Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 1 of 10

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. 

ATTORNEY FOR APPELLANT

Kristina J. Jacobucci 

Newby, Lewis, Kaminski & Jones, LLP 

La Porte, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

James B. Martin 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

Thomas Drnek, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

February 10, 2015 

Court of Appeals Case No. 

46A03-1406-CR-206 

Appeal from the La Porte Circuit 

Court 

Honorable Thomas J. Alevizos, 

Judge 

Cause No. 46C01-1211-FB-528 

Friedlander, Judge. 
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[1] Thomas Drnek appeals the sentence he received following his conviction of 

operating a vehicle while intoxicated causing death, a class B felony.1

 Drnek 

presents the following restated issues for review: 

1. Did the trial court abuse its discretion in finding and evaluating 

aggravating and mitigating factors? 

2. Is Drnek’s sentence inappropriate in light of the nature of the offense and 

his character? 

[2] We affirm. 

[3] In the early morning hours of November 1, 2012, Drnek, while operating a 

vehicle, was involved in a wreck that killed his friend, Jacob Anderson. Tests 

revealed that at the time, Drnek’s blood-alcohol content exceeded .15. The 

alcohol in his system was a major contributing factor to the accident. Drnek 

was charged with operating a vehicle while intoxicated causing death, a class B 

felony, and operating a vehicle while intoxicated in a manner that endangered 

another person, a class A misdemeanor. Drnek pleaded guilty to the class B 

felony offense in exchange for the State’s agreement that the executed sentence 

would be capped at ten years. Following a sentencing hearing, the trial court 

sentenced Drnek to ten years, all executed. 

 

1

 The version of the governing statute, i.e., Ind. Code Ann. § 9-30-5-5(b)(1) (West, Westlaw 2013) in effect at 

the time this offense was committed classified it as a class B felony. This statute has since been revised and in 

its current form reclassifies this as a Level 4 felony. See I.C. § 9-30-5-5(b)(1) (West, Westlaw current with all 

2014 Public Laws of the Second Regular Session and Second Regular Technical Session of the 118th General 

Assembly). The new classification, however, applies only to offenses committed on or after July 1, 2014. See 

id. Because this offense was committed before that date, it retains the former classification. 
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1. 

[4] Drnek first contends the trial court erred in evaluating aggravating and 

mitigating circumstances. We begin with his claim that the trial court erred in 

considering “a single non-violent misdemeanor as an aggravating factor, and 

failed to attach any significant weight to the relevant mitigators.” Appellant’s 

Brief at 5. The factor to which he alludes was described on the presentence 

investigation report (PSI) as a class C misdemeanor charge of failing to 

surrender his suspended driver’s license. Drnek complains that such was not a 

proper aggravator because it was a relatively minor offense, and because he was 

not even aware at the time that his license had been suspended. We believe 

Drnek mischaracterizes the nature of the aggravating circumstance found by the 

trial court. 

[5] It is true that the PSI included this charge. At the sentencing hearing, however, 

Drnek admitted that on May 1, 2013, he was cited for speeding. He did not pay 

that ticket and therefore his license was suspended. On September 24, 2013, he 

was cited for driving while suspended. On October 8, he was again cited for 

driving while suspended. The next day, he was charged with failing to 

surrender a suspended license. In November 2013, he was once again caught 

driving while suspended. Although these offenses were not reflected in the PSI, 

the court noted that he had admitted them on the record and therefore that they 

could properly be considered. 
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[6] When setting out the aggravating and mitigating circumstances at sentencing, 

the trial court described this aggravator as follows: “And there is an aggravator. 

And that aggravator is that he continued to violate the law subsequent to his 

arrest here [.]” Transcript at 56. Other comments by the trial court clearly 

reflect that it referred not only to the “single non-violent misdemeanor” 

identified on the PSI, and to which Drnek alludes, Appellant’s Brief at 5, but also 

to the three citations for driving on a suspended license that occurred after the 

fatal accident.2

 Moreover, we note Drnek’s contention that this “single” offense 

was unrelated to the present offense and therefore may not properly be 

considered. We cannot agree that these offenses are entirely unrelated to 

Drnek’s offense of driving while intoxicated causing death. The trial court did 

not err in citing this as an aggravating factor.

[7] Drnek next contends that the trial court erred in failing to cite certain proffered 

mitigators. An allegation that the trial court failed to find a mitigating factor 

requires the defendant to establish that the mitigating evidence in question is 

not only supported by the record but also that the evidence is significant. 

Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007), opinion on reh’g. A trial court is 

not obligated to accept the defendant’s contentions as to what constitutes a 

mitigating circumstance. Wilkes v. State, 917 N.E.2d 675 (Ind. 2009). Nor is it 

required to explain why it chose not to make a finding of mitigation. Felder v. 

State, 870 N.E.2d 554 (Ind. Ct. App. 2007). Further, a trial court does not abuse 

 

2

 When asked at the hearing why these offenses were not included on the PSI, someone from the Probation 

Department explained, “We don’t run driving records on the PSI.” Transcript at 55. 
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its discretion in failing to find a mitigating factor that is highly disputable in 

nature, weight, or significance. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 

2007), trans. denied. 

[8] At the hearing, Drnek presented evidence that he is HIV positive and, at the 

time of the underlying offense, he was receiving ongoing medical services from 

Aliveness Project of Northwest Indiana. Citing Moyer v. State, 796 N.E.2d 309 

(Ind. Ct. App. 2003), he contends the trial court erred in failing to find this as a 

mitigating factor at sentencing. In Moyer, our Supreme Court held that the 

defendant’s illness was a significant mitigating circumstance because, among other 

things, he “testified at length about the medical hardships that he would endure if 

incarcerated.” Id. at 314. 

[9] Michael Hughes, a lead care coordinator for Aliveness Project of Northwest 

Indiana, testified at Drnek’s sentencing hearing in general terms about the 

treatment Drnek was receiving from Aliveness Project of Northwest Indiana as 

a result of his medical condition. He also testified about substance-abuse 

treatment that Drnek received there. In his final argument, Drnek’s counsel did 

not argue that Drnek’s medical condition was a mitigating factor. Thus, the 

State’s contention on appeal that Drnek failed to argue this as a mitigator is not 

entirely groundless. To the extent that it was argued, however, we note that 

Hughes was questioned about whether such treatment was available for persons 

incarcerated in the DOC system, and if so, whether there was a difference in the 

level and quality of treatment for those in the DOC versus those not in the 

DOC. That discussion was as follows: 
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Q. Do you have any familiarity as to the expertise, or shall I say 

track record, of the Department of Correction in treating inmates who 

have this disease? 

A. I’ve been to Westville. I’ve been to ISP. Usually we get a 

referral call. The system is set up with DOC. They contact our SVH 

and produce the release of information. It is then final to the particular 

care site in that region. We have to schedule an intake to go out and 

meet with that particular incarcerated person before they are 

discharged – they are released. So we can start things when they have 

– when they get out. They will have some services that they know 

they are coming into. 

Q. Let me stop you there. What about while they are in there? Do 

they receive the same quality of care that they would in – 

A. No, they do not. And I have asked in this – because it comes up 

in the point of the intake. Tell me about how – how was your medical 

treatment? It’s just as – one is that. Some receive care. I wouldn’t say 

it would be substandard, but it’s certainly not what they’re capable of 

getting being outside. 

Q. Is it your opinion that there is a real and significant difference 

between the treatment that Mr. Drnek would receive outside of the 

DOC versus what he would receive within the DOC? 

A. Depending on if he was sent – if he were within the DOC system, 

depending on where he was sent, I’ve seen mixed results. 

Transcript at 11-12. 

[10] As indicated above, in Moyer, the defendant testified at length about the medical 

hardships he would endure if he were incarcerated. For instance, the record 

reflected that the defendant’s illness required “constant medical attention” and 
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“frequent tracheal cleanings and sterile catheters, which the jail [could not] provide 

regularly.” Moyer v. State, 769 N.E.2d at 314. Our review of the record reveals 

that Drnek did not provide such evidence. Even Hughes’s testimony about the 

difference between the treatment Drnek would receive in and out of prison was 

equivocal. Therefore, Drnek failed to conclusively establish that treatment for 

his medical condition was unavailable within the DOC system, or even that it 

would be qualitatively different than what he could receive outside of the DOC. 

As a result, the trial court did not err in failing to find this as a mitigating 

circumstance. 

[11] Drnek also contends that “the trial court failed to consider that the circumstances of 

the crime are unlikely to recur and that [his] character and attitude indicate that he is 

unlikely to commit another offense.” Appellant’s Brief at 10. The State contends 

that Drnek waived these errors because he did not mention them to the trial court at 

the sentencing hearing. We agree. Banks v. State, 841 N.E.2d 654 (Ind. Ct. App. 

2006), trans. denied. 

[12] Even were they not waived however, the trial court was not required to consider 

them because their significance is disputable. Drnek acknowledged at the 

sentencing hearing that he continued to drink after the accident, and also 

acknowledged that he continued to drive his vehicle even after his license was 

suspended. Under these circumstances, the trial court was not compelled to find 

that he was unlikely to commit another such offense. 

2. 
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[13] Drnek contends that his sentence is inappropriate in light of the nature of his 

offense and his character. Article 7, section 4 of the Indiana Constitution grants 

our Supreme Court the power to review and revise criminal sentences. See 

Knapp v. State, 9 N.E.3d 1274 (Ind. 2014), cert. denied, 2015 WL 133288 (Jan. 

12, 2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized 

this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind. 

2008). Per Indiana Appellate Rule 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). 

“Sentencing review under Appellate Rule 7(B) is very deferential to the trial 

court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Drnek bears the 

burden on appeal of persuading us that his sentence is inappropriate. Conley v. 

State, 972 N.E.2d 864. 

[14] The determination of whether we regard a sentence as appropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v. 

State, 895 N.E.2d at 1224). Moreover, “[t]he principal role of such review is to 

attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 

2013). It is not our goal in this endeavor to achieve the perceived “correct” 

sentence in each case. Knapp v. State, 9 N.E.3d 1274. Accordingly, “the 

question under Appellate Rule 7(B) is not whether another sentence is more
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appropriate; rather, the question is whether the sentence imposed is 

inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) 

(emphasis in original). Our Supreme Court has indicated that when analyzing 

the appropriateness of a criminal sentence, there is “no right answer ... in any 

given case.” Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (quoting Cardwell v. State,

895 N.E.2d at 1224). Rather, appellate review and, where appropriate, revision 

“ultimately boils down to the appellate court’s ‘collective sense of what is 

appropriate, not a product of a deductive reasoning process.’” Id. (quoting 

Cardwell v. State, 895 N.E.2d at 1225). Ultimately, we “focus on the forest—the 

aggregate sentence—rather than the trees—consecutive or concurrent, number 

of counts, or length of the sentence on any individual count.” Id.

[15] In order to assess the appropriateness of a sentence, we first look to the 

statutory ranges established for the classification of the relevant offenses. Drnek 

was convicted of a class B felony – operating a vehicle while intoxicated 

causing death. The advisory sentence for a class B felony is ten years, with the 

minimum and maximum sentence being six and twenty years, respectively. See 

Ind. Code Ann. § 35-50-2-5 (West, Westlaw 2013). Drnek was sentenced to the 

advisory term, i.e., ten years. 

[16] The evidence reveals that Drnek has been aware since at least 2009 that he has 

a substance-abuse problem. On the night in question, Drnek consumed so 

much alcohol that his BAC registered well above the legal limit. He then drove 

with another person as a passenger and wrecked the vehicle, causing that 

person’s death. The victim was a friend. Yet, Drnek continued to drink 
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alcohol after the date of the accident and then subsequently continued to drive 

while his license was suspended. These circumstances do not reflect positively 

on his character. Indeed, the trial court could reasonably have concluded that 

Drnek poses some risk of reoffending. Accordingly, the advisory ten-year 

sentence imposed by the trial court was not inappropriate. 

[17] Judgment affirmed. 

Kirsch, J., and Crone, J., concur.