MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this May 27 2015, 9:01 am
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
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dominic Lowe, May 27, 2015
Appellant-Defendant, Court of Appeals Case No.
84A05-1412-CR-566
v. Appeal from the Vigo Superior
Court
State of Indiana, Lower Court Cause No.
84D03-1408-F3-2200
Appellee-Plaintiff.
The Honorable David R. Bolk,
Judge
Pyle, Judge.
Statement of the Case
[1] Dominic Lowe (“Lowe”) pled guilty to Level 5 felony battery against a public
safety officer and admitted that he was an habitual offender in exchange for the
Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 1 of 6
State’s dismissal of seven other charges. The trial court sentenced Lowe—who
was on probation in one case and out on bond in another case at the time of his
offenses and who had violated a no-contact order after his arrest in this case—to
an aggregate term of seven years executed in the Department of Correction,
which was within the eight-year executed cap contained in the plea agreement.
Lowe now appeals his sentence, alleging that his sentence is inappropriate
because the trial court ordered him to serve his executed time in the
Department of Correction instead of in a community corrections program or an
inpatient substance abuse program. Concluding that Lowe has failed to show
that his sentence is inappropriate, we affirm his sentence.
[2] Affirmed.
Issue
Whether Lowe’s executed sentence in the Department of
Correction was inappropriate.
Facts
[3] On September 24, 2014, the State ultimately charged Lowe with: Count I,
Level 3 felony attempted robbery resulting in bodily injury; Count II, Level 5
felony disarming a law enforcement officer; Count III, Level 5 felony battery
against a public safety officer; Count IV, Level 6 felony resisting law
enforcement; Count V, Level 6 felony resisting law enforcement; Count VI,
Class A misdemeanor invasion of privacy with an enhancement based on a
prior invasion of privacy conviction; Count VII, Class B misdemeanor false
Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 2 of 6
informing; and Count VIII, Class B misdemeanor disorderly conduct.1 The
State also filed an information alleging that Lowe was an habitual offender. At
the time of his offenses, Lowe was on probation in one case and out on bond in
another case.
[4] On October 2, 2014, Lowe pled guilty, pursuant to a written plea agreement, to
the Level 5 felony battery against a public safety officer. In addition, he
admitted that he was an habitual offender in exchange for the State’s dismissal
of the remaining charges. The plea agreement also provided that the State
would “recommend that the defendant be sentenced to the Indiana Department
of Correction for a term of imprisonment not to exceed eight (8) years, and the
parties shall argue all other terms of sentencing before the Court.” (App. 58).
Additionally, under the terms of the plea agreement, the State agreed that it
would dismiss all charges in a separate cause, terminate Lowe’s probation in
two other causes, not file charges against Lowe for invasion of privacy based on
his contact with the victim after his arrest in this cause, and not file charges
against him for false statements made under oath during a bond reduction
hearing in this cause.
[5] When sentencing Lowe, the trial court noted that he had a “significant,
significant criminal history[,]” including eight felony convictions and had
previously served time in prison on three occasions in North Carolina and
1
The State filed its original charging information on August 20, 2014, and the trial court granted the State’s
motion to file its amended charging information on September 24, 2014.
Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 3 of 6
Indiana. (Sent. Tr. 45). The trial court also noted that Lowe was out on bond
and on probation when he committed the offenses in this case, that he had “a
number of probation violations in the past filed against [him,]” and that he
violated the terms of his bond, which was no contact with the victim, after his
arrest in this case. (Sent. Tr. 46). The trial court also acknowledged that Lowe
had a “serious substance abuse . . . problem” and that his imprisonment would
result in a hardship to his dependents. The trial court imposed a four (4) year
executed sentence for the Level 5 felony and enhanced it by three (3) years for
Lowe’s habitual offender adjudication. Thus, the trial court imposed an
aggregate sentence of seven (7) years and ordered that it be served in the
Department of Correction. Lowe now appeals his sentence.
Decision
[6] Lowe contends that his aggregate seven-year executed sentence and his habitual
offender adjudication is inappropriate. We may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). The defendant has the burden of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). The principal role of a 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).
Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 4 of 6
[7] Lowe argues that his “lengthy prison term, as opposed to an alternative to
incarceration, was inappropriate in this case.” (Lowe’s Br. 5). He suggests that
the trial court should have considered other sentencing options, such as work
release, home detention, or an inpatient substance abuse program.
[8] In regard to a defendant’s challenge to placement, our Indiana Supreme Court
has explained that “[t]he place [where] a sentence is to be served is an
appropriate focus for application of our review and revise authority.” Biddinger
v. State, 868 N.E.2d 407, 414 (Ind. 2007). Nevertheless, “it will be quite
difficult for a defendant to prevail on a claim that the placement of his sentence
is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).
“This is because the question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate.” Id. at 268 (emphasis in original).
[9] Here, Lowe simply alleges that the trial court should have considered the
“plethora of sentencing options available other than prison[.]” (Lowe’s Br. 7).
He has not, however, shown that his placement in the Department of
Correction is inappropriate. Indeed, the plea agreement provided that there
would be a sentencing cap of eight years executed in the Department of
Correction. Moreover, Lowe, who was twenty-eight years old at the time of his
offenses, has an extensive criminal history, including multiple violations of
probation. Additionally, the record on appeal reveals that the nature of Lowe’s
offenses involved Lowe fleeing from police, grabbing an officer’s Taser gun,
and hitting him multiple times with it when the officer tried to arrest him.
Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 5 of 6
Further, Lowe was violating a protective order issued for the protection of his
estranged wife.
[10] Lowe has not persuaded us that his aggregate seven-year executed sentence is
inappropriate. Therefore, we affirm the trial court’s sentence.
[11] Affirmed.
Crone, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A05-1412-CR-566|May 27, 2015 Page 6 of 6