Anthony W. Dager v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 16 2016, 8:25 am
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
Jeremy K. Nix Gregory F. Zoeller
Matheny Hahn Denman & Nix, LLP Attorney General
Huntington, Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony W. Dager, February 16, 2016
Appellant-Defendant, Court of Appeals Cause No.
90A04-1508-CR-1210
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Plaintiff. Kiracofe, Judge
Trial Court Cause No.
90C01-1504-F4-2
Barnes, Judge.
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Case Summary
[1] Anthony Dager appeals his thirty-year sentence for three counts of Level 4
felony operating a motor vehicle with a blood alcohol concentration (“BAC”)
of .15 or more and causing death. We affirm.
Issue
[2] The sole issue before us is whether Dager’s sentence is inappropriate.
Facts
[3] On the evening of April 3, 2015, and continuing into the early morning hours of
April 4, Dager consumed a large quantity of vodka at a friend’s house. At
about 4:45 a.m. on April 4, Dager was driving to work near Ossian when he
crossed the center line of State Road 1 and struck another vehicle head on. The
three occupants of the other vehicle—Rebecca Prentice, Paul Penrod, and
Karen Smith—were killed in the accident. Blood testing after the accident
revealed that Dager had a BAC of between .216 and .262.
[4] On April 7, 2015, the State charged Dager with three counts of Level 4 felony
operating a vehicle with a BAC of .15 or more and causing death, and three
counts of Level 5 felony operating a vehicle while intoxicated and causing
death. On June 24, 2015, Dager pled guilty to the three Level 4 felony counts
and the State dismissed the Level 5 felony counts. Sentencing was left to the
trial court’s discretion. The trial court imposed a sentence of ten years for each
count, to be served consecutively for a total of thirty years executed, and
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ordered payment of restitution to the families of Prentice, Penrod, and Smith
for burial and medical expenses. Dager now appeals.
Analysis
[5] Dager contends that his thirty-year sentence is inappropriate under Indiana
Appellate Rule 7(B) in light of his character and the nature of the offenses. We
now assess whether Defendant’s sentence is inappropriate under Appellate Rule
7(B) in light of his[her] character and the nature of the offense. Although Rule
7(B) does not require us to be “extremely” deferential to a trial court’s
sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also
understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.” Id.
[6] The principal role of Rule 7(B) 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 “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on 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
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given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[7] Regarding Dager’s character, he notes that he pled guilty within a relatively
short time after being charged and without the benefit of a sentencing cap,
which reflects positively upon his character. See Bass v. State, 974 N.E.2d 482,
485 (Ind. Ct. App. 2012). Dager also points to his service in the Indiana
National Guard and honorable discharge as evidence of positive character.
However, while “service to our country is a commendable act,” it is not
necessarily entitled to consideration in sentencing. See Harman v. State, 4
N.E.3d 209, 218-19 (Ind. Ct. App. 2014), trans. denied. Dager also contends
that he came from a family with substance abuse problems and where physical
abuse was prevalent. Generally, however, evidence of a difficult childhood
warrants little consideration in sentencing. See Bethea v. State, 964 N.E.2d 255,
266 (Ind. Ct. App. 2012), summarily aff’d in relevant part, 983 N.E.2d 1134, 1146
n.2.
[8] Counterbalancing these circumstances is the fact that Dager was on parole for
the offense of Class D felony sexual battery when he committed these offenses.
Dager had originally received a suspended sentence for that offense, but he had
his probation revoked. Dager had been on parole for only about two months
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when he committed these offenses. He also has a prior conviction for Class B
misdemeanor public intoxication.
[9] As for the nature of the offenses, Dager killed three persons while driving with a
BAC well in excess of not only the minimum legal limit of .08, but the
enhanced level of .15 as well. Dager contends that his BAC was only .16, but
the record indicates that an earlier test done at the hospital revealed a BAC of
between .216 and .262. Perhaps most importantly, the existence of multiple
victims in this case clearly warrants the imposition of consecutive sentences, as
has been repeatedly held by our courts. “Consecutive sentences reflect the
significance of multiple victims.” Pittman v. State, 885 N.E.2d 1246, 1259 (Ind.
2008) (citing McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)).
[10] In sum, while there are some indicators of positive character on Dager’s part, it
is far from an unblemished character, particular given his commission of these
offenses while still on parole for an earlier offense for which his probation had
been revoked. The nature of the offenses is egregious, given the number of
victims and Dager’s BAC. As such, we cannot say that the imposition of three
consecutive ten-year sentences is inappropriate.
Conclusion
[11] Dager’s thirty-year sentence is not inappropriate. We affirm.
[12] Affirmed.
Robb, J., and Altice, J., concur.
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