Mary Davis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Nov 04 2016, 10:32 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mary Davis, November 4, 2016
Appellant-Defendant, Court of Appeals Case No.
84A01-1605-CR-1214
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael Rader,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D05-1404-FD-1038
Vaidik, Chief Judge.
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Case Summary
[1] Mary Davis appeals her three-year sentence for operating a vehicle while
intoxicated as a Class D felony, arguing that it is inappropriate in light of the
nature of the offense and her character. We disagree and affirm.
Facts and Procedural History
[2] In April 2014, Davis was seen driving erratically by police in Terre Haute and
was arrested and charged with operating while intoxicated (OWI). Because she
had been convicted on a separate OWI charge just three weeks earlier, the new
charge was a Class D felony. See Ind. Code Ann. § 9-30-5-3 (West 2012). In
October 2014, Davis and the State entered into an Adult Mental Health Court
Deferral Agreement (“Deferral Agreement”), pursuant to which Davis pled
guilty to the charge but was not sentenced and would have the charge dismissed
if she completed the Adult Mental Health Program under the supervision of the
Vigo County Mental Health Court.
[3] In January 2016, Davis was convicted in Clay County of three new crimes she
committed in late 2015: domestic battery as a Level 6 felony, OWI as a Level 6
felony, and leaving the scene of an accident as a Class B misdemeanor. As a
result, the State filed a petition to revoke the Deferral Agreement in the Vigo
County case. The Vigo County court granted the motion, entered a judgment
of conviction based on Davis’ earlier guilty plea, and imposed the maximum
sentence of three years in prison. The court ordered that Davis “be placed in
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Purposeful Incarceration in the Therapeutic Community” and said that it
would consider a sentencing modification if Davis “successfully completes a
Department of Correction Therapeutic Community.” Appellant’s App. p. 55.
[4] Davis now appeals.
Discussion and Decision
[5] Davis asks us to reduce her sentence pursuant to Indiana Appellate Rule 7(B),
which provides that an appellate 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.” Because we generally defer to the judgment of trial
courts in sentencing matters, defendants have the burden of persuading us that
their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.
Ct. App. 2016). “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)).
[6] Davis contends that her three-year sentence—the maximum allowed for a Class
D felony, see Ind. Code Ann. § 35-50-2-7 (West 2012)—is inappropriate because
her offense was an unremarkable OWI and because she is a product of her
circumstances, not a person of poor character. We agree that there was nothing
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particularly egregious about Davis’ offense—she made “unsafe lane
movements,” struck the curb, and failed to use her turn signal, and her BAC
was .12 percent. Appellant’s App. p. 35. We also acknowledge her sad
personal history. According to her pre-sentence investigation report, Davis was
sexually and physically abused by her stepfather, was sexually abused by her
brothers and stepbrother, first experimented with alcohol at age five and drugs
at age thirteen, attended school until only ninth grade, has been married and
divorced eight times, had all three of her children taken from her, has no
friends, has no assets or bank accounts, has a history of mental illness, and has
attempted suicide.
[7] Unfortunately for Davis, she did not leave the trial court with much of a choice
here. This was her seventh OWI conviction, the sixth having come just three
weeks earlier. She had a total of fourteen prior criminal convictions, including
seven felonies. She was given an opportunity to participate in a mental-health
program and have this case dismissed entirely, and while she apparently did
well for a year, she then committed two new felonies, including yet another
OWI. It is also undisputed that Davis has a history of failed attempts at
probation, community corrections, and alcohol and drug-treatment programs.
Finally, it may well be that Davis will not have to serve the full three years
imposed by the trial court, since the court made clear that it would consider a
sentencing modification if Davis successfully completes a Department of
Correction Therapeutic Community. In light of Davis’ criminal history and the
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realistic possibility of a sentence reduction, we cannot say that the sentence
imposed by the trial court is inappropriate.
[8] Affirmed.
Baker, J., and Najam, J., concur.
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