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Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 07 2012, 10:35 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS W. VANES GREGORY F. ZOELLER
Crown Point, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL R. KROHN, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1203-CR-131
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Diane Ross Boswell, Judge
Cause No. 45G03-1108-FD-166
December 7, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Michael R. Krohn (Krohn), appeals his sentence for
operating a motor vehicle while intoxicated causing serious bodily injury, a Class D
felony, Ind. Code § 9-30-5-4.
We affirm.
ISSUES
Krohn raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in identifying aggravating and
mitigating factors; and
(2) Whether the trial court’s sentence was improper in light of the nature of
Krohn’s offense and his character.
FACTS AND PROCEDURAL HISTORY
On the afternoon of April 23, 2011, William Goodwin (Goodwin) was riding on
his motorcycle southbound on Cline Avenue in Schererville, Indiana. As he approached
the parking lot of a restaurant, Krohn pulled out directly in front of him driving a
Chevrolet truck. Krohn saw Goodwin approaching and stopped in the middle of the
roadway, unsure what to do. Goodwin applied his brakes, but was unable to stop his
motorcycle and ran into the truck’s driver’s side door.
A witness saw the accident and ran inside the restaurant to prompt someone to call
911. She then rushed back out to attend to Goodwin at the scene of the crash. She talked
to Goodwin and did not smell any alcohol on his breath. She also spoke to Krohn, who
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had gotten out of his truck and lit a cigarette. She noticed that Krohn “definitely seemed
like he was on something because he was out of it.” (Appellant’s App. p. 26).
Police officers reported to the scene and questioned Krohn. He admitted that he
had been drinking the previous night and that prior to the accident he had been drinking
an energy drink, which was in his truck. The energy drink was a Sparks energy drink and
contained six percent alcohol. The officers found one full can of Sparks energy drink and
one completely empty can in the truck’s passenger compartment. They also observed
that there was a 1.75 liter bottle of Bacardi and a 1.75 liter bottle of Southern Comfort in
the passenger compartment, both of which were open and had contents missing.
While talking to Krohn, the police officers noticed that he had a yellow stain on
his teeth, lips, tongue, and mouth and also had an odor of an “alcoholic type beverage” on
his breath. (Appellant’s App. p. 25). Additionally, he had watery and bloodshot eyes, a
flushed red face, slurred and mumbled speech, and poor hand coordination. The officers
conducted multiple field sobriety tests, and Krohn failed each test. They also
administered a portable breath test, which registered that Krohn had a blood alcohol
content of 0.21. Krohn thereafter refused to take further chemical tests.
Goodwin was taken by ambulance to the local hospital, where he was treated for
multiple blunt force trauma and intra-abdominal bleeding. Subsequently, he was
transferred to a hospital in Illinois, where he received additional treatment for two
months. During that time, he spent three weeks in a medically induced coma, had to
undergo thirteen different surgeries, and suffered from septic shock and pneumonia. His
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injuries required that he undergo an ileostomy procedure. Seven months later, he still had
and maintained an ileostomy bag, and it is uncertain whether he will ever be able to have
the bag removed.
On August 3, 2011, the State filed an Information charging Krohn with Count I,
operating a vehicle while intoxicated causing serious bodily injury, a Class D felony, I.C.
§ 9-30-5-4; Count II, operating a vehicle while intoxicated, a Class A misdemeanor, I.C.
§ 9-30-5-2; and Count III, operating a vehicle while intoxicated, a Class C misdemeanor,
I.C. § 9-30-5-2. On January 18, 2012, Krohn pled guilty to all three Counts.
On February 16, 2012, the trial court accepted Krohn’s plea and held a sentencing
hearing, at which both Goodwin and his wife testified to the impact Krohn’s actions had
made on their lives. Goodwin’s wife told the trial court that Goodwin and her family
have suffered “[i]ndescribable” mental anguish. (Transcript p. 24). Goodwin has trouble
sleeping because he has to sleep in a recliner rather than his bed, due to the ileostomy
bag, and has to get up three or four times a night to drain the bag. During the day, he has
to deal with leaks from the bag, which are embarrassing and which he can never predict.
In addition, Goodwin’s wife testified that he suffers from night terrors concerning the
accident, as well as problems with his back and stomach. Goodwin no longer has
stomach muscles and requires help to get in and out of his recliner. At the time of the
sentencing hearing, Goodwin still required an additional surgery. His wife testified that
even if doctors are able to remove his ileostomy bag during this surgery, he will still have
to live with significant scarring on his chest, neck, and abdomen for the rest of his life.
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At the conclusion of the evidence, the trial court sentenced Krohn to thirty months
on Count I, with six of those months to be served in a community transition program. It
found that the seriousness of Krohn’s offense was an aggravating factor, while his lack of
a criminal history was a mitigating factor. The trial court did not enter a judgment of
conviction on Counts II and III as they were lesser-included offenses.
Krohn now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Aggravating and Mitigating Factors
Krohn argues on appeal that the trial court abused its discretion in identifying
aggravating and mitigating factors. Under our advisory sentencing scheme, a trial court
may impose any legal sentence “regardless of the presence or absence of aggravating
circumstances.” Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App. 2007), trans. denied.
However, trial courts are required to issue a sentencing statement whenever sentencing a
defendant for a felony. Id. If the sentencing statement includes a finding of aggravating
or mitigating circumstances, then it must identify all significant aggravating and
mitigating circumstances and explain why each circumstance has been determined to be
either aggravating or mitigating. Id. We review a trial court’s sentencing decisions for
an abuse of discretion. Id. A trial court can abuse its discretion by either failing to issue
a sentencing statement, by issuing a statement that indicates the reasons for a sentence
“but the record does not support the reasons, or the sentencing statement omits reasons
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that are clearly supported by the record and advanced for consideration, or the reasons
given are improper as a matter of law.” Id.
A. Aggravating Factors
With respect to aggravating factors, Krohn argues that the trial court abused its
discretion because it did not explain why the seriousness of his offense was an
aggravating factor. He asserts that, instead, the damages that resulted from his offense
were typical of operating a vehicle while intoxicated causing bodily injury. In addition,
he argues that the trial court abused its discretion in finding the seriousness of his offense
as an aggravating factor because “serious bodily injury” is also an element of the offense.
In its sentencing statement, the trial court stated that “the seriousness of this crime
does require an aggravated sentence” without explaining the evidence supporting that
finding. (Tr. p. 41). Krohn notes that the trial court did not identify whether the
surgeries Goodwin underwent were serious or why he was medically induced into a
coma. We cannot agree that the trial court needed to go so far as to rate the seriousness
of each individual surgery in determining the severity of Goodwin’s injuries. Instead, we
conclude that while the trial court’s sentencing statement was brief, the evidence
supported its determination that the seriousness of Krohn’s offense was an aggravating
factor. Goodwin and his wife testified to the pain and mental anguish Goodwin has
suffered as a result of Krohn’s actions, including undergoing several surgeries, being
medically induced into a coma, having to use an ileostomy bag, and having to live with
significant scarring for the rest of his life. In light of this evidence, we cannot agree that
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the trial court abused its discretion in finding that the seriousness of Krohn’s offense was
an aggravating factor.
In addition, we do not agree with Krohn that this aggravating factor was improper
because “serious bodily injury” was also an element of the offense. It is well-established
in Indiana that “a trial court may not use a material element of the offense as an
aggravating circumstance.” Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011),
trans. denied. However, the nature and circumstances of a crime may be a valid
aggravator. Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012). For instance,
the harm or injury suffered by a victim may be aggravating “if such harm was significant
and greater than the elements necessary to prove the commission of the offense.” Id.
Under the Indiana Code, an injury can rise to the level of serious bodily injury
merely if there is “extreme pain” or “unconsciousness.” See I.C. § 35-31.5-2-292. As
listed above, Goodwin’s injuries were far more serious than “extreme pain” or
“unconsciousness.” See I.C. § 35-31.5-2-292. Accordingly, we conclude that the trial
court did not abuse its discretion in determining that the harm Goodwin suffered was
greater than necessary to prove the commission of the offense; thus, the trial court did not
abuse its discretion in finding that the seriousness of the crime was an aggravating factor.
B. Mitigating Factors
With regards to mitigating circumstances, Krohn argues that the trial court abused
its discretion in failing to consider his guilty plea as a mitigating factor. He asserts that
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the trial court should have given the plea mitigating weight as he did not receive anything
from the State in exchange for the plea, and he did not wait until the eve of trial to plead.
In order to show that a trial court failed to identify or find a mitigating factor, the
defendant must establish that the mitigating evidence is both significant and clearly
supported by the record. Rogers v. State, 958 N.E.2d 4, 9 (Ind. Ct. App. 2011).
Although a failure to find mitigating circumstances clearly supported by the record may
imply that the trial court improperly overlooked them, the trial court is not obligated to
explain why it has chosen not to find mitigating circumstances. Id. Likewise, the trial
court is not obligated to accept the defendant’s argument as to what constitutes a
mitigating factor. Id. Our supreme court has held that a guilty plea does not
automatically amount to a significant mitigating factor. Wells v. State, 836 N.E.2d 475,
479 (Ind. Ct. App. 2005), trans. denied. For instance, a guilty plea does not rise to the
level of significant mitigation where the defendant has received a substantial benefit from
the plea or where the evidence against the defendant was such that the decision to plead
guilty was merely a pragmatic one. Id.
We conclude that Krohn’s decision to plead guilty was merely pragmatic in light
of the overwhelming evidence against him. In order to convict Krohn of operating a
vehicle while intoxicated causing serious bodily injury, the State was required to prove
that he “cause[d] serious bodily injury to another person when operating a vehicle: []
with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of
alcohol per: [] two hundred ten [] liters of [his] breath; [or] while intoxicated.” I.C. § 9-
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30-5-4. Krohn admitted that he had been drinking the previous night and had been
drinking an energy drink containing alcohol prior to the accident. Police officers found
two 1.75 liter bottles of alcohol in Krohn’s passenger compartment, and each was
partially empty. Further, Krohn failed multiple field sobriety tests; registered as having a
blood alcohol content of 0.21 on a portable breath test; and had an odor of an “alcoholic
type beverage” on his breath, watery and bloodshot eyes, a flushed face, slurred and
mumbled speech, and poor hand coordination. Given this ample evidence of Krohn’s
intoxication and the undisputed facts that Krohn was operating a motor vehicle and
caused serious bodily injury, we conclude that the trial court did not abuse its discretion
in declining to find that Krohn’s plea was a mitigating factor.
II. Nature of Offense and Character of Offender
Next, Krohn argues that his sentence was inappropriate in light of the nature of his
offense and his character. Under Indiana Appellate Rule 7(B), this 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. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006).
Although this court is not required to use “great restraint,” we nevertheless exercise
deference to a trial court’s sentencing decision, both because Appellate Rule 7(B)
requires that we give “due consideration” to that decision and because we recognize the
unique perspective a trial court has when making decisions. Stewart v. State, 866 N.E.2d
858, 865-66 (Ind. Ct. App. 2007). The “principal role of appellate review should be to
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attempt to leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
A Class D felony carries a sentence ranging of six months to three years, with an
advisory sentence of one and one-half years. Because the trial court sentenced Krohn to
three years, he received the maximum sentence possible for a Class D felony.
In regards to the nature of Krohn’s offense, he again argues that the trial court did
not identify any particular circumstances of his offense that made it more egregious than
other cases of operating a vehicle while intoxicated causing bodily injury. He claims that
his offense was “standard” and did not justify the maximum sentence for a Class D
felony. (Appellant’s Br. p. 7). We disagree. Pursuant to I.C. § 9-30-5-4, a person may
be convicted for causing serious bodily injury while operating a vehicle if that person has
an alcohol concentration of 0.08 grams of alcohol per 210 liters of the person’s breath.
When the police officers administered a portable breath test to Krohn, they found that he
had a blood alcohol content of 0.21, over two times the legal limit.
Further, Krohn’s offense had broad repercussions. As a result of Krohn’s actions,
Goodwin and his family have suffered “[i]ndescribable” mental anguish. (Tr. p. 24).
Goodwin has trouble sleeping because he has to sleep in a recliner rather than his bed,
due to the ileostomy bag, and has to get up three or four times a night to drain the bag.
During the day, he has to deal with leaks from the bag, which are embarrassing and
which he can never predict. In addition, Goodwin’s wife testified that he suffers from
10
night terrors concerning the accident, as well as problems with his back and stomach.
Goodwin no longer has stomach muscles and requires help to get in and out of his
recliner. At the time of the sentencing hearing, Goodwin still required an additional
surgery. His wife testified that, even if doctors are able to remove his ileostomy bag
during this surgery, he will still have to live with significant scarring on his chest, neck,
and abdomen for the rest of his life. Accordingly, we cannot conclude that the nature of
Krohn’s offense was “standard” and justifies a lower sentence.
Finally, Krohn argues that his guilty plea and lack of criminal history illustrate his
good character. We find little merit in this argument because, as we stated above,
Krohn’s decision to plead guilty was merely pragmatic in light of the overwhelming
evidence against him. In addition, Krohn was previously convicted of one misdemeanor
offense, also related to alcohol. We do agree with Krohn that, other than his previous
misdemeanor offense, his lack of a criminal history supports his character. However, any
merit we find in his character is overshadowed by the nature of his offense. Accordingly,
we decline to find that his sentence was inappropriate in light of the nature of his offense
and his character.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court did not abuse its
discretion in identifying aggravating and mitigating factors; and (2) the trial court’s
sentence was proper in light of the nature of Krohn’s offense and his character.
Affirmed.
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BAILEY, J. and CRONE, J. concur
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