Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Sep 29 2014, 10:01 am
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:
MATTHEW J. McGOVERN GREGORY F. ZOELLER
Special Public Defender Attorney General of Indiana
Anderson, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES M. BARLOW, )
)
Appellant-Defendant, )
)
vs. ) No. 22A01-1402-CR-63
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Susan L. Orth, Judge
Cause No. 22D01-1210-FC-2495
September 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Pursuant to a plea agreement, Charles M. Barlow pleaded guilty to one count of
Class B felony causing death when operating a vehicle with an alcohol concentration
equivalent (“ACE”) of at least .15 or more1 and to three counts of Class C felony reckless
homicide,2 and Barlow admitted to habitual offender status.3 Thereafter, the trial court
sentenced Barlow to a total aggregate sentence of forty-four years, all to be executed.
Barlow appeals and asserts that his sentence is inappropriate in light of the nature of the
offense and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY
On the night of October 29, 2012, Barlow was driving on State Road 111 with three
passengers – his fiancée, Laura Weigand (“Weigand”), Michael Roby, and Tara Hirsekorn.
The four were on their way to a casino, and Barlow was intoxicated. While driving over
80 miles per hour, which was in excess of the speed limit, Barlow crossed the center line
and hit an oncoming vehicle, instantly killing that driver. Because of the crash, Barlow’s
vehicle was consumed with fire, and although he attempted to free his passengers, all three
of them died. Barlow admitted to an investigating officer that night that he had consumed
alcohol prior to the crash. At the time of testing, Barlow’s blood alcohol content was .18.
1
See Ind. Code § 9-30-5-5(b)(1). We note that, effective July 1, 2014, a new version was enacted
of each of the statutes under which Barlow was convicted. Because Barlow committed his offenses in
October 2012, we will apply the statutes in effect at that time.
2
See Ind. Code § 35-42-1-5.
3
See Ind. Code § 35-50-2-8.
2
The State charged Barlow the next day, but following some amendments and
renumbering of charges, the State ultimately charged Barlow with nine counts: Counts 1
through 4 charged Barlow with Class B felony causing death while operating a vehicle
with an ACE of .15 or more; Counts 5 through 8 charged him with Class C felony reckless
homicide; and Count 9 alleged that Barlow was an habitual offender.
In December 2013, the parties appeared for a change of plea hearing, at which the
trial court was presented with a plea agreement that Barlow had signed. Barlow pleaded
guilty to Count 1, relative to the death of the oncoming driver, and guilty to Counts 6, 7,
and 8, relative to the death of his three passengers. He also admitted to habitual offender
status. The plea agreement reflected a sentencing cap of thirty-four years for Counts 1, 6,
7, and 8, collectively, and a ten-year enhancement for Count 9, for a total possible sentence
of forty-four years. Appellant’s App. at 74-75. The State agreed to dismiss the remaining
charges. Following a hearing, the trial court took the matter under advisement.
At the subsequent sentencing hearing, Barlow testified and expressed remorse for
his decision that day to drink and drive. His mother testified as well, noting the frequent
physical caretaking assistance he provided to her. For the defense, victims’ family
members testified or had their written statements read into evidence. When imposing
sentence, the trial court identified as an aggravator Barlow’s criminal history, consisting of
at least four convictions in a ten-year period, including burglary, theft, and possession of
forged instruments, as well as a probation revocation. The trial court found it particularly
“significant” that in 2004 Barlow was sentenced for operating under the influence of
alcohol or drugs, which the trial court opined, “should’ve been a wake-up call” to Barlow.
3
Tr. at 94. The trial court observed that Barlow had the opportunity after that conviction to
address his alcohol problems, but he did essentially little to nothing in that regard, and the
trial court found that to be an aggravating circumstance. The trial court determined that
Barlow’s criminal history reflected an inability or unwillingness to conform his behavior
to the requirements of the law and a disdain for court authority.
The trial court identified as a mitigating factor that Barlow pleaded guilty, saving
the families “the heartache” of going through the stress of trial and hearing details of how
their loved ones died. Id. at 95. The trial court also identified as mitigating that Barlow’s
childhood and upbringing were “awful,” but that even faced with that adversity, Barlow
remained employed and obtained his GED. Id. at 94. Lastly, the trial court identified as a
mitigating factor that extended incarceration would result in hardship on his mother and
aunt, who both were in poor physical health.
The trial court determined that the aggravators outweighed the mitigators and
sentenced Barlow to ten years for Count 1, Class B causing death while operating a vehicle
with an ACE of .15 or more, and to eight years for each of the Counts 6 through 8, Class
C felony reckless homicide, ordering that Counts 6 through 8 be served consecutive to each
other and to Count 1. The trial court enhanced Count 1 by ten years based on Barlow’s
habitual offender status, for a total aggregate sentence of forty-four years, all executed.
Barlow now appeals.
DISCUSSION AND DECISION
Barlow pleaded guilty to one Class B felony and three Class C felonies, and he
admitted to being an habitual offender. The sentencing range for a Class B felony is
4
between six and twenty years, and the trial court sentenced him to the advisory ten years.
Ind. Code § 35-50-2-5. The sentencing range for a Class C felony is between two and eight
years, and the trial court sentenced Barlow to the maximum eight years on each of the three
Class C felony convictions. Ind. Code § 35-50-2-6. A defendant with habitual offender
status faces sentence enhancement of the underlying felony conviction with the highest
imposed sentence. Ind. Code § 35-50-2-8. Although Barlow faced more than forty-four
years of incarceration, the State agreed to cap his sentence at that and to dismiss three Class
B felonies and one Class C felony. Barlow agreed to this arrangement.
Barlow now contends that his forty-four-year sentence is inappropriate.4 Appellate
courts have the constitutional authority to revise a sentence if, after consideration of the
trial court’s decision, the court concludes the sentence is inappropriate in light of the nature
of the offense and character of the offender. Ind. Appellate Rule 7(B); Ricci v. State, 894
N.E.2d 1089, 1094 (Ind. Ct. App. 2008), trans. denied. 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
recognize the unique perspective a trial court brings to its sentencing decisions.” Stewart
4
We note that not every sentence that is the product of a plea agreement is subject to Rule 7(B)
review; only if the trial court is exercising discretion in imposing sentence may a defendant then contest on
appeal the merits of that discretion on the grounds that the sentence is inappropriate. Hole v. State, 851
N.E.2d 302, 304 (Ind. 2006). Here, where the plea agreement provided for a sentencing cap, the trial court
was required to exercise discretion in deciding whether to impose the maximum sentence allowed by the
cap, or something less. Therefore, Barlow did not waive his right to contest the merits of that discretion on
grounds that his sentence is inappropriate in light of the nature of the offense and the character of the
offender. Miles v. State, 889 N.E.2d 295, 296 (Ind. 2008) (defendant did not waive appellate sentence
review under invited error doctrine where defense agreed to sixty-five year cap and he was sentenced to
sixty-five years); Childress v. State, 848 N.E.2d 1073, 1078-79 (Ind. 2006) (defendant may challenge
appropriateness of sentence imposed under plea agreement that has sentencing cap or range).
5
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 some 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). A defendant bears the burden of
showing both prongs of the inquiry favor revision of his or her sentence. Anderson v. State,
989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (citing Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006)), trans. denied. In conducting our review, we do not look to see whether the
defendant’s sentence is appropriate or if another sentence might be more appropriate;
rather, the test is whether the sentence is inappropriate. Former v. State, 876 N.E.2d 340,
344 (Ind. Ct. App. 2007) (emphasis in original).
When a defendant requests appellate review and revision of his sentence, we have
the power to affirm, reduce, or increase the sentence. Akard v. State, 937 N.E.2d 811, 813
(Ind. 2010). Here, Barlow asks us to revise his sentence to impose fifteen years on Count
1 (instead of ten) and order that the eight-year sentences on Counts 6, 7, and 8 be served
concurrent to each other and concurrent to Count 1. Barlow does not challenge the ten-
year enhancement for being an habitual offender. Rather, he proposes that the fifteen-year
sentence on Count 1 be enhanced by ten years for habitual offender status, resulting in an
aggregate sentence of twenty-five years.
Barlow urges us to find that his character warrants a revision to his sentence. He
reminds us that “[t]he character of a defendant is found in what this Court learns of the
defendant’s life and conduct.” Appellant’s Br. at 7 (citing Croy v. State, 953 N.E.2d 660,
664 (Ind. Ct. App. 2011). When questioned about his childhood, Barlow shared that he
6
met his father for the first time when he was a young teenager. Shortly thereafter, Barlow
moved in with his father, who not only introduced Barlow to alcohol at age fourteen, but
also regularly abused him. Barlow described that his father “wash[ed] his hands of me”
and eventually abandoned Barlow into the foster care system. Tr. at 31. Barlow lived in
many different foster homes and attended more than a dozen schools. His use of alcohol
continued and escalated. Barlow believed that his mother was dead based on what his
father had told him, but she was not, and when he was thirty-one years old, Barlow
reconnected with her. Barlow testified that he had been dating Weigand for a number of
years, and he credited her with guiding him to be a better and more responsible person.
Barlow’s mother, who suffered from a variety of physical ailments, testified that Barlow
and Weigand cared for her on a regular basis. Those factors did not go unnoticed by the
trial court.
It recognized that Barlow endured an “awful” childhood and that, despite those
hardships, Barlow obtained his GED and remained consistently employed. Id. at 95. It
advised Barlow, however, that his terrible childhood was not an excuse and that he had
been given opportunities to address his alcoholism, but failed to do so. Barlow’s criminal
history included a 2004 conviction for driving a vehicle under the influence of alcohol or
drugs, which the trial court told Barlow “should’ve been a wake-up call” to him to seek
help. Id. at 94. By Barlow’s admission, he attended only a limited number of Alcoholics
Anonymous meetings and never obtained a sponsor. The court advised, “[E]ven with these
wake-up calls with arrests and convictions . . . you don’t seek treatment on your own.” Id.
at 94. The trial court reviewed his criminal history, consisting of four convictions and a
7
probation violation in a ten-year period and determined that it showed a disdain for court
authority.
Barlow urges that his sincere remorse should mediate the length of his sentence.
We acknowledge that at the sentencing hearing Barlow repeatedly expressed his sorrow to
the victims’ families for the pain he caused. He acknowledged that it was his poor decision
to drink and drive, and there was no excuse for it. The trial court’s remarks indicated that
it appreciated Barlow’s statements of remorse but noted that other aspects of Barlow’s
testimony tended to indicate an attempt to shift the blame or dilute the genuineness of the
remorse, for instances when Barlow stated that someone else in his car wanted to get to the
casino, perhaps implying he was hurrying for that reason. The trial court was also troubled
by Barlow’s statements that he only crossed the yellow line by few inches and that an
oncoming car did not have its lights on and, thereafter, Barlow swerved and overcorrected.
The trial court told Barlow that it was not an “accident” that caused four people to die, but
rather a choice that he made: “You chose to drink, uh, and drank a lot before getting behind
that wheel.” Id. at 99. Barlow has not persuaded us that his character warrants a revision
of his sentence of forty-four years, which fell within the parameters of the plea agreement.
With regard to the nature of the offense, Barlow recognizes that “this is a tragic
case” involving the loss of four lives “in a senseless accident.” Appellant’s Br. at 5, 10.
He maintains, however, that he expressed profound remorse and did not commit the
offenses with any malice or callousness. Therefore, he asserts, the nature of the offense
does not warrant the maximum sentence under the plea. We disagree. Barlow was aware
that for many years he struggled with alcohol abuse. Nevertheless, he got behind the wheel
8
after consuming quantities of alcohol sufficient for him to test after the crash at .18 BAC.
Not only did Barlow decide to drive, he also carried three passengers in the vehicle with
him. He drove at or above 80 miles per hour on State Road 111, late at night. He crossed
the yellow line and killed the oncoming driver. Then Barlow’s car was consumed with
fire, and his three passengers died. Nothing about the nature of the offense suggests that
the forty-four-year sentence, which was within the range of the plea agreement’s terms,
was inappropriate.
Affirmed.
BAKER, J., and ROBB, J., concur.
9