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.

A TTORNEY FOR A PPELLANT Kristina J. Jacobucci Newby, Lewis, Kaminski & Jones, LLP La Porte, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana
James B. Martin Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Thomas Drnek, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -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.Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 2 of 10 [1] Thomas Drnek appeals the sentence he received following his conviction of operating a vehicle while intoxicate d causing death, a class B felony. 1 Drnek presents the following rest ated issues for review:

1. Did the trial court abuse its discre tion in finding and evaluating aggravating and mitigating factors? 2. Is Drnek’s sentence inappr opriate in light of the nature of the offense and his character?

[2] We affirm.

[3] In the early morning hour s 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 blo od-alcohol content exceeded .15. The alcohol in his system was a major contri buting factor to the accident. Drnek was charged with operating a vehicle whil e intoxicated causing death, a class B felony, and operating a vehicle while in toxicated 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 th at the executed sentence would be capped at ten years. Followin g a sentencing hearing, the trial court sentenced Drnek to ten y ears, 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 cla ssified 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 118 th General Assembly). The new classification, however, applies on ly to offenses committed on or after July 1, 2014. See id. Because this offense was committed before that date, it retains the former classification.Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 3 of 10 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 no n-violent misdemeanor as an aggravating factor, and failed to attach any significant we ight to the relevant mitigators.” Appellant’s Brief at 5. The factor to which he allu des was described on the presentence investigation report (PSI) as a cla ss 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 relati vely minor offense, and because he was not even aware at the time that his li cense had been suspen ded. We believe Drnek mischaracterizes the nature of the aggravating circumst ance found by the trial court.

[5] It is true that the PSI incl uded this charge. At the se ntencing hearing, however, Drnek admitted that on May 1, 2013, he was cited for speeding. He did not pay that ticket and therefore hi s 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 da y, he was charged with failing to surrender a suspended license. In No vember 2013, he was once again caught driving while suspended. Al though these offens es 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.Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 4 of 10 [6] When setting out the aggravating and mi tigating circumstances at sentencing, the trial court described this aggravator as follows: “And ther e is an aggravator. And that aggravator is that he continue d 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 cont ention that this “single” offense was unrelated to the pres ent offense and therefore may not properly be considered. We cannot agr ee that these offenses ar e entirely unrelated to Drnek’s offense of driving while intoxicate d causing death. The trial court did not err in citing this as an aggravating factor.

[7] Drnek next contends that the trial court er red in failing to cite certain proffered mitigators. An allegation that the trial court failed to find a mitigating factor requires the defendant to es tablish 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 th e 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.Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 5 of 10 its discretion in failing to find a mitigat ing factor that is hi ghly 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 presen ted evidence that he is HIV positive and, at the time of the underlying offense, he was receiving ongoing medical services from Aliveness Project of Nort hwest 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 mitig ating circumstance because, among other things, he “testified at length about the me dical hardships that he would endure if incarcerated.” Id. at 314.

[9] Michael Hughes, a lead care coordinato r for Aliveness Project of Northwest Indiana, testified at Drne k’s sentencing hearing in general terms about the treatment Drnek was receiving from Aliv eness 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 conditio n was a mitigating factor. Thus, the State’s contention on appeal that Drnek fa iled 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 su ch 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 thos e in the DOC versus those not in the DOC. That discussion was as follows:Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 6 of 10 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 incarc erated 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. Wh at 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 se nt – 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 re quired “constant medical attention” andCourt of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 7 of 10 “frequent tracheal cleanings and sterile cath eters, 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, Drne k failed to conclusively es tablish that treatment for his medical condition was unavailable with in 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 th is as a mitigating circumstance.

[11] Drnek also contends that “the trial court fa iled to consider that the circumstances of the crime are unlikely to recur and that [his] character and a ttitude 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 di sputable. 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 co mmit another such offense.

2.Court of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 8 of 10 [13] Drnek contends that his sentence is ina ppropriate in light of the nature of his offense and his character. Article 7, sect ion 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 pers uading 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 defe ndant, 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 end eavor 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 moreCourt of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 9 of 10 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 Co urt has indicated that when analyzing the appropriateness of a criminal senten ce, 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 re view 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 classifi cation 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 felo ny is ten years, with the minimum and maximum sentence being si x and twenty years, respectively. See Ind. Code Ann. § 35-50-2-5 (West, West law 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 ni ght in question, Dr nek consumed so much alcohol that his BAC registered well above the legal limi t. He then drove with another person as a passenger an d wrecked the vehicle, causing that person’s death. The victim was a fr iend. Yet, Drnek continued to drinkCourt of Appeals of Indiana | Memorandum Decision 46A03-1406-CR-206 | February 10, 2015 Page 10 of 10 alcohol after the date of the accident an d then subsequently continued to drive while his license was suspended. These circumstances do not reflect positively on his character. Indeed, the trial cour t 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.