Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 1 of 13 A TTORNEY FOR A PPELLANT William W. Gooden Mt. Vernon, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Jonathon D. Reis , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. December 11, 2017 Court of Appeals Ca se No. 65A01

- 1707

- CR

- 1563 Appeal from the Posey Superior Court The Honorable S. Brent Almon, Judge Trial Court Cause No. 65D01

- 1702

- F5

- 86

Robb , Judge
.Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 2 of 13 

# Case Summary and Issue

[1] Following a guilty plea, Jonathon Reis was convicted of operating a motor vehicle while privileges are forfeited for life, a Level 5 felony, and operating a vehicle while intoxicated endangering a person, a Class A misdemeanor. Reis

was sentenced to a term of five years for the Level 5 felony to be executed at the Indiana Department of Correction and a consecutive t erm of one year for the Class A misdemeanor to be served in a community corrections program . He now appeals, raising for our review the sole issue of whether his sentence is inappropriate in light of his character and the nature of his offense. Concludin g his sentence is not inappropriate, we affirm.



# Facts and Procedural History

[2] Early in the morning on February 19, 2017, police officers found a white Chevrolet SUV on Highway 62 in Posey County. The SUV was running, in drive, and facing south blocking both westbound lanes of traffic. Officers attempted to wake the driver, later identified as Reis, to no avail. Reis lifted his foot off the brake and the vehicle rolled into a guardrail. Once the vehicle came to a stop, officers unlocked the vehicle, sh ut it off, and again attempted to wake Reis

. While doing so, o fficers observed a nearly empty bottle of vodka on the passenger floorboard. When o fficers were finally a ble to wake Reis , they removed him from the vehicle. Reis’ s balance was “very unsteady , ” he s melled of alcoholic beverages, and he repeatedly repl ied , “mother fu**** ” to o fficer s ’ questions. Appellant’s Appendix , Volume II at 13.Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 3 of 13 [3] Officers lea r ned Reis’ s driver’s license was suspended for life as an habitual traffic offender and he was administered a portable breath test , which revealed a blood alcohol content (“BAC”) of .21. Reis acknowledge d his license was suspended and when asked why he was a n habitual traffic offen der he responded, “same sh**. ” I d. At the jail, Reis refused to ta ke the breathalyzer but agreed to another portable breath test, which again revealed a BAC of .21. Reis stated that he wished he was still in the beer phase of his life but he drank vodka.

[4] The State charged Reis with operating a motor vehicle while priv ileges are forfeited for life, a Level 5 felony, and operating a vehicle while intoxicated endangering a person, a Class A misdemeanor. Reis pleaded guilty as charged.

[5] At sentencing , the trial court placed a “great deal of weight” on the defendant’s prior criminal record which include s seventeen prior convictions . Transcript , Volume 2 at 31. The trial court also noted Reis’ s “terrible alcohol problem”
and that the circumstances of h is offenses were “egregious” before sentencing Reis to five years in the Indiana Department of Correct ion and one year in a community corrections program

. Id. at 32

- 33. Reis now appeals his sentence.



# Discussion and Decision
I. Standard of Review

[6] We may review and revise criminal sentences pursuant to the authority derived from Article 7, Section 6 of the Indiana Constitution. Ind iana Appellate RuleCourt of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 4 of 13 7(B) empowers us to revise a sentence “if, after due consideration of the trial court’s decision, t he Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Because a trial court’s judgment “should receive considerable deference[,]” our principal role is to “leaven the outliers.” Caldwe ll v. State , 895 N.E.2d 1219, 1222

- 25 (Ind. 2008). “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the def endant’s character (such as substantial virtuous trai t s or persistent examples of good char acter).” Stephenson
v. State , 29 N.E.3d 111, 122 (Ind. 2015). The defendant bears the burden to persuade this court that his or her sentence is inappropriate, Chil dress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006), and we may look to any factors appearing in the record for such a determination , Stokes v. State , 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied

.



## II. Inappropriate Sentence
A. Indiana Appellate Rule 7(B)

[7] Reis argues his sentence is inappropriate in light of his character. Regar ding the nature of the offense Reis concedes, “The trial court correctly found that the nature of the offense in this case was egregious. The defendant agrees with that assessment.” Brief of Appellant at 11. The State argues that because Reis does not put forth an argument regarding the nature of the offense, he therefore waives review of the inappropriateness of his sentence , relying upon the recentCourt of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 5 of 13 decision from a panel of this court in Sanders v. State , 71 N.E.3d 839 (Ind. Ct. App. 2017), trans. denied. There, the court explained:
Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B) (emphasis added). That language is clear: Rule 7(B) plainly requires, as this court has long acknowledged , “the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character.” Williams v. State , 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) [.] Because [defendant] has failed to present any authority or analysis on the issue of the nature of his offenses, he has waived
ou r review of the inappropriateness of his sentence.

Id. at 843

- 44 (some citations omitted)

.

[8] However, our jurisprudence on this issue is far from settled and we respectfully disagree with Sanders’ interpretation of Rule 7 (B). Just one year ago, f aced with a similar waiver argument in Connor v. State , 58 N.E.3d 215 (Ind. Ct. App. 2016), we wrote :
In fact, our courts have frequently treated the two prongs as separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate

. See , e.g., Eckelbarger v. State, 51 N.E.3d 169, 170

- 71 (Ind. 2016) (revising defendant ’ s sentence from thirty

- two years to sixteen years upon finding the nature of his offenses

— drug offenses facilitated by a State informant

— did not warrant consecutive sentences, without also discussing whether his character warranted revision); Isom v. Stat e, 31 N.E.3d 469 , 494 (Ind. 2015) (noting “ [t]he character of the offender, rather than the nature of the offense, presents [defendant ’ s] strongest support for revision[,] ” but ultimatelyCourt of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 6 of 13 declining to revise the sentence because the nature of the offenses “far outweigh his otherwise favorable character ” ), cert. denied,

––– U.S.

–––– , 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016); Rice v. State, 6 N.E.3d 940, 947 (Ind. 2014) (stating, in declining to revise defendant ’ s sentence, “[w]e are thus not convinced that e ither the nature of the offense or the character of the offender warrants a revision”) (emphasis added); Cardwell, 895 N.E .2d at 1226 (revising defendant’ s sentence without considering the nature of the defendant ’ s character because “the record contains a number of inconclusive factors on which the trial court made no findings”); Schaaf v. State, 54 N.E.3d 1041, 1044 (Ind. Ct. App. 2016) (revising a sentence upon finding that although the defendant ’ s criminal history was significant and would make a below

- advisory sentence too lenient, the nature of his “relatively minor” offenses rendered his above

- advisory sentences too harsh); Norris v. State, 27 N.E.3d 333, 336 (Ind. Ct. App. 2015) (acknowledging defendant ’ s criminal history but revising sentence as i nappropriate due to “the relatively innocuous nature of this offense”); Williams v. State, 891 N.E.2d 621, 633

– 35 (Ind. Ct. App. 2008) (revising defendant ’ s sentence on the basis of the nature of his offense even though defendant did not make an argument regarding his sentence in light of his character ); Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007) (revising defendant ’ s sentence “[a]fter due consideration of [his] minimal criminal history, probation violations, and guilty plea,” which are al l factors weighing on defendant’ s character ).

Id. at 218

- 19 (footnotes omitted). We concluded that although Rule 7(B) states we may revise a senten ce we find to be inappropriate “ in light of the nature of the offense and the character of the offender,” (e mpha sis added), we view the wording of the rule as a statement requiring us to consider both prongs in our assessment, “and not as a requirement that the defendant must necessarily prove each of those prongs render his sentence inappropriate.” Id. at 219.Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 7 of 13 [9] Notably, after Connor was decided and one month before Sanders was handed down , our supreme court reviewed a defendant’s contention that his sentence was inappropriate based solely on his character in Shoun v. State , 67 N.E.3d 635 (Ind. 2017). There, t he defendant did “not dispute the severe nature of the crime and focuse[d] his argument on his character

— that is, his alleged intellectual disability as evidence d by his low IQ and his ‘compromised psychological state.’” Id. at 642. Rather than deem the defendant’s Rule 7(B) argument waived, our supreme court concluded that the defendant’s “arguments that his character makes his

. . . sentence inappropriate are not persuasive.” Id.

[10] Contrary to the “clear” reading of Rule 7(B) Sanders purports, panels of this court have continued to interpret Rule 7(B) consistently with Connor . In McFall v. State, 71 N.E.3d 383 (Ind. Ct. App. 2017), a panel of this court found the defendant’s sentence inappropriate based solely upon considerations of the defendant’s ch aracter. Regarding the nat ure of the offense, the court noted only, “McFall manufactured methamphetamine in a drug house in which a housemate’ s children also lived. ” Id. at 390. The court then concluded :
Given that this is McFall’s first felony convicti on and the progress that she has made since her arrest to overcome her addi c tion and get her life in order, we believe that an above

advisory sentence is inappropriate.

Id. at 391.Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 8 of 13 [11] Similarly, in Holmes v. State , 2017 WL 4665791 ( Ind. Ct. App. Oct

. 18, 2017) , the defendant conceded the nature of his offense was “extremely serious [,]” id. at *4, and the court went on to weigh the defendant’s character, stating:
As for [the defendant’s] character, she argues that she was raised in deplorable conditions, ha d no criminal history before this case, was employed “in an attempt to provide for her children,” and “appeared to express sincere remorse at the time of her sentencing.” But even considering these things in [the defendant’s] favor, they do not overcome t he horrific nature of the offense in Count I, as relayed by the trial court and exhibited by the photographs in this case. Homes has failed to persuade us that her forty

- year sentence for Count I is inappropriate.

Id. at *5.

[12] We continue to view Connor ’s interpretation of Rule 7(B) as consistent with the purpose of the rule, our constitutional prerogative from which the rule is derived, and principles of justice. Indeed, requiring a defendant to prove each of the prongs in order to render his sentence inappropriate can lead to absurd results and require defendants to mount disingenuous arguments on appeal

. 1 As we noted in Connor, this interpretation of Rule 7(B) does not less e n a defendant’s burden; rather, the burden may be “heightened by the need to prove the nature of his character should overcome the admittedly serious nature of his

1 As we explained in Connor, “no one could dispute with a straight face that every child molesting offense is heinous [.]” 58 N.E.3d at 220. Requiring an appellant t o prove both prongs of Rule 7(B) forces an appellant to launch disingenuous arguments regarding the nature of a horrendous offense. T his interpretation also discourages candor to this tribunal and wastes valuable judicial resources.Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 9 of 13 offense.” 58 N.E.3d at 220. Therefore, we continue to recognize the two prongs of Rule 7(B) to be separate inquiries that must “ultimately be balanced in determining w hether a sentence is inappropriate.” Id. at 218.

[13] Accordingly , we reject the State’s argument that Reis has waived review of his

sentence by acknowledging the egregiousness of his offenses. Notwithstanding this divergence of caselaw regarding Rule 7(B), we will consider both the nature of Reis’s offenses and his character in evaluating whether his sentence is inappropriate.



### B. Nature of the Offense

[14] Our analysis of the “nature of the offense” portion of the appropriateness review begins with the advisory sentence. Clara v. State , 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). The advisory sentence is the starting point selected by the legislature as an appropriate sentence for the crime committed. Childress , 848 N.E.2d at 1081. Reis pleaded guilty to a Leve l 5 felony and a Class A misdemeanor. Indiana Code section 35

- 50

- 2

- 6 states:
(b) A person who commits a Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.

Ind iana Code section 35

- 50

- 3

- 2 states:
A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than (1) years . . . .Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 10 of 13 The trial court sentenced Reis to five years for the Level 5 felony operating a motor vehicle while privileges are forfeited for life to be served consecutively to the maximum sentence of one year for the Class A misdemeanor operating a vehicle while intoxicated endangering a person

.

[15] Here, Reis endangered the community by driving intoxicated. Th is is particularly true given the fact that Reis fell asleep with his vehicle obstructing two lanes of traffic on a state highway in the early hours of the morning. Moreover, Reis ’s driving privileges had been forfeited for life due to past convictions an d he should never have been behind the wheel of the vehicle , intoxicated or not. Although the trial court sentenced Reis to the near

maximum sentence , we find the admittedly egregious nature of Reis ’s offenses supports such a sentence.



### C. Character of the Offender

[16] Reis contends his sentence is inappropriate in light of his character. The “character of the offender” portion of the standard refers to the general sentencing considerations and the relevant aggravating and mitigating circumstances. Williams v. State , 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003),
trans. denied. We assess the trial court’s recognition or non

- recognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate. Stephenson v. State , 53 N.E.3d 557, 56 1 (Ind. Ct. App. 2016). A defendant must still persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Id.Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 11 of 13 [17] Reis contends the failure of the trial court to consider his guilty plea re nder s his sentence inappropriate. “ A guilty plea demonstrates a defendant’s acceptance of responsibility for the crime and extends a benefit to the State

. . . . Thus, a defendant who pleads guilty deserves to have mitigating weight extended to the
gu ilty plea in return.” Francis v. State , 817 N.E.2d 235, 237

- 38 (Ind. 2004) (citations omitted). The extent to which a guilty plea is mitigating will vary from case to case. Id. at 238 n.3. For example, a guilty plea may not be significantly mitigating when it does not demonstrate the defendant’s acceptance of responsibility or when the defendant receives a substantial benefit in return for the plea. Anglemyer v. State , 875 N.E.2d 218, 221 (Ind. 2007) (reh’g opinion)

.

[18] The State argues Reis’s plea was “more likely the result of pragmatism than acceptance of responsibility and remorse[,]” because of the weight of the evidence against him. Brief of Appellee at 12 ( quoting Anglemyer , 875 N.E.2d at 221); s ee Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. Ap p. 2006) (noting a guilty plea may be considered less significant where there is substantial admissible evidence of the defendant’s guilt), trans. denied. Weight of the evidence aside , Rei s pleaded guilty to both counts as charged. Reis did not receive t he benefit of reduced or dropped charges nor did he receive the benefit of a sentencing agreement

. Therefore, because only the State received a benefit from Reis’s guilty pleas , this factor weighs in Reis’s favor. See Cotto v. State, 829 N.E.2d 520, 525

- 26 (Ind. 2005) (holding that a guilty plea was entitled to significant mitigating weight where the State did not directly dismiss any charges).Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 12 of 13 [19] With that said, we find Reis’s crim inal record reflects so poorly on his character that it outweigh s any positive consideration from his guilty plea. Reis has accumulat ed a total of seventeen convictions , including four felonies, over the preceding seven years

. His convictions also include the same and similar offenses as these

— operating a vehicle while intoxicated and operating a vehicle as an habitual traffic violator. Even a minor criminal record reflects poor ly on a defendant’s character, Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007), and Reis admits his is an “extensive record upon which the trial court properly placed ‘a great deal of weight.’” Br. of Appellant at 12.

[20] Instead, Reis argues his prior sentences have failed to address his alcohol problem and that the “trial court’s failure to recognize that treatment opt ions remained untried and available renders the near maximum prison sentence that [he] received inappropriate.” Br. of Appellant at 13. To the extent that Reis argues anoth er sentence is more appropriate, t he question under Rule 7(B) is not whether anoth er sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. Fonner v. State , 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Reis fails to advance an argument regarding why his sentence is inappropriate in consideration of his alcohol problem.

[21] We applaud the fact that Reis was able to be free of convictions for three and

one - half years prior to this conviction and that he admit s his alcohol problem. However, this is not sufficient to find his character warrants a reduction of his

sentence. G iven Reis’s lengthy criminal history and the egregious nature of his crimes, we cannot say his sentence is inappropriate.Court of Appeals of Indiana | O p i n i o n 65A01

- 1707

- CR

- 1563 | D e c e m b e r 1 1 , 2 0 1 7 Page 13 of 13 

# Conclusion

[22] Rei s’s sentence is not inappropriate in light of the nature of his offenses or of his character. W e therefore affirm the sentence.

[23] Affirmed.

R i ley, J., and Pyle, J., concur

.