FILED
Mar 23 2016, 7:10 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael J. Kyle Gregory F. Zoeller
Kathie A. Perry Attorney General
Baldwin Kyle & Kamish
Franklin, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Morgan Mannix, March 23, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1505-CR-294
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber
Appellee-Plaintiff Trial Court Cause No.
49G01-1211-FC-79738
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 1 of 23
Case Summary
[1] Morgan Mannix struck and killed Alex Trabbert, who was walking along the
road, when she was driving home around 2:30 a.m. Mannix stopped her car
and briefly looked around but then left when she did not see anything. Mannix
later consented to a blood draw, which occurred approximately seven and a
half hours after the accident. The results showed that Mannix’s blood-alcohol
concentration was 0.10.
[2] After a jury trial, Mannix was convicted of Class C felony failure to stop after
an accident resulting in death and Class C felony operating while intoxicated
causing death. Despite noting that he had never seen more compelling
mitigators than in this case, the trial judge sentenced Mannix to an above-
advisory term of six years for each conviction, to be served concurrently. The
judge suspended two years and ordered one year of probation.
[3] Reading together Indiana Code sections 9-30-6-15 and 9-30-7-3, we conclude
that the fact that a chemical test was administered more than three hours after
an accident does not render it inadmissible; rather, it deprives the State of the
rebuttable presumption that the driver’s blood-alcohol concentration at the time
of the test was the same at the time of the accident. In addition, we agree that
the trial court erred in sentencing Mannix to an above-advisory term for each
conviction. This is because the judge appeared to rely on the elements of one
offense to support an above-advisory sentence for the other offense, and vice
versa, but did not identify anything unique about the circumstances that would
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 2 of 23
justify deviating from the advisory sentence, especially in light of the numerous
mitigators in this case. We therefore use our review-and-revise authority to
sentence Mannix to the advisory term of four years with one year suspended for
each conviction, to be served concurrently, and one year of probation.
Facts and Procedural History
[4] In November 2012, twenty-three-year-old Morgan Mannix went home for
Thanksgiving. She stayed with her parents, who lived on the northeast side of
Indianapolis.
[5] The day after Thanksgiving, Mannix drove to a friend’s house at 96th Street
and Allisonville Road. According to Mannix, she drank “probably” six Bud
Light beers between 11 p.m. and 1 a.m. Ex. 14. She stopped drinking around
1:00 a.m. and then left her friend’s house around 2:30 a.m. to drive back home.
[6] Mannix took Shadeland Avenue to get home. She was driving south on
Shadeland between 71st and 75th Streets when her passenger-side tires left the
road and drove on the adjacent grass for over 100 feet.1 Mannix struck and
killed twenty-three-year-old Alex Trabbert with her car. Alex had just left
Fairbanks, an addictions treatment center near Community Hospital North at
82nd Street and Shadeland, and was walking along Shadeland carrying a pillow
1
At trial, an officer explained that there was no emergency lane or gravel area between the road and the
grass. In other words, the road “basically goes from white line to grass.” Tr. p. 237-38.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 3 of 23
and trash bag full of his belongings. Mannix did not know what she hit and
stopped her car. She looked around for about 10-15 seconds but then left when
she did not see anything. Mannix drove the rest of the way home and went
straight to bed. She did not call 911.
[7] Around 5:30 a.m. Saturday morning, a passerby was driving south on
Shadeland and spotted Alex’s body by the side of the road. The passerby called
911, and police officers arrived on the scene shortly thereafter. Alex had
massive head trauma and bleeding. His cause of death was later determined to
be multiple blunt force trauma to the head. Tr. p. 383.
[8] When Mannix woke up Saturday morning around 8:30 a.m., she told her
father, Charles Mannix, that she “was driving home last night and something
hit [her] car.” Id. at 265. Charles surveyed the damage to his daughter’s car,
which included a shattered windshield on the passenger side and a dented
hood. Charles then drove approximately two miles to the location Mannix
described, where he encountered Indianapolis Metropolitan Police Department
Detective Eric Snow—a member of Marion County’s Fatal Alcohol Crash
Team—sweeping debris. Charles asked Detective Snow if there had been an
accident, and Detective Snow said that a pedestrian had been struck and killed.
Charles responded, “I think my daughter may have been involved.” Id. at 271.
Detective Snow asked if he could come to their house to see Mannix’s car, and
Charles agreed.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 4 of 23
[9] Detective Snow and Lawrence Police Department Officer Michael McKenna—
also a member of the Fatal Alcohol Crash Team—went to the Mannix home.
Detective Snow arrived first; he examined Mannix’s car and then went inside to
speak with Mannix and her parents. When Officer McKenna arrived, he used a
card to read Mannix Indiana’s implied-consent law for crashes involving
fatalities. Id. at 295-96. Officer McKenna specifically told Mannix that she had
the right to refuse the chemical test as well as the penalties for refusing. Id. at
295. Mannix consented to a blood draw, and Officer McKenna drove her to
Eskenazi Hospital.2 During their interactions with Mannix, both officers
smelled alcohol on her breath and person. Id. at 300, 467.
[10] At the hospital, Mannix told the registered nurse that she consented to the
blood draw and then signed the hospital’s toxicology-sample log, which
indicated that her blood draw was by “consent.” Id. at 340-41; Ex. 17.
Mannix’s blood was drawn at 9:52 a.m., approximately seven and a half hours
after the accident. Tr. p. 543; Ex. 17. Testing showed that Mannix’s blood-
alcohol concentration was 0.10. Ex. 23. Using retrograde extrapolation,
Mannix’s blood-alcohol concentration was estimated to be between 0.17 and
0.28 at the time of the accident. Testing also showed the presence of marijuana.
[11] After the blood draw, Mannix agreed to give a statement. She was transported
to the police station, where she waived her Miranda rights and gave her version
2
It was called Wishard Hospital at the time.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 5 of 23
of the events. She explained that after she struck Alex with her car, she
“freaked out” and “panicked” because she thought she might have hit a person.
Ex. 14. She stopped her car and briefly looked around but then left “too soon.”
Id. She acknowledged that she “shouldn’t have left” and that she should have
called 911. She told the police that she wanted to do “absolutely whatever” she
could to “take responsibility.” Id. She broke down when the officers told her
that Alex was her age.
[12] Three days after the accident, the State charged Mannix with one count: Class
C felony failure to stop after an accident resulting in death. The State later
added Class B felony operating a vehicle with a controlled substance or its
metabolite in the body causing death. Then, on July 17, 2014—which was a
few days before trial was set to begin and when plea negotiations had stalled—
the State moved to amend the charging information to include three additional
counts, all involving alcohol: Class B felony operating a vehicle with a blood-
alcohol concentration greater than 0.15 causing death, Class C felony operating
a vehicle with a blood-alcohol concentration greater than 0.08 causing death,
and Class C felony operating a vehicle while intoxicated causing death. The
trial court took the trial off the calendar and charged the delay to the State. On
November 24, 2014, the trial court issued an order allowing the State to add the
Class C felony OWI-causing-death charge—but not the BAC charges3—and
3
The trial court reasoned that the extrapolation evidence could not reliably establish a specific BAC at
the time of the accident. However, the court noted that the OWI-causing-death charge was different,
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 6 of 23
rescheduled the trial. See Appellant’s App. p. 195-98 (trial court’s order); 12-13
(final charging information listing three charges).
[13] Mannix’s jury trial began April 6, 2015. The jury found Mannix guilty of Class
C felony failure to stop after an accident resulting in death and Class C felony
operating a vehicle while intoxicated causing death but not guilty of Class B
felony operating a vehicle with a controlled substance in the body causing
death.
[14] Mannix faced a sentence of “between two (2) and eight (8) years, with the
advisory sentence being four (4) years” for each Class C felony conviction. Ind.
Code § 35-50-2-6(a). In addition, both of Mannix’s sentences were fully
suspendable at that time. See Ind. Code Ann. § 35-50-2-2 (West 2012); Tr. p.
743, 752 (prosecutor and defense counsel pointing out to the trial court that
Mannix’s sentences were suspendable). At the sentencing hearing, Mannix,
who was twenty-six years old, submitted several letters, called five witnesses,
and testified on her own behalf. Defense counsel argued that Mannix had no
criminal history, had excelled in her career, and had a rare family structure and
unit. He also highlighted that Mannix “surrendered to the authorities and was
cooperative with them,” had engaged in counseling and drug and alcohol
treatment while on bond awaiting trial, and was clearly remorseful. Id. at 752.
because it required “a showing of intoxication rather than the precision required of BAC calculations.”
Appellant’s App. p. 198.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 7 of 23
Defense counsel, who claimed that there were no aggravators, did not ask for a
fully suspended sentence for Mannix. Instead, he asked that Mannix not be
sent to the Indiana Department of Correction but rather serve any time through
Marion County Community Corrections.
[15] In pronouncing sentence, the trial judge noted that this case involved “a series
of poor decision making that resulted in a tragedy.” Id. at 757. The judge
explained that his “philosophy” for these cases is that the “presumption” is that
the defendant goes to prison when someone dies. Id. The judge acknowledged
that Mannix was “a good person” and “a highly respected individual in our
community” and in her profession. Id. at 754, 757. In fact, the judge said that
“in [his] career,” he had never seen more “compelling” mitigators than in this
case. Id. at 757. Nevertheless, the judge sentenced Mannix to an above-
advisory term of six years for each conviction, to be served concurrently. The
judge suspended two years and ordered the final year of the executed portion of
the sentence to be served on home detention. See id. at 758 (“Three years at the
Department of Correction[] followed by one year of Community
Corrections.”). The judge also ordered Mannix to serve one year of probation.
[16] Mannix now appeals.
Discussion and Decision
[17] Mannix raises three issues on appeal. First, she contends that the trial court
erred in admitting evidence of her blood draw because her consent was not
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 8 of 23
voluntary. Second, she contends that the trial court erred in allowing the State
to amend the charging information to add Class C felony OWI causing death
because it was a substantive amendment that prejudiced her substantial rights.
Last, she contends that the trial court erred by relying on the elements of the
offenses to sentence her to an above-advisory term for each conviction.
I. Consent for Blood Draw
[18] Mannix contends that the trial court erroneously admitted evidence of her
blood draw in violation of the Fourth Amendment to the United States
Constitution. Generally, a search warrant is a prerequisite to a constitutionally
proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind. 2005).
In cases involving a warrantless search, the State bears the burden of proving an
exception to the warrant requirement. Id. One of the well-recognized
exceptions to the warrant requirement is a voluntary and knowing consent to
search. Temperly v. State, 933 N.E.2d 558, 563 (Ind. Ct. App. 2010), trans.
denied. The voluntariness of a consent to search is a question of fact to be
determined from the totality of the circumstances. Id. A consent to search is
valid except where it is procured by fraud, duress, fear, or intimidation, or
where it is merely a submission to the supremacy of the law. Id.
[19] At trial, the State relied on Indiana’s implied-consent law as authority for the
warrantless search of Mannix’s blood. Our implied-consent law provides that a
“person who operates a vehicle impliedly consents to submit” to the test
provisions “as a condition of operating a vehicle in Indiana.” Ind. Code §§ 9-
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 9 of 23
30-6-1, 9-30-7-2. The policy behind this law is to keep roadways safe by
removing the threat posed by the presence of drunk drivers. State v. Bisard, 973
N.E.2d 1229, 1232 (Ind. Ct. App. 2012), trans. denied.
[20] Indiana’s implied-consent law appears at Indiana Code chapters 9-30-6 and 9-
30-7. Indiana Code chapter 9-30-7 applies here because there was a fatality.
Under this chapter, if a police officer “has reason to believe” that a person
operated “a vehicle that was involved in a fatal accident or an accident
involving serious bodily injury,” the officer “shall offer a portable breath test or
chemical test” to that person. Ind. Code § 9-30-7-3(a) (emphasis added). Unlike
Chapter 9-30-6,4 the officer is not required to have probable cause that the driver
was intoxicated. Temperly, 933 N.E.2d at 562; Brown v. State, 744 N.E.2d 989,
993 (Ind. Ct. App. 2001). Refusal to submit to a portable breath test or
chemical test is an infraction and results in the suspension of driving privileges.
Ind. Code § 9-30-7-5.
[21] Mannix, who concedes that the officers had reason to believe that she was
involved in the fatality, see Appellant’s Br. p. 10, first argues that her consent
was not voluntary because the officers did not offer her a portable breath test
first. In support of this argument, Mannix relies on the following emphasized
language in Indiana Code section 9-30-7-3(a):
4
Chapter 9-30-6 requires a police officer to have probable cause that a person was intoxicated before offering
a chemical test.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 10 of 23
(a) A law enforcement officer shall offer a portable breath test or
chemical test to any person who the officer has reason to believe
operated a vehicle that was involved in a fatal accident or an
accident involving serious bodily injury. If:
(1) the results of a portable breath test indicate the presence of
alcohol;
(2) the results of a portable breath test do not indicate the presence
of alcohol but the law enforcement officer has probable cause to
believe the person is under the influence of a controlled substance
or another drug; or
(3) the person refuses to submit to a portable breath test;
the law enforcement officer shall offer a chemical test to the person.
Ind. Code § 9-30-7-3(a) (emphasis added). Mannix claims that the emphasized
language requires an officer to offer a portable breath test before offering a
chemical test. However, the first sentence of subsection (a) states that an officer
“shall offer a portable breath test or chemical test.” Id. (emphasis added).
Therefore, according to the plain language of the statute, when there is an
accident resulting in serious bodily injury or death, the officer can choose what
test to offer the driver first: (1) a portable breath test, the results of which are
generally inadmissible at trial, State v. Whitney, 889 N.E.2d 823, 828 (Ind. Ct.
App. 2008), or (2) a chemical test, the results of which are admissible at trial if
certain requirements are met, see Bisard, 973 N.E.2d at 1233. The language that
follows the first sentence simply sets forth additional conditions that apply if the
officer chooses to offer the driver a portable breath test first. But because
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 11 of 23
Officer McKenna offered Mannix a chemical test first, these conditions do not
apply here. We therefore do not address Mannix’s arguments that the officers
did not satisfy these conditions.
[22] Mannix next argues that her consent was not voluntary because the implied-
consent law requires chemical tests to be administered within three hours of the
accident, but her test was administered approximately seven and a half hours
after the accident. The statute provides:
(b) A law enforcement officer may offer a person more than one
(1) portable breath test or chemical test under this section.
However, all chemical tests must be administered within three (3) hours
after the fatal accident or the accident involving serious bodily injury.
I.C. § 9-30-7-3(b) (emphasis added). There are no provisions in Chapter 9-30-7
that address what happens if the chemical test is not administered within three
hours of the accident.
[23] We, however, have held that some provisions in Chapters 9-30-6 and 9-30-7
should be read together. See Temperly, 933 N.E.2d at 565. For example, we
have specifically applied Indiana Code section 9-30-6-15, which addresses what
happens if the chemical test is not administered within three hours, to Chapter
9-30-7. See id. Section 9-30-6-15 provides:
(b) If, in a prosecution for an offense under IC 9-30-5, evidence
establishes that:
(1) a chemical test was performed on a test sample taken
from the person charged with the offense within the period
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 12 of 23
of time allowed for testing under section 2 of this
chapter;[5] and
(2) the person charged with the offense had an alcohol
concentration equivalent to at least eight-hundredths (0.08)
gram of alcohol per:
(A) one hundred (100) milliliters of the person’s
blood at the time the test sample was taken; or
(B) two hundred ten (210) liters of the person’s
breath;
the trier of fact shall presume that the person charged with the offense had
an alcohol concentration equivalent to at least eight-hundredths (0.08)
gram of alcohol per one hundred (100) milliliters of the person’s blood or
per two hundred ten (210) liters of the person’s breath at the time the
person operated the vehicle. However, this presumption is rebuttable.
Ind. Code § 9-30-6-15(b) (emphasis added). This statute allows a jury to relate
the driver’s blood-alcohol concentration at the time of the chemical test back to
the time of the accident. Disbro v. State, 791 N.E.2d 774, 778 (Ind. Ct. App.
2003), trans. denied; Allman v. State, 728 N.E.2d 230, 232 (Ind. Ct. App. 2000).
If the State fails to prove that the chemical test occurred within three hours, it is
not allowed to rely on the presumption. Allman, 728 N.E.2d at 232.
5
According to Indiana Code section 9-30-6-2(c), “A test administered under this chapter must be
administered within three (3) hours after the law enforcement officer had probable cause to believe the person
committed an offense under IC 9-30-5 or a violation under IC 9-30-15.”
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 13 of 23
[24] Mannix was charged with operating while intoxicated causing death under
Indiana Code chapter 9-30-5. See Appellant’s App. p. 12. Accordingly, Indiana
Code section 9-30-6-15 applies. But because Mannix’s blood was drawn more
than three hours after the accident, the State was deprived of the rebuttable
presumption in Section 9-30-6-15(b) and therefore must have provided
extrapolation evidence relating Mannix’s blood-alcohol concentration at the
time of the test back to the time of the accident. Allman, 728 N.E.2d at 234;
State v. Stamm, 616 N.E.2d 377, 380 (Ind. Ct. App. 1993). At trial, the State
presented evidence that Mannix’s blood-alcohol concentration was between
0.17 and 0.28 at the time of the accident. Accordingly, the fact that Mannix’s
blood was drawn more than three hours after the accident “is relevant only to
the rebuttable presumption, not the admissibility of the chemical test.” See
Stamm, 616 N.E.2d at 380.
[25] The evidence shows that Mannix consented to a blood draw after Officer
McKenna read her Indiana’s implied-consent law, including that she had the
right to refuse the chemical test as well as the penalties for refusing.6 Mannix
also told the registered nurse who drew her blood that she consented to the
blood draw and then signed the hospital’s log indicating that it was a
6
Mannix filed a motion to suppress in which she claimed that Detective Snow essentially said that she was
required to have her blood drawn. The trial court ruled that any error in Detective Snow’s advisement was
later cured when Officer McKenna properly advised Mannix of her rights under the implied-consent law. See
Tr. p. 188-89, 195. Although Mannix appears to revive this argument on appeal, see Appellant’s Br. p. 11,
she provides no analysis and therefore has waived it.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 14 of 23
consensual blood draw. Because Mannix voluntarily consented to the blood
draw, the trial court did not err in admitting evidence of the blood draw.
II. Amendment of Charging Information
[26] Mannix next contends that the trial court erred in allowing the State to amend
the charging information to add Class C felony OWI causing death because it
was a substantive amendment that prejudiced her substantial rights. The State
concedes that the amendment was substantive but argues that the amendment
did not prejudice Mannix’s substantial rights. Appellee’s Br. p. 33-34.
[27] Indiana Code section 35-34-1-5 governs amendments to charging informations.
Subsection (b) provides, in pertinent part, that “[t]he indictment or information
may be amended in matters of substance . . . at any time . . . before the
commencement of trial . . . if the amendment does not prejudice the substantial
rights of the defendant.” Ind. Code § 35-34-1-5(b). A defendant’s substantial
rights “include a right to sufficient notice and an opportunity to be heard
regarding the charge.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014)
(quotation omitted), reh’g denied. “Ultimately, the question is whether the
defendant had a reasonable opportunity to prepare for and defend against the
charges.” Id. at 405-06 (quotation omitted).
[28] We agree with the State that Mannix’s substantial rights were not prejudiced
because she had more than sufficient time to prepare for and defend against the
new charge. The State filed the motion to amend the charging information on
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 15 of 23
July 17, 2014, which the trial granted on November 24, 2014, and the jury trial
began April 6, 2015. Mannix therefore had almost eight months from when the
State filed the motion to amend—or almost five months from when the trial
court granted the amendment—to prepare for and defend against the new
charge. Because Mannix had a significant amount of time to prepare a defense,
she cannot show that she was prejudiced by the added charge. See Gomez v.
State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (“Here, the time period
between the amendment of the charging information and the jury trial was
approximately ten months and gave Gomez the opportunity to prepare for the
murder charge. Gomez cannot show that he was prejudiced by the added
charge as he had ample notice of the new charge and a significant amount of
time to prepare a defense for the trial.”), trans. denied. Accordingly, the trial
court did not err when it granted the State’s motion to amend the charging
information to include Class C felony OWI causing death.
III. Sentencing
[29] Mannix makes several challenges to her sentence, including that the trial court
erred by relying on the elements of the offenses to sentence her to an above-
advisory term for each conviction. See Appellant’s Br. p. 14-15.
[30] The advisory sentence is the starting point our legislature has selected as an
appropriate sentence for the crime committed. Gomillia v. State, 13 N.E.3d 846,
852 (Ind. 2014). Nevertheless, a trial judge may impose any sentence within
the statutory range without regard to the existence of aggravating or mitigating
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 16 of 23
factors. Id. However, if the trial court finds the existence of aggravating or
mitigating circumstances, then the court is required to give “a statement of the
court’s reasons for selecting the sentence that it imposes.” Id. (quoting Ind.
Code § 35-38-1-3); see also Windhorst v. State, 868 N.E.2d 504, 506 (Ind. 2007)
(“Indiana trial courts are required to enter sentencing statements whenever
imposing sentence for a felony offense.”), reh’g denied. The statement
must include a reasonably detailed recitation of the trial court’s
reasons for imposing a particular sentence. If the recitation
includes a finding of aggravating or mitigating circumstances,
then the statement must identify all significant mitigating and
aggravating circumstances and explain why each circumstance
has been determined to be mitigating or aggravating.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007).
[31] In addition, “[w]here a trial court’s reason for imposing a sentence greater than
the advisory sentence includes material elements of the offense, absent
something unique about the circumstances that would justify deviating from the
advisory sentence, that reason is improper as a matter of law.” Gomillia, 13
N.E.3d at 852-53.
[32] Here, the trial judge said that “in [his] career,” he had never seen more
“compelling” mitigators than in this case. Tr. p. 757. The judge then appeared
to justify imposing an above-advisory sentence for each conviction by relying
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 17 of 23
on “both counts and the elements” as aggravators.7 Id. at 757-58. We find this
problematic for two reasons. First, the sentencing statement did not include a
reasonably detailed explanation of why both counts and the elements of the
offenses were aggravating. Second, the judge essentially relied on the elements
of one offense to support an above-advisory sentence for the other offense, and
vice versa. In other words, the judge relied on (1) the fleeing element from
Mannix’s conviction for failure to stop after an accident resulting in death to
support an above-advisory sentence for OWI causing death and (2) the
intoxication element from Mannix’s conviction for OWI causing death to
support an above-advisory sentence for failure to stop after an accident resulting
in death. Because the judge relied on the elements, he was required to identify
something unique about the circumstances that would justify deviating from the
advisory sentence. The judge’s failure to do this was improper as a matter of
law.
7
Although the judge did not explain this point further, he did say that he agreed with the prosecutor’s
analysis that the two counts allowed for an “aggravated sentence.” Tr. p. 757-58. The prosecutor had argued
earlier that “the operating while intoxicated causing death followed by leaving the scene” were aggravators
that supported an “enhanced aggravated sentence.” Id. at 743.
In the alternative, the prosecutor argued that the trial court could impose an advisory sentence for each
conviction and then run the sentences consecutively. Id. at 743-44. But the prosecutor concluded that he did
not think consecutive sentences were allowed because the elements (which were used as an aggravator) were
“both absorbed in the crimes themselves.” Id. Notably, a trial court must find at least one aggravating factor
before imposing consecutive sentences. See Harris v. State, 964 N.E.2d 920, 926 (Ind. Ct. App. 2012), trans.
denied. However, neither the State nor the trial court explained why it believed that the elements of the
offenses could be relied on as an aggravator to justify above-advisory sentences but not used as an aggravator
to justify consecutive sentences. The State does not continue to make this argument on appeal.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 18 of 23
[33] Where the trial court has erred in sentencing a defendant, there are several
options for the appellate court. Windhorst, 868 N.E.2d at 507. “Without a trial
court sentencing order that meets the requirements of the law,” we have the
option to remand to the trial court for a clarification or new sentencing
determination. Id. Additionally, we may exercise our authority to review and
revise the sentence. Id.
[34] We choose to exercise our authority to review and revise Mannix’s sentence.
Accordingly, we revise Mannix’s sentence to the advisory term of four years
with one year suspended for each conviction, to be served concurrently, and
one year of probation.
[35] Affirmed in part and reversed in part.
Bailey, J., concurs.
Crone, J., concurs in part and dissents in part.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 19 of 23
IN THE
COURT OF APPEALS OF INDIANA
Morgan Mannix, March 23, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1505-CR-294
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1211-FC-79738
Crone, Judge, concurring in part and dissenting in part.
[36] I fully concur as to issues I and II. As to issue III, I respectfully dissent.
[37] Here, as the majority notes, the trial court
essentially relied on the elements of one offense to support an
above-advisory sentence for the other offense, and vice versa. In
other words, the judge relied on (1) the fleeing element from
Mannix’s conviction for failure to stop after an accident resulting
in death to support an above-advisory sentence for OWI causing
death and (2) the intoxication element from Mannix’s conviction
for OWI causing death to support an above-advisory sentence for
failure to stop after an accident resulting in death.
Slip op. at 18. Gomillia does not prohibit this, nor does it require that a trial
court find “something unique about the circumstances that would justify
deviating from the advisory sentence” for an offense based on an element of
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 20 of 23
another offense. 13 N.E.2d at 852-53.8 But even if the trial court had been
required to do so in this case, I believe that the distinguishing elements of the
offenses (fleeing, intoxication) are self-evident and therefore sufficient to
support the trial court’s sentence.
[38] On a more basic level, it is beyond dispute that committing multiple offenses is
worse than committing one offense. Just as a person who harms multiple
victims may deserve more punishment than a person who harms one victim,9 a
person who commits multiple offenses may deserve more punishment than a
person who commits only one offense. I fail to see how the commission of two
offenses cannot be considered an aggravating circumstance compared to the
commission of one offense.
[39] Mannix asks us to reduce her sentence pursuant to Indiana Appellate Rule 7(B),
which 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 offense and the character of the
offender. “The purpose of our review is not to reach what we perceive to be a
‘correct’ sentence but merely to ‘leaven the outliers.’” Gibson v. State, 43 N.E.3d
8
The Gomillia court’s rationale for requiring a trial court to find “something unique about the circumstances
that would justify deviating from the advisory sentence” for an offense based on an element of that offense is
that “the Legislature has determined the appropriate advisory sentence based upon the elements of the
offense.” 13 N.E.3d at 852-53. That rationale does not (and in my view should not) apply to the
enhancement of a sentence based on an element of a separate offense.
9
See Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003) (“[W]hen the perpetrator commits the same offense
against two victims, enhanced and consecutive sentences seem necessary to vindicate the fact that there were
separate harms and separate acts against more than one person.”).
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 21 of 23
231, 241 (Ind. 2015) (quoting Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)).
“Because sentencing is a highly case-sensitive endeavor, we recognize it is
generally a decision best made at the trial court level.” Id. “[A]ppellate review
should 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.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
[40] “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.” Weedman v. State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans.
denied (2015). Here, the trial court suspended two years of Mannix’s concurrent
six-year terms and allowed her to spend one of the four remaining years on
home detention rather than in the Department of Correction. “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. It is the
defendant’s burden on appeal to persuade us that the sentence imposed by the
trial court is inappropriate.” Hunt v. State, 43 N.E.3d 588, 590 (Ind. Ct. App.
2015) (citation omitted), trans. denied.
[41] Mannix’s “nature of the offense” argument is based solely on the trial court’s
reliance on the elements of one offense to support an enhanced sentence for the
other offense. This is more properly characterized as a claim that the trial court
abused its discretion in considering aggravating factors, which requires a
separate analysis. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). I
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 22 of 23
would find no abuse of discretion for the reasons given above, and I would also
find that Mannix has waived her inappropriateness argument as to the nature of
her offenses.
[42] Waiver notwithstanding, I find such argument unpersuasive. Mannix drank at
least six beers and got behind the wheel of her car in the middle of the night.
She drove off the road for over 100 feet and struck Alex Trabert with enough
force to knock him out of his shoes and into her windshield, which shattered.
She made only a cursory effort to find whatever she hit, did not attempt to
summon help, drove home, and went to bed. Later that morning, Trabert’s
dead body was found on the side of the road, and Mannix’s blood tested
positive for both alcohol and marijuana. The nature of Mannix’s offenses
supports a sentence above the advisory term and reflects unfavorably on her
character. Although she has no criminal history and has achieved some
educational and vocational success, she exhibited extremely poor judgment that
resulted in the death of an innocent young man. She has used alcohol and
marijuana since she was a teenager, and she continued to consume alcohol until
the week of trial. Appellant’s App. at 237 (presentence investigation report).
Mannix has failed to persuade me that the trial court’s sentence is
inappropriate, and therefore I would affirm it.
Court of Appeals of Indiana | Opinion 49A04-1505-CR-294 | March 23, 2016 Page 23 of 23