Court of Appeals of Indiana | Memorandum Decision 51A01

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### MEMORANDUM DECISION

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.

A TTORNEY FOR A PPELLANT

Steven E. Ripstra

Jasper, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

Jeffery Wininger,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff. May 17, 2016

Court of Appeals Case No.

51A01

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- 1375

Appeal from the Martin Circuit

Court

The Honorable Lynn e Ellis,

Judge Trial Court Cause No.

51C01

- 1407

- F5

- 93

Riley, Judge.Court of Appeals of Indiana | Memorandum Decision 51A01

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### STATEMENT OF THE CASE

[1] Appellant

- Defendant, Jeffery Wininger (Wininger), appeals his sentence

following his conviction for operating a motor vehicle after forfeiture of license

for life, a Level 5 felony, Ind. Code §§ 9

- 30

- 10

- 16;

- 17.

[2] We affirm.



### ISSUES

[3] Wininger raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by failing to consider several

mitigating circumstances in its sentencing determination; and

(2) Whether Wininger’s sentence is inappropriate in light of the nature of the

offense and character of the offender.



### FACTS AND PROCEDURAL HISTORY

[4] In 1990, 1994, and 1997, Wininger was charged with, and subsequently

convicted of, operating while intoxicated. In 2005, Wininger pled guilty to

being an habitual traffic violator (HTV). As a result, his driving privileges were

suspended for life.

[5] On January 21, 2012, the Orange County Sheriff’s Department was dispatched

to investigate a one

- vehicle accident “on top of Mt Arie Hill” in Orange

County, Indiana. (Appellant’s App. p. 79). When the detective arrived, he

observed a wrecked red pickup truck, but the driver had left the scene. A tow

truck arrived to retrieve the truck, and the tow truck driver informed theCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 3 of 13 detective that he had been summoned by the pickup truck’s owner

— Wininger.

When the detective contacted Wininger, Wininger initially stated that his

girlfriend was driving the truck. However, Wininger eventually admitted that

he had been driving the truck and lost control when he hit a patch of ice. He

further explained that he left the scene and lied about the incident because he is

an HTV and was operating without a driver’s license. On January 26, 2012, an

Information was filed in Orange County, Indiana, charging Wininger with

operating a motor vehicle after forfeiture of license for life, a Class C felony,

I.C. §§ 9

- 30

- 10

- 16;

- 17 (2011). On June 22, 2012, Wininger failed to appear in

court, and an arrest warrant was issued. More than two years later, Wininger’s

warrant remained outstanding.

[6] On July 6, 2014, shortly after 5:00 p.m., a motorcycle was traveling west on

U.S. 150 in Shoals, Martin County, Indiana, when it rounded a curve and lost

control. The motorcycle crossed the center line and collided with a blue pickup

truck. Although both the driver and passenger on the motorcycle sustained

injuries, the driver of the truck fled the scene. The officers discovered that the

pickup truck was registered to Wininger. A police officer located Wininger at

his residence, and Wininger admitted that he had been driving the truck when

the accident occurred, and he had left the scene “because he was afraid of going

to jail and he knew he was suspended for life.” (Tr. p. 14).

[7] On July 8, 2014, the State filed an Information, charging Wininger with

operating a vehicle after forfeiture of license for life, a Level 5 felony. On April

16, 2015, Wininger entered into a plea agreement with the State, pursuant toCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 4 of 13 which Wininger agreed to plead guilty in exchange for a four

- year cap on the

executed term of his sentence. Subject to the four

- year cap, sentencing was

otherwise left to the trial court’s discretion. The same day, the trial court held a

change of plea hearing; the court took Wininger’s guilty plea under advisement

and ordered the Martin County Probation Department to prepare and file a Pre

Sentence Investigation (PSI) Report. On May 27, 2015, the probation officer

informed the court that Wininger failed to schedule an appointment for his PSI

interview as he was instructed. By July 15, 2015, Wininger had still not

arranged to meet with a probation officer, so the State filed a motion to revoke

his bond. The same day, the trial court granted the motion, and Wininger was

arrested.

[8] On August 14, 2015, the trial court conducted a sentencing hearing. The trial

court accepted Wininger’s guilty plea and entered a judgment of conviction for

operating a motor vehicle after forfeiture of license for life, a Level 5 felony.

The trial court imposed a four

- year sentence, with one year to be executed in

the Indiana Department of Correction (DOC) and three years executed in

Martin County Community Corrections.

[9] Wininger now appeals. Additional facts will be provided as necessary.



### DISCUSSION AND DECISION

I. Abuse of Sentencing Discretion

[10] Wininger claims that the trial court abused its discretion by failing to consider

any mitigating circumstances in rendering a sentence. It is well settled thatCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 5 of 13 “sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion.” Anglemyer v. State

, 868

N.E.2d 482, 490, clarified on reh’g

, 875 N.E.2d 218 (Ind. 2007). It is an abuse of

discretion if the trial court’s “decision is clearly against the logic and effect of the

facts and circumstances before the trial court.” Singh v. State

, 40 N.E.3d

981, 987 (Ind. Ct. App. 2015), trans. denied

. We note that in this case, Wininger

was sentenced pursuant to a plea agreement, which provided for a four

- year cap

on the executed portion of his sentence. “Where a plea agreement leaves

sentencing to the trial court’s discretion, a defendant is entitled to contest on

direct appeal the merits of a trial court’s sentencing decision. This includes a

plea agreement wherein a defendant agrees to a sentencing cap or range.”

Bowling v. State

, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012) (citation omitted),

trans. denied

.

[11] In Indiana,

trial courts are required to enter sentencing statements whenever

imposing [a] sentence for a felony offense.

. . . [T]he statement

must include a reasonably detailed recitation of the trial court’s

reasons for imposing a particular sentence. If the recitation

includes a finding of aggravating or mitigating circumstances,

then the statement must identify all significant mitigating and

aggravating circumstances and explain why each circumstance

has been determined to be mitigating or aggravating.

Anglemyer

, 868 N.E.2d at 490 (citations omitted). Our supreme court has

elaborated that a trial court may abuse its discretion byCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 6 of 13 failing to enter a sentencing statement at all[,]

. . . entering a

sentencing statement that explains reasons for imposing a

sentence

— including a finding of aggravating and mitigating

factors if any

— but the record does not support the reasons, or the

sentencing statement omits reasons that are clearly supported by

the record and advanced for consideration, or the reasons given

are improper as a matter of law.

Id. at 490

- 91. In such a situation, we will remand for resentencing only “if we

cannot say with confidence that the trial court would have imposed the same

sentence had it properly considered reasons that enjoy support in the record.”

Id. at 491. “[O]nce the trial court has entered a sentencing statement, which

may or may not include the existence of aggravating and mitigating factors, it

may then ‘impose any sentence that is

. . . authorized by statute; and

. . .

permissible under the Constitution of the State of Indiana.’” Id. (ellipsis in

original) (quoting I.C. § 35

- 38

- 1

- 7.1(d)).

[12] In the present case, the trial court made the following statement in imposing

Wininger’s sentence:

I know what needs to be done with

. . . Wininger and he needs to

go to the DOC. I also know that he is a working man. I’m

concerned because while he admitted he would never drive again

he [is] still making an excuse for why he drove. I thought I was

having a heart attack and needed to go to the hospital was one

comment that he made that concerned me. The other one was I

don’t want to be a burden to my friends. I don’t know that he

doesn’t get the fact he’s going to be a burden to whomever he

deals with for the rest of his life whenever he needs to get

somewhere. That’s a concern. That’s the whole reason his son

testified that he, you know, he keeps driving because he wants toCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 7 of 13 be independent. I’m going to, there was a four (4) year cap, I’m

going to sentence him to the four (4) years at [DOC]. I’m going

to have him serve one (1) year at the []DOC with the remaining

three (3) years as a direct commitment to community corrections.

I’m not going to do any probation. He has four (4) years. I’ll be

quite honest,

. . . Wininger, I’ll be real surprised if you make it in

the first six (6) months. I, I don’t know that you’ve got the

concept that you can’t ever drive again.

. . . I don’t care what the

situation is. I still don’t get I didn’t dial 911. I

. . . don’t get that.

But nobody has given me any information, uh, but you, you

knew you shouldn’t drive but you wanted to get to the hospital.

So I think you need to set [sic] in the [DOC] for awhile and

ponder on the fact that this is for real and this is for the rest of

your life.

(Tr. pp. 80

- 81). Wininger does not challenge the adequacy of the trial court’s

sentencing statement. Rather, he simply contends that the trial court should

have identified his “guilty plea, the undue hardship he will suffer from

incarceration because of his health, his remorse[,] and his alcohol rehabilitation

spanning nearly the past [twenty] years” as factors warranting mitigation of his

sentence. (Appellant’s Br. p. 10). We disagree.

[13] The determination of mitigating circumstances is a matter left to the trial court’s

discretion. Healey v. State

, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans.

denied

. The trial court has no obligation “to accept the defendant’s argument as

to what constitutes a mitigating factor,” nor is it “required to give the same

weight to proffered mitigating factors as does a defendant.” Id. “A trial court

does not err in failing to find a mitigating factor where that claim is highly

disputable in nature, weight, or significance.” Id. Where a defendant assertsCourt of Appeals of Indiana | Memorandum Decision 51A01

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factor, on appeal, the defendant bears the burden of establishing “that the

mitigating evidence is significant and clearly supported by the record.” Id.

[14] Wininger asserts that the trial court should have found his “very poor health” to

be a mitigating circumstance. (Appellant’s Br. p. 9). Wininger’s son testified

that Wininger has “had three (3) heart attacks since June of 2014.” (Tr. p. 69).

Wininger’s son also noted that Wininger is not eligible for “a defibrillator”

because his heart is only functioning at 35%, rather than the requisite 50%;

thus, “he’s at high risk

. . . for death.” (Tr. pp. 68

- 69). At the sentencing

hearing, Wininger’s attorney argued simply that “[h]is health is that serious that

he

. . . deserves leniency for that reason alone.” (Tr. p. 79). On appeal,

Wininger offers no argument as to why his poor health should be considered a

factor in mitigation. During the sentencing hearing, Wininger’s son testified

that he had been providing Wininger’s medication to the jail during Wininger’s

incarceration, and there was no indication that Wininger would not receive

necessary treatment if sentenced to the DOC. See Henderson v. State

, 848 N.E.2d

341, 345 (Ind. Ct. App. 2006) (concluding the trial court did not err in failing to

identify the defendant’s poor health as a mitigating circumstance where no

evidence was presented that the defendant’s “medical conditions would be

untreatable during incarceration or would render incarceration a hardship”).

[15] Wininger also cites his guilty plea and remorse as factors that the trial court

should have considered in mitigation. In general, a guilty plea deserves some

consideration as a mitigating circumstance. Caraway v. State

, 959 N.E.2d 847,Court of Appeals of Indiana | Memorandum Decision 51A01

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. However, a guilty plea loses its

mitigating significance “if the circumstances indicate [that] the defendant is not

taking responsibility for his actions, or if substantial admissible evidence exists

against the defendant. Also, the plea may not be significant ‘when the

defendant receives a substantial benefit in return for the plea.’” Id. (citation

omitted) (quoting Anglemyer

, 875 N.E.2d at 221). In this case, Wininger

received the benefit of a capped sentence. A Level 5 felony carries a maximum

sentence of six years, but the executed portion of Wininger’s term would not

exceed four years under the plea deal. See I.C. § 35

- 50

- 2

- 6(b). Moreover, given

the fact that Wininger admitted to the police officers that he had been driving

his pickup truck at the time of the accident, the State’s case against him was

strong; thus, Wininger’s decision to plead guilty was “merely a pragmatic one.”

Lavoie v. State

, 903 N.E.2d 135, 143 (Ind. Ct. App. 2009).

[16] Additionally, with respect to Wininger’s expression of remorse, Wininger

concedes that the trial court “seemed to doubt [his] sincerity.” (Appellant’s Br.

p. 10). During the sentencing hearing, Wininger stated that he knew “what [he]

did was wrong.” (Tr. p. 72). However, he offered numerous, inconsistent

excuses in an attempt to justify his illegal conduct. First, when the police

officers arrived at his house to question him about the accident, Wininger stated

that he left the scene out of fear that he would be arrested based on his HTV

status. Then, during his PSI interview, Wininger informed the probation officer

that he drove because “he believed he was having a heart attack” and did not

have a working phone to call for help. (Appellant’s Conf. App. p. 125). In hisCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 10 of 13 written version of events for the PSI, Wininger described that on the day of the

accident, he was experiencing chest pain, did not have medication at his house,

and could not get a hold of his son to drive him to the hospital. Yet, in the

same report, Wininger claimed that, after the accident, he “asked one of the

motorcycle group” to take him to his house “to get some medication to stop my

heart from beating so fast.” (Appellant’s Conf. App. p. 129). Lastly, Wininger

made a statement at the sentencing hearing: “I was thinking I was having a

heart attack when I left my house.

. . . And, uh, once [the accident] happened

and I, I went to the house to get some medication and I went to get a bar to get

my truck so they wouldn’t tow it away.

. . . I promise I will never drive again in

my life.” (Tr. p. 72). Accordingly, we find no abuse of discretion in the trial

court’s rejection of Wininger’s guilty plea and remorse as mitigating

circumstances.

[17] Finally, we find that Wininger’s argument regarding his alcohol rehabilitation is

precluded from appellate review. Although Wininger’s son stated at the

sentencing hearing that Wininger “hasn’t drink [sic] a drop since 1999[,]”

Wininger did not proffer his “[twenty] years” of alcohol rehabilitation as a

mitigating circumstance for the trial court to consider. (Tr. p. 70). “If the

defendant does not advance a factor to be mitigating at sentencing, this [c]ourt

will presume that the factor is not significant and the defendant is precluded

from advancing it as a mitigating circumstance for the first time on appeal.”

Hollin v. State

, 877 N.E.2d 462, 465 (Ind. 2007) (quoting Spears v. State

, 735

N.E.2d 1161, 1167 (Ind. 2000)).Court of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 11 of 13 II. Appropriateness of Sentence

[18] Wininger also claims that his sentence is inappropriate. A Level 5 felony is

punishable by a “term of between one (1) and six (6) years, with the advisory

sentence being three (3) years.” I.C. § 35

- 50

- 2

- 6(b). Here, Wininger received a

four

- year sentence, which is well within the statutory range and is the

maximum term agreed upon under his plea agreement. Even where the trial

court acts within its lawful discretion in fashioning a sentence, our court may

revise the sentence “if, after due consideration of the trial court’s decision, [we]

find[] that the sentence is inappropriate in light of the nature of the offense and

the character of the offender.” Ind. Appellate Rule 7(B).

[19] It is well established that “[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 are mindful that “we must and should

exercise deference to a trial court’s sentencing decision, both because

[Appellate] 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.” Hunt v. State

, 43 N.E.3d 588, 590 (Ind. Ct.

App. 2015), trans. denied

. On review, we focus on “the length of the aggregate

sentence and how it is to be served.” Cardwell

, 895 N.E.2d at 1224. Ultimately,

“whether we regard a sentence as appropriate at the end of the day turns on our

sense of the culpability of the defendant, the severity of the crime, the damageCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 12 of 13 done to others, and myriad other factors that come to light in a given case.” Id.

Our court does “not look to see whether the defendant’s sentence is appropriate

or if another sentence might be more appropriate; rather, the test is whether the

sentence is ‘inappropriate.’” Barker v. State

, 994 N.E.2d 306, 315 (Ind. Ct. App.

2013), trans. denied

. Wininger, who bears the burden of proving that his

sentence is inappropriate, simply argues that “[t]he numerous mitigators

[discussed above] support” a reduced sentence. Gleason v. State

, 965 N.E.2d

702, 712 (Ind. Ct. App. 2012); (Appellant’s Br. p. 12).

[20] We first consider the nature of the offense. Wininger, whose driver’s license

has been suspended since 2005, was involved in an accident while he was

driving his pickup truck. Due to his HTV status, Wininger left the scene before

police arrived. It is undisputed that it was the motorcycle driver who caused

the accident, but when Wininger fled the scene, he left two injured people

behind

— one of whom had suffered a compound fracture

— because he did not

want to get arrested.

[21] As to his character, the record establishes that Wininger served in the United

States Navy and received an honorable discharge in 1973. In addition,

Wininger has a steady employment history, and Wininger’s son lauded

Wininger’s work ethic during the sentencing hearing. Nevertheless, Wininger’s

criminal history demonstrates his unwillingness to conform to the laws of our

society. Wininger’s criminal history, while certainly not the worst this court

has seen, consists of multiple alcohol and driving related offenses. Specifically,

his record contains four convictions for operating while intoxicated and oneCourt of Appeals of Indiana | Memorandum Decision 51A01

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- 1375 | May 17, 2016 Page 13 of 13 HTV conviction. Furthermore, at the time he committed the instant offense,

Wininger had a two

- year

- old outstanding warrant in Orange County after he

failed to appear on a charge of operating a motor vehicle after forfeiture of

license for life in an incident nearly identical to the present case. For his prior

offenses, Wininger received suspended sentences, probation, community

service, and home detention. It is evident that the trial court’s past leniency

was insufficient to deter Wininger from committing additional crimes. Thus, a

DOC sentence is now necessary to ensure that Wininger respects the fact that,

regardless of the circumstances, he is prohibited from operating a vehicle. We

therefore find that Wininger’s sentence is not inappropriate and affirm the trial

court’s four

- year term.



### CONCLUSION

[22] Based on the foregoing, we conclude that the trial court acted within its

discretion in declining to find any mitigating circumstances, and we further

conclude that Wininger’s sentence is not inappropriate.

[23] Affirmed.

[24] Kirsch, J. and Pyle, J. concur