MEMORANDUM DECISION
Feb 26 2015, 9:11 am
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 ATTORNEYS FOR APPELLEE
Jill M. Acklin Gregory F. Zoeller
McGrath, LLC Attorney General of Indiana
Carmel, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandy L. Lawson, February 26, 2015
Appellant-Defendant, Court of Appeals Cause No.
29A05-1408-CR-366
v. Appeal from the Hamilton Superior
Court
Cause No. 29D04-1311-FD-9144
State of Indiana,
Appellee-Plaintiff. The Honorable J. Richard Campbell,
Judge
Barnes, Judge.
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Case Summary
[1] Brandy Lawson appeals her sentence for Class D felony resisting law
enforcement. We affirm.
Issue
[2] Lawson raises one issue, which we restate as whether her sentence is
inappropriate under Indiana Appellate Rule 7(B).
Facts
[3] On the evening of November 5, 2013, police officers with the Carmel Police
Department responding to a complaint of a suspicious vehicle attempted to stop
Lawson. Lawson failed to stop and sped away, disregarding stop signs,
speeding through residential areas, and ultimately driving over stop sticks.
When she finally stopped her vehicle, Lawson fled on foot, but she was soon
apprehended.
[4] The State charged her with Class D felony resisting law enforcement, Class A
misdemeanor resisting law enforcement, Class A misdemeanor driving while
suspended, and Class B misdemeanor reckless driving. Lawson pled guilty to
Class D felony resisting law enforcement, and the State dismissed the remaining
charges. At the sentencing hearing, Lawson blamed her activities on the night
at issue on a diabetic condition and requested alternate misdemeanor
sentencing. The trial court found no mitigators and found Lawson’s minimal
criminal history as a slight aggravator. The trial court sentenced Lawson to 730
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days in the Department of Correction with 365 days executed and 365 days
suspended to probation. Lawson now appeals.
Analysis
[5] Lawson argues that her sentence is inappropriate under Indiana Appellate Rule
7(B). She requests that we revise her sentence to no more than one year and
enter her conviction as a misdemeanor.
[6] Appellate Rule 7(B) provides that we may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offenses and the character
of the offender. When considering whether a sentence is inappropriate, we
need not be “extremely” deferential to a trial court’s sentencing decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must
give due consideration to that decision. Id. We also understand and recognize
the unique perspective a trial court brings to its sentencing decisions. Id. Under
this rule, the burden is on the defendant to persuade the appellate court that his
or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[7] The principal role of Rule 7(B) review “should be to 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). We “should focus on the forest—the aggregate sentence—rather than
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the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. When reviewing the appropriateness of
a sentence under Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[8] The nature of the offense is that Lawson fled in a high speed chase through
residential areas, running stop signs, and ultimately running over stop sticks.
She then fled on foot and was apprehended. Although Lawson claimed at the
sentencing hearing that her behavior was caused by a diabetic condition, the
trial court did not find that explanation credible or supported by the record.
The trial court stated:
You’ve explained to us today and in the pre sentence investigation
report this, with all due respect, story about your blood sugar. I’m not
convinced as to that excuse and for these reasons. In the probable
cause affidavit by Officer Thomas it was indicated that when you
[were] stopped by Lieutenant Keith you stated that you knew, you got
scared because you knew your license was suspended and you tried to
get away. Also, (inaudible) with the allegation that you had low blood
sugar was when you were finally stopped you fled the vehicle and ran
off on foot. You didn’t remain in the vehicle. You go through stop
sticks. And Ma’am, this is how people die. This was a fairly—It
wasn’t late in the evening, about 8:30. You posed a grave risk to
yourself, law enforcement and the community at large.
I’m not quite sure what is going on with you, Ma’am, but again I’m
not—Maybe there is an issue with diabetes but it is simply
unsubstantiated at this time and again is inconsistent with the
evidence. We have here also in the Carmel Police Report, which is
part of the pre sentence investigation report, when you were stopped.
The Carmel Police Department Paramedics, they reviewed you, they
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looked at you, they released you. . . . But you continued to do the
field sobriety tests and cooperate with the police officers. There was
some alcohol in your system, not a great deal. But I simply don’t
believe and looking at your driving record I don’t believe you have
taken any kind of responsibility for this action and the gravity of this
case. . . . You have not listened to me. You have not listened to
anyone and you’ve not taken any responsibility for your actions
whatsoever. You darn near could have killed someone. . . . I don’t
think saying sorry cuts it because I do not believe you madame. And I
do not believe your story.
Tr. pp. 30-31.
[9] A review of the character of the offender reveals that Lawson has a June 2013
conviction for Class A misdemeanor driving while suspended. She pled guilty
to that offense and received a 365-day suspended sentence. Lawson argues that
her criminal history is minimal, that she had been employed, and that she had
been attending nursing school.
[10] We recognize Lawson’s minimal criminal history. However, the trial court
found that Lawson’s explanation was not credible and that she had not
accepted responsibility for her actions. Further, we note that she had just
recently been sentenced for driving while suspended and was given leniency in
that case. Given the circumstances, we cannot say Lawson was entitled to
alternate misdemeanor sentencing or that the sentence imposed was
inappropriate.
Conclusion
[11] We cannot say that the sentence imposed by the trial court was inappropriate in
light of the nature of the offense and the character of the offender. We affirm.
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[12] Affirmed.
May, J., and Pyle, J., concur.
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Brandy L. Lawson v. State of Indiana (mem. dec.)
Combined Opinion