Dominique L. White v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), Aug 07 2013, 5:45 am
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. 02A05-1212-CR-651
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D06-1206-FD-885
August 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Dominique L. White (“White”) pleaded guilty to four counts of neglect of a
dependent,1 each as a Class D felony, one count of operating a vehicle while intoxicated 2
as a Class D felony, and one count of driving while suspended3 as a Class A
misdemeanor, and received an aggregate sentence of 4 years. 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 4:30 a.m. on June 24, 2012, Detective Roddy, of the Fort Wayne
Police Department, was driving behind White’s vehicle. After Detective Roddy
witnessed White’s vehicle strike a curb twice, weave, and nearly run a red light, he
contacted Officer Troyer to conduct a traffic stop. When Officer Troyer made the stop,
he witnessed “a young girl in the front seat . . . turned around facing [the officer] and
leaning into the back seat, it was obvious that she was not properly restrained.”
Appellant’s App. at 18. Officer Troyer approached White’s vehicle and recognized that
the young girl was placing an infant into a car seat.
While Officer Troyer spoke with White, he noticed the odor of alcohol emanating
from the vehicle. White also responded slowly to Officer Troyer’s questions, with
slurred speech. When Officer Troyer learned that White had three active warrants, he
1
See Ind. Code § 35-46-1-4(a)(1).
2
See Ind. Code § 9-30-5-3(a)(1).
3
See Ind. Code § 9-24-19-2.
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took White into custody. Two other young children were in the backseat of White’s car.
Only one of the children was secured in a child safety seat.
Officer Troyer searched the Indiana Bureau of Motor Vehicle’s records and
discovered that White’s driving privileges had been suspended. White subsequently
underwent a certified breath test that determined her blood alcohol content to be 0.10
percent. After a sergeant informed White of her Miranda rights, White told the sergeant
that she takes three Xanax a day and that she had taken two Ambien prior to driving with
her children in the car.
The State charged White with four counts of neglect of a dependent, each as a
Class D felony, one count of driving while intoxicated as a Class D felony, and one count
of driving while suspended as a Class A misdemeanor. White pleaded guilty to all six
charges in exchange for placement in the drug court diversion program. Pursuant to the
agreement, if White successfully completed drug court, then the State agreed that it
would dismiss all counts against her in exchange for White pleading guilty to one count
of Class B misdemeanor reckless driving.
During 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 White failed to attend the initial session on two
occasions.
After White’s violations of the program terms, White withdrew from the program
and proceeded to sentencing. At the sentencing hearing, she stated that she committed
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the offenses because she “was just placed in a situation where [she] had to leave where
[she] was at,” and she “was just placed in a bad situation.” Sent. Tr. at 10-11. The trial
court found White’s guilty plea and acceptance of responsibility as mitigating
circumstances, but it rejected the potential hardship of incarceration on dependents as a
mitigating factor. As aggravating circumstances, the trial court discussed White’s
criminal history and failed attempts at rehabilitation. The trial court noted that White had
“been given the opportunities at treatment, jail, probation, community service, home
detention, the Department of Correction, parole and Drug Court and [she] continued [her]
criminal behavior.” Id. at 15. Consequently, the trial court sentenced White to the
Indiana Department of Correction for two years on each of Counts I-V and one year on
Count VI. Count I was ordered consecutive to Count II, with all other counts ordered
concurrent, for a total aggregate sentence of four years executed, the maximum sentence.
White now appeals.
DISCUSSION AND DECISION
White argues that her aggregate sentence of four years was inappropriate in light
of the nature of the offense and her character. She maintains 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. 49AO2-1211-
CR-949.
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
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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.”
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)). Even if the trial court followed the appropriate
procedure in arriving at its sentence, the appellate court still maintains a constitutional
power to revise a sentence it finds inappropriate. Hope v. State, 834 N.E.2d 713, 718
(Ind. Ct. App. 2005). Nevertheless, 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). Further, “[t]he principal role of appellate review
should be to attempt to leaven the outliers, and identify some guiding principles for trial
courts . . . but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State,
895 N.E.2d 1219, 1225 (Ind. 2008).
White argues that her aggregate sentence of four years was inappropriate in light
of the nature of the offense and her character. She maintains that although her criminal
record consists of one juvenile delinquency adjudication, thirteen misdemeanor
convictions, and two felony convictions, her prior offenses were mainly for traffic
violations and conversion/theft cases. She notes that she pleaded guilty just one month
after her initial hearing, saving the State and the court the time and expense of preparing
for and proceeding to trial. Furthermore, she points to a letter she gave to the judge at
sentencing, which referenced her recent baptism, asked for help with her alcohol
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addictions, requested supervision, and indicated that she wished to speak to others about
what she has been through, so she might help them. White also notes that although her
children were at risk of injury, no one was injured by her behavior. Finally, White urges
that because she did not commit the worst offense nor is she the worst offender, she
should not have been given the maximum sentence.
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).
Here, White was driving at 4:30 a.m. with a blood alcohol content of 0.10 percent
and after having consumed two Ambien. Three of her children, aged five months old,
two years old, and five years old, sat in the backseat of the car. Only the two-year-old
child was secure in a child safety seat as White weaved, struck two curbs, and almost ran
a red light. Meanwhile, White’s eleven-year-old daughter, unrestrained in the front-
passenger seat, was turned around, attempting to secure her five-month-old sibling into a
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safety seat. It is fortunate that no one was hurt.
As to her character, White, who was twenty-seven years old at the time of this
offense, already had thirteen misdemeanor convictions and two felony convictions, many
of which are similar in nature to the immediate offenses, including prior convictions for
driving while suspended and reckless driving. Two convictions for battery demonstrate a
violent character. Furthermore, at the time White committed the immediate offenses, she
was facing charges in three other causes, two of which were for operating while
intoxicated and one of which was for driving while suspended. In one of her operating
while intoxicated cases, she failed to appear, leading the court to issue a warrant.
White has not shown a willingness or desire to change. The trial court succinctly
summarized the opportunities different courts had extended to White: “treatment, jail,
probation, community service, home detention, the Department of Correction, parole and
Drug Court and [she] continued [her] criminal behavior.” Sent. Tr. at 15. Indeed, White
violated her probation in her first adult offense in January of 2003, twice in 2004, and
again in 2006. In 2008, her placement in home detention was revoked, and she served
two years in the Department of Correction.
In this proceeding, White had the opportunity to rehabilitate through drug court,
yet she missed three drug screens and submitted two positive drug screens. White 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. Although White gave the judge a letter at
sentencing that described her desire to change, at the hearing, she did not accept
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responsibility for her actions when she stated, twice, that she “was just placed in a bad
situation.” Id. at 10-11.
White has failed to demonstrate that the trial court’s sentence was inappropriate.
Affirmed.
VAIDIK, J., and PYLE, J., concur.
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