Dominique L. White v. State of Indiana

Aug 07 2013, 5:44 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:
DAVID M. ZENT GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DOMINIQUE L. WHITE, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1212-CR-541
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1201-CM-564
August 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Dominique L. White (“White”) pleaded guilty to operating a vehicle while
intoxicated1 as a Class A misdemeanor and was given the maximum sentence of 365
days. She now appeals, contending her sentence was inappropriate in light of the nature
of the offense and her character.
We affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 11:00 p.m. on January 27, 2012, White drove her vehicle into
the rear end of another car, causing damage to the other car and injury to one of its
occupants. The responding police officer noted that White had the strong odor of alcohol
on her breath, was slurring her speech, and needed support to maintain her balance. Two
certified breath tests showed White’s blood alcohol content as 0.18 percent and 0.17
percent. After White had been informed of her Miranda rights, she admitted that she had
been drinking malt liquor prior to driving.
The State charged White with one count of operating a vehicle while intoxicated
and one count of operating a vehicle with a blood alcohol content of 0.15 percent or
greater,2 each as a Class A misdemeanor. White was released on bond. However, the
court later revoked White’s bond after she violated the conditions of her release by being
alleged to have committed additional criminal acts. Ultimately, White pleaded guilty to
both charges in exchange for placement in the drug court diversion program. The State
agreed that if White successfully completed drug court, then it would dismiss the two
1
See Ind. Code § 9-30-5-2(b).
2
See Ind.Code. § 9-30-5-1(b).
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charges against her in exchange for her pleading guilty to one count of Class B
misdemeanor reckless driving.3
In White’s three months in drug court, she missed three drug screens and
submitted two positive drug screens. She also failed to complete community service and
did not maintain the appropriate contact with law enforcement. The court ordered
substance abuse treatment for White, but she failed to attend the initial session on two
occasions. After these violations, White withdrew from the drug court program and
proceeded to sentencing, where she was also sentenced for other offenses she
subsequently had committed. The trial court vacated her Count II conviction and
sentenced White to the maximum sentence on Count I, 365 days in the Allen County
Confinement Facility. White now appeals her sentence.
DISCUSSION AND DECISION
White argues that her 365-day sentence was inappropriate in light of the nature of
the offense and her character. She contends that because she is not the worst offender nor
did she commit the worst offense, she should not have been sentenced to the maximum
sentence that could have been imposed. White raises this same argument in her other
appeal that is currently before this court, Cause No. 02A05-1212-CR-651.
We may revise a sentence after careful review of the trial court’s decision if we
conclude that the sentence is inappropriate based on the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). “Under this rule, the burden is on
the defendant to persuade the appellate court that his or her sentence is inappropriate.”
3
See Ind. Code § 9-28-8-52.
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McMahon v. State, 856 N.E.2d 743, 749 (Ind. Ct. App. 2006) (citing Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006)). The reviewing court “must and should exercise
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.” Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007).
We keep in mind that maximum sentences are generally most appropriate for the
worst offenders. Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002). This maxim is
not, however, a guideline to determine whether a worse offender could be imagined. Id.Rather, “we refer generally to the class of offenses and offenders that warrant the
maximum punishment.” Id. Such a class encompasses a considerable variety of offenses
and offenders. Id. When reviewing a maximum sentence, we concentrate less on
comparing the facts of this case to others, whether real or hypothetical, and focus more
on the nature, extent, and depravity of the offense for which the defendant is being
sentenced, and what it reveals about the defendant’s character. Hull v. State, 839 N.E.2d
1250, 1257 (Ind. Ct. App. 2005) (citing Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.
App. 2007), trans. denied).
In support of her character, White points to a letter she gave the judge at
sentencing, which discusses her desire to change and help others, and also asks for help
with her substance abuse problem. However, for the reasons we discuss in White’s
companion case, including her numerous prior convictions and noncompliance with
viable rehabilitation options, we do not find persuasive White’s proffered mitigating
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evidence.
As to the nature of the offense, White contends that the nature of her substance
abuse offense, which is technically considered non-violent, does not warrant imposition
of the maximum sentence. Nevertheless, someone was injured, and property was
damaged due to White’s errant actions. We find that, taken together, White’s character
and the nature of her offense place her in the class of offenders that warrant the 365-day
maximum executed sentence. Therefore, we are not persuaded that the trial court’s
sentence was inappropriate.
Affirmed.
VAIDIK, J., and PYLE, J., concur.
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