Court of Appeals of Indiana | Opinion 20A03-1712-CR-2922 | June 29, 2018 Page 1 of 13

ATTORNEY FOR APPELLANT

Donald R. Shuler

Barkes, Kolbus, Rife & Shuler, LLP

Goshen, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Alonzo R. Weekly,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 29, 2018

Court of Appeals Case No.

20A03-1712-CR-2922

Appeal from the Elkhart Superior 

Court

The Honorable Gretchen S. Lund, 

Judge

The Honorable Kristine A. 

Osterday, Magistrate

Trial Court Cause No.

20D04-1703-F6-392

Najam, Judge.
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Statement of the Case

[1] Alonzo R. Weekly appeals his convictions and sentence following a jury trial 

for operating a vehicle while intoxicated with a previous conviction, as a Level 

6 felony, and a habitual vehicular substance offender (“HVSO”) enhancement. 

He presents two issues for our review:

1. Whether the trial court abused its discretion when it 

admitted into evidence the result of a chemical breath test 

and the testimony of two officers.

2. Whether his sentence is inappropriate in light of the nature 

of the offense and his character.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] At 12:41 a.m. on March 11, 2017, Officer Kevin Corona and Corporal Lee 

Brooks with the Elkhart Police Department observed Weekly driving a 

motorized scooter through an intersection “at what appeared to be a high rate 

of speed.” Tr. Vol. II at 85. The officers, who were in a marked police vehicle, 

began to follow Weekly, and they witnessed Weekly fail to stop at two stop 

signs. Accordingly, the officers initiated a traffic stop. 

[4] When Officer Corona and Corporal Brooks approached Weekly, they both 

observed that he had slurred speech and bloodshot, glassy eyes. They could

also smell an odor of alcohol on Weekly’s breath. Based on those observations, 

Officer Corona conducted three standardized field sobriety tests on Weekly. 
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Weekly failed the first test, and he did not complete the other two tests. Officer 

Corona then asked Weekly to submit to a certified chemical breath test at the 

police station. Weekly agreed to take the test. At that point, the officers 

transported Weekly to the police station, and Corporal Brooks performed the 

certified breath test. The results of the breath test showed that Weekly had an 

alcohol concentration of 0.207 gram of alcohol per 210 liters of breath. 

[5] The State charged Weekly with one count of operating a vehicle while 

intoxicated in a manner that endangers a person, as a Class A misdemeanor 

(Count I), and one count of operating a vehicle with an alcohol concentration 

equivalent to at least 0.15 gram of alcohol per 210 liters of breath, as a Class A 

misdemeanor (Count II). The State later added one count of operating a 

vehicle while intoxicated with a previous conviction, as a Level 6 felony, and

alleged that Weekly was an HVSO. Prior to trial, Weekly filed a motion to 

suppress evidence alleging that the evidence against him was obtained illegally 

because “the stop was unjustified without reasonable suspicion or probable 

cause.” Appellant’s App. Vol. II at 34. The trial court denied that motion after 

a hearing. 

[6] The trial court held a bifurcated jury trial on October 23, 2017. During the first 

phase of the trial, both Officer Corona and Corporal Brooks testified to their 

observations of Weekly during the traffic stop, including the results of the field 

sobriety tests, without objection from Weekly. The State also presented as 
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evidence, without objection, the video recording of the traffic stop.1 And the 

State presented the results of Weekly’s chemical breath test, which the trial 

court admitted over Weekly’s objection. 

[7] At the conclusion of the first phase of his trial, the jury found Weekly guilty of 

Counts I and II. In phase two of the trial, Weekly pleaded guilty to operating a 

vehicle while intoxicated with a previous conviction, as a Level 6 felony, and he 

admitted to being an HVSO. The trial court merged the guilty verdicts for 

Counts I and II and entered judgment of conviction on the Level 6 felony and 

the HVSO enhancement. The trial court sentenced Weekly to two years with 

the Department of Correction for operating a vehicle while intoxicated with a 

previous conviction, as a Level 6 felony. And, for the HVSO enhancement, the 

trial court imposed “an additional three (3) years at the Indiana Department of 

Correction, consecutive to the sentence” for the Level 6 felony.

2

 Appellant’s 

App. Vol. II at 124. This appeal ensued.

 

1

 Weekly affirmatively stated that he had “no objection” to the admission of the video exhibit as evidence. 

Tr. Vol. II at 98. However, Weekly did object to the publication of the video. The trial court granted the 

State’s motion to publish over Weekly’s objection. 

2

 Weekly was also on probation for two prior offenses at the time of his sentencing hearing. Accordingly, 

the trial court revoked Weekly’s probation and imposed his previously suspended sentence for one offense 

and ordered Weekly back to reporting probation for the second offense. The trial court ordered both of those 

sentences to run consecutive to the sentence imposed for the instant offense. 
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Discussion and Decision

Issue One: Admission of Evidence

[8] Weekly first contends that the trial court abused its discretion when it admitted 

into evidence the results of the chemical breath test and the officers’ testimony, 

which included their observations of Weekly following the traffic stop and the 

results of the field sobriety tests. Weekly initially challenged the admission of 

this evidence through a motion to suppress but now appeals following a 

completed trial.3 Thus, the issue is appropriately framed as whether the trial 

court abused its discretion by admitting the evidence at trial. Lanham v. State, 

937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010). This court has previously held 

that

[o]ur review of rulings on the admissibility of evidence is 

essentially the same whether the challenge is made by a pre-trial 

motion to suppress or by trial objection. [Lundquist v. State, 834 

N.E.2d 1061, 1067 (Ind. Ct. App. 2005).] We do not reweigh the 

evidence, and we consider conflicting evidence most favorable to 

the trial court’s ruling. Id. However, we must also consider the 

uncontested evidence favorable to the defendant. Id. 

Harbaugh v. State, 96 N.E.3d 102, 106 (Ind. Ct. App. 2018). 

 

3

 Throughout his brief on appeal, Weekly also contends that the trial court erred when it denied his motion 

to suppress. However, because Weekly appeals after a completed trial, “the question of whether the trial 

court erred in denying his motion to suppress is no longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. 

Ct. App. 2010). 
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[9] Weekly specifically contends that the trial court abused its discretion when it 

admitted the results of the chemical breath test over his objection and that, 

without that evidence, “there would be no remaining probative evidence 

sufficient to convict [Weekly] of Operating While Intoxicated or Operating with 

an ACE of 0.15 or greater.” Appellant’s Br. at 18. He also contends that the 

trial court committed fundamental error when it admitted into evidence the 

officers’ testimony, including their observations of Weekly during the traffic 

stop and the results of the field sobriety tests.

4

[10] Weekly asserts that the trial court should not have admitted the evidence 

because the officers did not have reasonable suspicion to stop him and, 

therefore, the stop violated his Fourth Amendment rights.5 The Fourth 

Amendment to the United States Constitution protects citizens from 

unreasonable searches and seizures. U.S. Const. amend. IV. 

[11] Our Supreme Court has held that

[o]ur jurisprudence reflects two types of police encounters that 

implicate Fourth Amendment protection: the investigatory stop 

and the custodial arrest. Clark v. State, 994 N.E.2d 252, 261 (Ind. 

2013). An investigatory stop is generally brief in duration and is 

constitutionally permissible so long as the law enforcement 

officer “has a reasonable suspicion supported by articulable facts 

 

4

 Weekly alleges that the trial court committed fundamental error when it admitted the officers’ testimony 

because he did not object at trial. 

5

 While Weekly makes one reference in his brief to Article I, Section 11 of Indiana Constitution, he has not 

developed a separate argument on appeal based upon the Indiana Constitution. Accordingly, we will only 

review whether the traffic stop violated his rights under the federal constitution.
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that criminal activity ‘may be afoot.’” United States v. Sokolow, 

490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting 

Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 

(1968)). The custodial arrest constitutes a greater restriction 

upon the subject’s liberty and requires a commensurately greater 

justification: probable cause. Clark, 994 N.E.2d at 261.

State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014). 

[12] Here, the question is whether the police had reasonable suspicion to support a 

brief investigatory stop, i.e., a “Terry stop,” of Weekly’s motorized scooter. 

“When determining whether an officer had reasonable suspicion for a Terry

stop, we consider whether ‘the totality of the circumstances’ presented ‘a 

particularized and objective basis’ for the officer’s belief that the subject was 

engaged in criminal activity.” Id. (quoting Sellmer v. State, 842 N.E.2d 358, 360 

(Ind. 2006)). 

[13] It is well-settled that “[i]f an officer observes a driver commit a traffic violation, 

he has probable cause—and thus also the lesser included reasonable suspicion—

to stop that driver.” Id. And, here, both Officer Corona and Corporal Brooks 

testified that they witnessed Weekly fail to stop at two stop signs. Thus, the 

officers observed Weekly commit two traffic violations and, as such, the officers 

had probable cause to stop Weekly.6 See, e.g., Staten v. State, 946 N.E.2d 80, 83 

 

6

 Weekly contends that the officers did not have reasonable suspicion to stop him because “neither officer 

can testify to what the relevant speed limit was to establish that [Weekly] committed the traffic violation of 

speeding.” Appellant’s Br. at 15-16. But, while both officers testified that Weekly’s high rate of speed is 

what drew the attention of the officers, the affidavit for probable cause states that the reason for the traffic 

stop was only because Weekly had “disregarded stop signs[.]” Appellant’s App. Vol. II at 15. 
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(Ind. Ct. App. 2011). And as soon as Officer Corona and Corporal Brooks 

approached Weekly, they noticed that his speech was slurred, his eyes were 

bloodshot, and his breath smelled of alcohol. Weekly then attempted to 

perform three field sobriety tests, but he failed one and did not complete the 

other two. Finally, Weekly consented to a chemical breath test. The traffic 

stop and subsequent investigation did not violate Weekly’s Fourth Amendment 

rights. Weekly’s argument on appeal is simply a request for this court to 

reweigh the evidence, which we will not do. The trial court did not abuse its 

discretion when it admitted into evidence the results of the breath test that 

followed the traffic stop. See id. And the trial court did not commit any error, 

let alone fundamental error, when it admitted the testimony of the two officers. 

Accordingly, we affirm Weekly’s convictions.

Issue Two: Sentencing

[14] Weekly next contends that his sentence is inappropriate in light of the nature of 

the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he 

Court may revise a sentence authorized by statute if, after due consideration of 

the trial court’s decision, the Court finds that the sentence is inappropriate in 

light of the nature of the offense and the character of the offender.” The 

Indiana Supreme Court has recently explained that: 

The principal role of appellate review should be to attempt to 

leaven the outliers . . . but not achieve a perceived “correct” 

result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008). Defendant has the burden to persuade us that the 

sentence imposed by the trial court is inappropriate. Anglemyer v. 
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State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), 

decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original). 

[15] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate 

sentence to the circumstances presented, and the trial court’s judgment “should 

receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we 

regard a sentence as inappropriate at the end of the day turns on “our sense of 

the culpability of the defendant, the severity of the crime, the damage done to 

others, and myriad other factors that come to light in a given case.” Id. at 1224. 

The question is not whether another sentence is more appropriate, but rather 

whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 

268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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 

defendant’s character (such as substantial virtuous traits or persistent examples 

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). 

Further, the location where a sentence is to be served is an appropriate focus for 

application of our review and revise authority. See Biddinger v. State, 868 N.E.2d 

407, 414 (Ind. 2007). 

[16] Weekly was convicted of one count of operating a vehicle while intoxicated 

with a previous conviction, as a Level 6 felony, and he was found to be an 

HVSO. The sentencing range for a Level 6 felony is six months to two and onehalf years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b) 
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(2018). And the court shall sentence a person found to be an HVSO to an 

additional term of one to eight years of imprisonment. I.C. § 9-30-15.5-2(d). 

[17] Here, the trial court identified as mitigating factors the fact that Weekly has an 

outstanding child support obligation and that Weekly’s imprisonment will place 

a hardship on his children. The trial court also acknowledged the fact that 

Weekly’s Indiana Risk Assessment System score reflected a low risk to 

reoffend. But the trial court found the following aggravating circumstances: 

Weekly’s criminal history; that Weekly has a history of violating conditions of 

probation and community corrections; and that previous sanctions have not 

been successful in keeping Weekly from engaging in criminal activity. 

Accordingly, the trial court sentenced Weekly to an aggregate term of five years 

in the Department of Correction. 

[18] Weekly maintains that his sentence is inappropriate in light of the nature of the 

offense because “the actual actions by [Weekly] in the present case are the bare 

elements of an offense that is a Class A misdemeanor” and that his offense was 

only elevated to a Level 6 felony because of a prior offense. Appellant’s Br. at 

24. He further contends that the nature of his offense is “unremarkable” and 

that he “was cooperative with the police during the traffic stop and during his 

arrest[.]” Id. Be that as it may, we consider both the nature of the offense and

Weekly’s character in our review. See Williams v. State, 891 N.E.2d 621, 633 

(Ind. Ct. App. 2008). And Weekly’s character persuades us that his sentence is 

not inappropriate. 
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[19] At the time of the instant offense, Weekly’s criminal history included three

felony convictions and four misdemeanor convictions, and three of those 

convictions were for operating a vehicle while intoxicated. And Weekly has 

had his probation revoked on one previous occasion. Further, Weekly was on 

probation for two prior instances of operating a vehicle while intoxicated when 

he committed the current offense. As such, we cannot say that Weekly’s fiveyear sentence is inappropriate in light of his character. 

[20] Weekly also asserts that his placement in the Department of Correction is 

inappropriate because his incarceration would result in a hardship on his 

children and because “there were more appropriate options to simply 

warehousing a defendant in the Department of Corrections [sic] for the entirety 

of a sentence.” Appellant’s Br. at 27. But, as the trial court found, Weekly 

“has a history of violating conditions of probation and community corrections” 

and “other sanctions previously imposed have not been successful in keeping 

[Weekly] from engaging in criminal activity.” Appellant’s App. Vol. II at 123. 

Accordingly, Weekly has not demonstrated that his placement in the 

Department of Correction is inappropriate. Weekly’s five-year sentence 

executed in the Department of Correction is not inappropriate and we affirm 

his sentence. 

[21] However, we also address the State’s contention that the trial court erred when 

it ordered the HVSO portion of Weekly’s sentence to be consecutive to the 

sentence for the felony conviction. The State contends that “the habitual 

portion should be an enhancement of the sentence for the Level 6 felony” 
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pursuant to Indiana Code Section 9-30-15.5-2. Appellee’s Br. at 5 n.1. We 

agree. 

[22] Indiana Code Section 9-30-15.5-2 provides, in relevant part, that “[t]he court 

shall sentence a person found to be a habitual vehicular substance offender to 

an additional fixed term of at least one (1) year but not more than eight (8) 

years of imprisonment, to be added to the term of imprisonment imposed under 

IC 35-50-2 or IC 35-50-3.” I.C. § 9-30-15.5-2(d) (emphasis added). 

[23] We hold that the “to be added” language in the HVSO statute is equivalent to

the “attach” language in Indiana’s habitual offender statute, which provides, in 

relevant part:

Habitual offender is a status that results in an enhanced sentence. 

It is not a separate crime and does not result in a consecutive 

sentence. The court shall attach the habitual offender 

enhancement to the felony conviction with the highest sentence 

imposed and specify which felony count is being enhanced.

I.C. 35-50-2-8(j) (emphasis added). 

[24] And it is well-settled that “‘[a] habitual offender finding does not constitute a 

separate crime nor result in a separate sentence, but rather results in a sentence 

enhancement imposed upon the conviction of a subsequent felony.’” Kilgore v. 

State, 922 N.E.2d 114, 120 (Ind. Ct. App. 2010) (quoting Greer v. State, 680 

N.E.2d 526, 527 (Ind. 1997)). Accordingly, we hold that an HVSO finding 

does not constitute a separate crime nor result in a separate sentence but is an 

enhancement to an underlying felony conviction. The trial court erred when it 
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ordered the HVSO sentence to run as a separate, consecutive sentence. We 

reverse that portion of the sentencing order and remand to the trial court with 

instructions to resentence Weekly in accordance with this opinion. See id. 

[25] Affirmed in part, reversed in part, and remanded with instructions. 

Robb, J., and Altice, J., concur.