MEMORANDUM DECISION FILED
Mar 31 2016, 7:52 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Victoria L. Bailey Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey Winfrey, March 31, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1506-CR-656
v. Appeal from the Marion County
Superior Court
State of Indiana, The Honorable Barbara Crawford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49F09-1403-FD-13455
May, Judge.
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[1] Jeffrey Winfrey agreed to plead guilty to Class D felony resisting law
1
enforcement, Class D felony operating a vehicle while intoxicated with
2 3
previous conviction, and a habitual substance offender enhancement. He
asserts the court abused its discretion at sentencing when it found he lacked
remorse and then used the lack of remorse as an aggravating factor. We affirm.
Facts and Procedural History
[2] On March 14, 2014, at approximately 11:30 p.m., Officer Gregory Shue, of the
Indianapolis Metropolitan Police Department, was on routine patrol when he
saw a white Saturn Vue driving at a high rate of speed without headlights or
taillights illuminated. Winfrey was driving the Saturn. He drove around a car
that was stopped at a stop sign and he proceeded through the intersection
without stopping. Officer Shue activated his emergency lights and began to
pursue the Saturn.
[3] The Saturn eventually stopped and the officer approached it. As the officer
reached the front wheel of his patrol car, the Saturn rolled and then stopped
again. The officer ordered Winfrey to turn off the ignition and Winfrey
complied. When Officer Shue continued toward the Saturn, Winfrey started
1
Ind. Code § 35-44.1-3-1(a)(3)(b)(1)(A) (2013).
2
Ind. Code § 9-30-5-3(a)(1) (2008).
3
Ind. Code § 35-50-2-10(b) (2006).
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the car and drove away. Officer Shue notified dispatch of the situation and
dispatch told Officer Shue the license plate on the Saturn was stolen.
[4] Police officers pursued Winfrey. At some point, Winfrey rear-ended another
vehicle but did not stop. The chase continued and approached speeds of 80 to
90 miles per hour. One of the officers attempted a precision immobilization
4
technique (a “PIT”) in order to stop Winfrey’s vehicle, but Winfrey was able to
maneuver out of the PIT. A second PIT maneuver was successful.
[5] Winfrey’s vehicle spun and stopped at the curb. Winfrey then put his car in
reverse and accelerated backward until he hit a guide wire on a utility pole. His
car continued up the guide wire, causing the top of the pole to break and
electrical wires to fall to the ground. The downed electrical wires started a fire
that caused a power outage.
[6] After the collision with the guide wire, Winfrey drove from the scene. Police
officers pursued him. The pursuit ended when Winfrey turned into an alley and
into a yard, where his vehicle became stuck in the grass and dirt.
[7] Officers ordered Winfrey to exit his vehicle, but he did not. Instead, with
officers watching, he threw a small plastic baggie out of the passenger-side
window. One of the officers again ordered Winfrey to exit the car. Winfrey
refused. The officer grabbed Winfrey by the arms in an attempt to remove him
4
The PIT maneuver, or precision immobilization technique, is a pursuit tactic used by a pursuing car to force
a fleeing car to abruptly turn sideways, causing the driver to lose control and stop.
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from the car, but Winfrey resisted. The officer then used a stun gun on
Winfrey. Winfrey attempted to pull the stun gun probes from his body. It took
several officers to eventually remove Winfrey from the car. Once Winfrey was
out of the car, officers placed him on the ground and handcuffed him.
[8] One of the officers who handcuffed Winfrey smelled the odor of an alcoholic
beverage coming from his breath. Winfrey had glassy, bloodshot eyes and
slurred speech. A preliminary breath test was administered and Winfrey tested
positive for alcohol at a level of 0.162. The officer read Winfrey his implied
consent rights and Winfrey agreed to submit to a blood test at the hospital.
[9] While waiting for a vehicle to transport Winfrey to the hospital for the blood
test, an officer noticed the baggie Winfrey threw from his car contained a green
leafy substance. Inside Winfrey’s car, officers found a small plastic baggie that
contained a large quantity of small green pills and a third small plastic baggie
that also contained a green leafy substance. The contents of the baggies were
analyzed; the green leafy substance was marijuana and the green pills were
Diazepam, a controlled substance.
[10] The State charged Winfrey with fourteen offenses and Winfrey pled guilty to
resisting law enforcement, operating a vehicle while intoxicated with previous
conviction, and the habitual substance offender enhancement. The State
dismissed the remaining counts.
[11] The plea agreement left sentencing open to the trial court. At the sentencing
hearing, the trial court found aggravating and mitigating circumstances but
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found the aggravating circumstances outweighed the mitigating circumstances.
Winfrey was sentenced to a total of eight years with four years to be served in
the Indiana Department of Correction, two years under work release, and two
years on probation.
Discussion and Decision
[12] Winfrey argues the trial court abused its discretion at his sentencing hearing
because, according to Winfrey, it found his failure to present evidence of
remorse to be an aggravating factor. Winfrey asks us to remand his case to the
trial court for a new sentencing hearing, with a directive to the trial court to not
consider as an aggravating factor his failure to present evidence of remorse.
[13] Sentencing decisions rest within the sound discretion of the trial court and will
be disturbed only on a showing of abuse of discretion. Anderson v. State, 989
N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion
occurs when the decision is clearly against the logic and effect of the evidence
before the court or the reasonable inferences to be drawn therefrom. Id. A trial
court abuses its discretion if it: (1) fails “to enter a sentencing statement at all;”
(2) enters “a sentencing statement that explains reasons for imposing a sentence
– including a finding of aggravating and mitigating factors if any – but the
record does not support the reasons;” (3) enters a sentencing statement that
“omits reasons that are clearly supported by the record and advanced for
consideration;” or (4) considers reasons that “are improper as a matter of law.”
Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on reh’g, 875
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N.E.2d 218 (Ind. 2007). A trial court may consider as an aggravator the
defendant’s lack of remorse. Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App.
2002). A defendant lacks remorse “when he displays disdain or recalcitrance,
the equivalent of ‘I don’t care.’” Id. “This is distinguished from the right to
maintain one’s innocence, i.e., ‘I didn't do it.’” Id.
[14] During his sentencing hearing, Winfrey testified he consumed alcohol and
smoked marijuana the night of the episode, and the events “occurred because
they laced that marijuana with somethin’ . . . .” (Tr. at 34.) Winfrey further
testified he took full responsibility for his actions and he was not offering an
excuse for his behavior, but offered the explanation to the court to explain why
the events occurred and that his drug use was a contributing factor to his
behavior. (Id. at 33-36.) While pronouncing the sentence, the trial court stated:
And, when I was listening to you talk um, about what happened
that evening, what struck me is that um, while you are taking
responsibility – you say you’re taking responsibility for your um,
conduct that night – uh, your attempt to mitigate that conduct by
saying that, yeah, I smoked marijuana – and smoking marijuana
is a crime; possession of marijuana is a crime – but all of this
happened because the marijuana is laced with something else.
Without any regard for the fact that, number one, you were
doing something that was criminal. Number two, you shouldn’t
have been behind the wheel of a car because your driver’s license
was suspended. Number three, you shouldn’t have been drinking
and behind the wheel of a car. Um, and the fact that you wanted
to hang everything on this um, claim of having the marijuana
laced, is really troubling for me. Because that leaves in my mind
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a question about whether or not you are really accepting
responsibility for your conduct.
So, I – I – I have to find in my own mind that the – while you
um, say that this is not an excuse, I think you were trying to use
it as one. The Court finds that one of the aggravating
circumstances is that while you have uh, plead [sic] guilty, the
Court did not see any evidence of any remorse for your conduct.
(Id. at 51-52.)
[15] Winfrey offered an explanation as to what he believed contributed to his
behavior. The trial court determined the explanation amounted to an excuse
for his behavior. The trial court questioned whether Winfrey took
responsibility for his conduct, and perceived Winfrey’s excuse as a lack of
remorse. Our Supreme Court has indicated a trial court can consider “its
perception of a defendant’s remorse or lack thereof.” Schiro v. State, 479 N.E.2d
556, 559 (Ind. 1985), (emphasis added) reh’g denied, cert. denied, 475 U.S. 1036
(1986). We give substantial deference to the trial court’s evaluation of remorse
because the trial court has the ability to directly observe the defendant and is in
the best position to determine whether the remorse is genuine. Corralez v. State,
815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004). We cannot say that the trial court
abused its discretion in finding Winfrey’s explanation showed a lack of
remorse.
[16] The trial court further determined that Winfrey’s lack of remorse was an
aggravating factor. Winfrey refers us to nothing that would cause us to second
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guess the trial court’s determination. See Veal v. State, 784 N.E.2d 490, 494
(Ind. 2003) (“A trial court may find a defendant’s lack of remorse to be an
aggravating factor.”).
Conclusion
[17] The trial court did not abuse its discretion when it found Winfrey lacked
remorse and his lack of remorse was an aggravating factor. Accordingly, we
affirm his sentence.
[18] Affirmed.
Najam, J., and Riley, J., concur.
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Jeffrey Winfrey v. State of Indiana (mem. dec.)
Combined Opinion