Brooke Tubbs v. State of Indiana

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.
May 30 2014, 10:48 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAUL J. PODLEJSKI GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BROOKE TUBBS, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1309-CR-771
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Angela Warner Sims, Judge
Cause No. 48C01-1206-FD-1118
May 30, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Brooke Tubbs (“Tubbs”) pleaded guilty in Madison Superior Court to operating a
vehicle while intoxicated (“OWI”), a Class D felony; and driving while suspended, a
Class A misdemeanor.1 Tubbs appeals the trial court’s sentencing order arguing that her
thirty-six month sentence, eighteen months executed at the Department of Correction and
eighteen months suspended to probation, is inappropriate in light of the nature of the
offense and character of the offender.
We affirm.
Facts and Procedural History
On June 14, 2012, Tubbs was pulled over at approximately 12:10 a.m. after
Indiana State Trooper Brad Quakenbush noticed Tubbs weaving between lanes and
improperly using a turn signal. Once pulled over, Trooper Quakenbush noticed Tubbs
had slurred speech and glassy eyes. Tubbs failed three field sobriety tests and submitted
to a chemical breath test at 12:57 a.m., which found an alcohol concentration of 0.13.
Tubbs was subsequently charged with operating a vehicle while intoxicated (“OWI”), a
Class D felony; and driving while suspended, a Class A misdemeanor.
On April 29, 2013, Tubbs, in the presence of her attorney, entered into an open
guilty plea to all counts. The trial court accepted the plea of guilty and ordered that
Tubbs be evaluated for participation in Drug Court. Tubbs admission to the Drug Court
program was denied. After considering Tubbs’s history of criminal substance abuse,
which includes six misdemeanors and two felonies, as well as a subsequent OWI arrest
1
Tubbs was also charged with OWI endangering a person, a Class A misdemeanor; and operating a
vehicle with an alcohol concentration equivalent of .08 or more, a Class C misdemeanor. Both charges
were merged with the OWI at sentencing.
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within twenty-four hours of the instant offense, the trial court sentenced her to serve
thirty-six months, eighteen months executed at the Department of Correction and
eighteen months suspended to probation. Tubbs now appeals the appropriateness of her
sentence.
Discussion and Decision
Under Indiana Appellate Rule 7(B), we 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.” Although we may review and revise a sentence, “[t]he principal role of
appellate review should be to attempt to leaven the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing statutes,
but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). We give “deference to a trial court’s sentencing decision,
both because Rule 7(B) requires us to give due consideration to that decision and because
we understand and recognize the unique perspective a trial court brings to its sentencing
decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied
(quoting Stewart v. State, 866 N.E.2d 856, 866 (Ind. Ct. App. 2007)) (internal quotation
marks omitted).
When we review the appropriateness of a sentence, we consider “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, 895 N.E.2d at 1224. The defendant
has the “burden to persuade us that the sentence imposed by the trial court is
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inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010).
Here, the trial court ordered Tubbs to serve a thirty-six month sentence: eighteen
months executed at the Department of Correction and eighteen months suspended to
probation.2 While Tubbs’s three-year sentence is the maximum length of sentence that
may be imposed for a Class D felony conviction, it is not the maximum possible sentence
of three years, all executed in the Department of Correction. Indeed, when reviewing
sentences, we are not “to consider only the appropriateness of the aggregate length of the
sentence without considering also whether a portion of the sentence is ordered
suspended.” Davidson v. State, 926 N.E.2d 1023, 1024. (Ind. 2010).
This sentence is not inappropriate in light of the nature of the offense. In fact,
Tubbs did not argue that the trial court’s sentence is inappropriate due to the nature of her
offense. But aside from driving with a suspended license, there are no particularly
egregious circumstances of the offense. Thankfully, no individuals were harmed, and no
property was damaged.
This sentence is also not inappropriate in light of the character of the offender.
Tubbs argues that her full sentence should be served through in-home detention.
However, it can be inferred from the Drug Court’s refusal to accept her into its program
that she is not a good candidate for alternative correction programs other than
incarceration. Twenty-eight year old Tubbs has struggled with substance abuse since
sixteen years of age, and in the ensuing twelve years, she has been convicted of six
2
See Ind. Code § 35-50-2-7 (“A person who commits a Class D felony shall be imprisoned for a fixed
term of between six (6) months and three (3) years, with the advisory sentence being one and one-half (1
1/2) years”). The trial court also sentenced Tubbs to twelve months for Class A misdemeanor driving
while suspended, but ordered the sentences to be served concurrently.
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misdemeanors and two felonies. Her misdemeanors include possession of paraphernalia,
possession of marijuana, public intoxication, battery, a prior OWI, and a prior driving
while suspended. In 2008, Tubbs was convicted of possession of cocaine and
maintaining a common nuisance. All previous sentences were fully suspended to
probation but failed to rehabilitate Tubbs.
The chief mitigating factor available to the trial court was Tubbs’s acceptance of
responsibility, signified by an open guilty plea, as well as by the steps she took to enter a
treatment facility for her addiction and mental health. Tubbs also claims that she is
remorseful, but in discussing her remorse, Tubbs stated only that, “My damn luck sucks.”
Appellant’s App. p. 32. And her claim of remorsefulness is belied by yet another arrest
for OWI less than 24 hours after her arrest in the instant case. Finally, and perhaps most
tellingly, Tubbs reported for her pre-sentence investigation interview under the influence
of unprescribed drugs.3
After reviewing Tubbs’s criminal history, the trial court rightly observed that “the
aggravating circumstances do outweigh the mitigating circumstances in this this case.”
Tr. p. 33. Tubbs has a history of substance abuse and has not demonstrated the ability to
rehabilitate herself through less-structured community correction services.
For all of these reasons, we conclude that Tubbs thirty-six month sentence,
eighteen months executed at the Department of Correction and eighteen months
suspended to probation, is not inappropriate in light of the nature of the offense and the
3
At the interview, Tubbs appeared to be intoxicated and claimed to be under the influence of prescription
suboxone and topamax. An INSPECT search indicated that no topamax prescription had been filled for
Tubbs anytime in the past year.
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character of the offender.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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