott has waived our review by failing to
address the nature of his offense, citing Simmons v. State, 999 N.E.2d 1005, 1013
(Ind. Ct. App. 2013), trans. denied; Anderson v. State, 989 N.E.2d 823, 827 (Ind.
Ct. App. 2013), trans. denied; and Williams v. State, 891 N.E.2d 621, 623 (Ind.
Ct. App. 2008), in support of this contention. Brief of Appellee at 9.
[8] We have acknowledged that “our jurisprudence on this issue is far from
settled[.]” Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). In Reis, we
examined recent precedent including our supreme court’s decision in Shoun v.
State, where, rather than deem the defendant’s Rule 7(B) argument waived for
failing to argue both prongs, the court concluded that the defendant’s
“arguments that his character makes his . . . sentence inappropriate are not
persuasive.” 67 N.E.3d 635, 642 (Ind. 2017). We then explained:
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We continue to view [Connor v. State, 58 N.E.3d 215 (Ind. Ct.
App. 2016)]’s interpretation of Rule 7(B) as consistent with the
purpose of the rule, our constitutional prerogative from which the
rule is derived, and principles of justice. Indeed, requiring a
defendant to prove each of the prongs in order to render his
sentence inappropriate can lead to absurd results and require
defendants to mount disingenuous arguments on appeal. As we
noted in Connor, this interpretation of Rule 7(B) does not lessen a
defendant’s burden; rather, the burden may be “heightened by
the need to prove the nature of his character should overcome the
admittedly serious nature of his offense.” 58 N.E.3d at 220.
Therefore, we continue to recognize the two prongs of Rule 7(B)
to be separate inquiries that must “ultimately be balanced in
determining whether a sentence is inappropriate.” Id. at 218.
Reis, 88 N.E.3d at 1104 (footnote omitted).
[9] Most recently, our supreme court has again declined to waive a defendant’s
argument where the defendant “argued his character alone merited a lesser
sentence.” Wright v. State, No. 18S-CR-166 at page 18 (Ind. Oct. 4, 2018).
Accordingly, as we did in Reis, we reject the State’s argument that Scott has
waived review of his sentence by acknowledging the serious nature of his
offense. Therefore, we will consider both the nature of Scott’s offense and his
character in evaluating whether his sentence is inappropriate.
B. Nature of the Offense
[10] The advisory sentence is the starting point which our legislature has selected as
an appropriate sentence for the crime committed. Childress, 848 N.E.2d at
1081. Scott was convicted of failure to remain at the scene of an accident that
occurred while he was operating a vehicle while intoxicated that resulted in
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serious bodily injury, a Level 3 felony. A Level 3 felony carries a possible
sentence of three to sixteen years, with an advisory sentence of nine years. Ind.
Code § 35-50-2-5(b). Thus, Scott’s fifteen-year sentence was six years more
than the advisory sentence and one year less than the maximum sentence
allowed for a Level 3 felony.
[11] Here, all while intoxicated, Scott led police on a high-speed chase with two
eight-year-old children in the vehicle. Scott then wrecked the vehicle and fled
without providing aid to the two children who suffered serious, life-threatening
injuries. These selfish actions demonstrate a blatant disregard for both life and
the law and nothing about the particularly egregious nature of this offense leads
us to question the trial court’s near-maximum sentence.
C. Character of the Offender
[12] As discussed above, Scott contends his sentence is inappropriate in light of his
character.
The “character of the offender” portion of the standard refers to
the general sentencing considerations and the relevant
aggravating and mitigating circumstances. We assess the trial
court’s recognition or non-recognition of aggravators and
mitigators as an initial guide to determining whether the sentence
imposed was inappropriate. A defendant must still persuade the
appellate court that his or her sentence has met the
inappropriateness standard of review.
Reis, 88 N.E.3d at 1104-05 (citations omitted).
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[13] Here, the trial court found Scott’s open plea agreement was the sole mitigating
factor. As for aggravating factors, the trial court explained:
I do consider the same aggravating factors as I did before, Mr.
Scott. Your criminal history, that this is your fourth felony
conviction, that you were on felony probation at the time you
committed this offense. I take into account now there were two
separate children injured and while . . . sentencing for those two
counts was in error, I think I can take into account the fact that
there was more than the one victim of this offense. And I do still
take into account that [the second victim’s] injuries were – I think
as we talked about at the time any single one of his injuries at
that time could have reached the level of serious bodily injury or
reached – met the definition of serious bodily injury. The totality
of his injuries then was so far greater than what the [S]tate would
have to prove.
I think [the State] is right whether we say there were two victims
and that’s the aggravator, that the offense took place in the
presence of another child under twelve. However, that
aggravator is actually raised, I believe it’s an aggravating factor,
that there was another child present. That other child was
injured and that other child was a witness to and part of that
accident.
Transcript, Volume 2 at 8-9.
[14] Scott argues even though his prior convictions “can be considered an
aggravating factor, to order him to a maximum, executed sentence is
inappropriate given that his criminal history is not extensive, even when
factoring in the ‘nature of the offense,’ the age of the victims, and the other
seriousness of the injuries the two children suffered.” Br. of Appellant at 10.
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Thus, it appears the thrust of Scott’s argument is that his “criminal history is
not extensive[.]” Id.
[15] At only twenty-seven years old, however, Scott’s criminal history includes three
misdemeanor convictions, three felony convictions, and Scott was on felony
probation at the time of the offense in question. As we often note, even a minor
criminal record reflects poorly on a defendant’s character, Rutherford v. State,
866 N.E.2d 867, 874 (Ind. Ct. App. 2007), and Scott’s criminal history is more
than minor. Therefore, we find nothing about Scott’s criminal history that
renders his near-maximum sentence inappropriate.
[16] Finally, Scott emphasizes his “substantial history of substance abuse.” Br. of
Appellant at 9. But besides listing several examples, Scott never explains how
this fact renders his sentence inappropriate. In any event, we have explained
that substance abuse may be an aggravating circumstance where the defendant
is aware of a substance abuse problem but has failed to take appropriate steps to
treat it, as is the case here. Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App.
2009), trans. denied. Accordingly, as with the nature of Scott’s offense, we find
nothing about Scott’s character rendering his sentence inappropriate.
Conclusion
[17] We conclude Scott’s sentence is not inappropriate in light of the nature of his
offenses or in light of his character. We therefore affirm.
[18] Affirmed.
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Baker, J., and May, J., concur.
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