Pursuant to Ind. Appellate Rule 65(D),

this Memorand um 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 India napolis, 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- NOT FOR PUBLICATION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, Judge2

Dominique L. White (“White”) pleaded guilty to four c ounts of neglect of a dependent , 1 each as a Class D felony , one count of op erating a vehicle while intoxicated 2 as a Class D felony , and one c ount of driving while suspended 3 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 approximatel y 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 vehi cle 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 th e 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 noti ced 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

- 2.3

took White into custody. Two other young children we re 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

u nderwent 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 drivi ng 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 fo r 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 main tain 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 committed4

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. Th e 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 Whi te’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, par ole 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 oth er 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 o ffense 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 co urt, 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 the5

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 in appropriate. Hope v. State , 834 N.E.2 d 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 re cognize 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 som e 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 natu re 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 a t sentencing, which referenced her recent baptism, asked for help with her alcohol6

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 gene rally 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 offense s 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, age d 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 a7

safety seat. It is fortunate that no one was hurt.
As to her character, White, who was t wenty

- seven years old at the time of this offense , already had thirteen misdemeanor convi ctions 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 t he 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 case s , she failed t o 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 d etention, 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, h er 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 scree ns. 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 occasio ns. Although White g ave the judge a letter at sentencing that described her desire to change , at the hearing, she did not accept8

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 demonstr ate that the trial court’s sentence was inappropriate.
Affirmed. VAIDIK, J., and PYLE, J., concur.