MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Apr 04 2016, 5:49 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Gregory F. Zoeller
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Lee Dulin, April 4, 2016
Appellant-Defendant, Court of Appeals Case No.
79A05-1508-CR-1155
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1501-F5-6
Robb, Judge.
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Case Summary and Issue
[1] Richard Lee Dulin pleaded guilty to operating a vehicle while privileges are
forfeited for life, a Level 5 felony, and resisting law enforcement, a Class A
misdemeanor. Dulin pleaded guilty without the benefit of a plea agreement
and received an aggregate sentence of five years, with two years suspended to
probation. Dulin appeals, raising the sole issue of whether his sentence is
inappropriate in light of the nature of the offenses and his character.
Concluding Dulin’s sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] On January 28, 2015, officers of the Lafayette Police Department were
traveling in their police vehicle when they observed a 1991 Ford Escort fail to
stop at a stop sign. They activated their vehicle’s emergency lights to initiate a
traffic stop, but the Escort did not immediately stop. Instead, the driver of the
Escort, later identified as Dulin, continued for roughly fifteen blocks before
stopping, exiting the vehicle, and fleeing on foot. The officers chased Dulin for
two more blocks, giving loud verbal commands for him to stop, but Dulin did
not comply. Eventually, one of the officers caught up with Dulin and forced
Dulin to the ground. Once Dulin was in custody, the officers checked his
driving status and determined his driving privileges had been forfeited for life.
[3] The State charged Dulin with Count I, operating a vehicle while privileges are
forfeited for life, a Level 5 felony; and Count II, resisting law enforcement, a
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Class A misdemeanor. Dulin pleaded guilty without the benefit of a plea
agreement. The trial court found as aggravating factors: (1) Dulin’s significant
criminal history; (2) the State’s eleven petitions to revoke his probation (six of
which had been found true and two of which were still pending); (3) that his
placement in a Community Corrections program had previously been revoked;
and (4) that he was written up in the county jail while the present case was
pending. It considered the following factors mitigating: (1) Dulin’s mental
illness and history of substance abuse; (2) his history of being employed; (3) that
he pleaded guilty in the present case; and (4) that he took advantage of
programs while in jail. Concluding the aggravating factors outweighed the
mitigating ones, the trial court sentenced Dulin to four years on Count I and
one year on Count II, to be served consecutively, with two years in the
Department of Correction, one year of direct placement in Community
Corrections, and two years suspended to probation. This appeal followed.
Discussion and Decision
I. Standard of Review
[4] A person who pleads guilty is entitled to contest on direct appeal the merits of a
trial court’s sentencing decision where the trial court has exercised discretion.
Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004). Dulin pleaded guilty without
the benefit of a plea agreement and now contends the sentence the trial court
imposed is inappropriate in light of the nature of the offenses and his character.
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[5] Indiana Appellate Rule 7(B) provides, “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” The defendant bears the burden of
persuading this court that his or her sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as
inappropriate turns on “the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Finally,
we note the principal role of appellate review is to “leaven the outliers,” not
achieve the perceived “correct” result in each case. Id. at 1225. We therefore
“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.” Id.
II. Inappropriate Sentence
[6] As to the nature of the offenses, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.
Childress, 848 N.E.2d at 1081. Dulin was convicted of operating a vehicle while
privileges are forfeited for life, a Level 5 felony, and resisting law enforcement,
a Class A misdemeanor. A Level 5 felony carries a possible sentence of one to
six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). A
person who commits a Class A misdemeanor shall be sentenced to not more
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than one year. Ind. Code § 35-50-3-2. There is no advisory sentence for a Class
A misdemeanor. See id.
[7] The trial court sentenced Dulin to four years for operating a vehicle while
privileges are forfeited for life and one year for resisting law enforcement, to be
served consecutively, with two years suspended to probation. In addition to
driving when he was prohibited from doing so, Dulin ran a stop sign, thereby
endangering the public, and did not pull over when the officers activated their
emergency lights. He continued driving for fifteen blocks and then exited his
vehicle to flee on foot. We conclude the nature of the offenses supports the
sentence imposed.
[8] As to Dulin’s character, he was on parole and probation at the time of the
offenses, and there were two pending petitions to revoke his probation. His
criminal history includes seven felonies and nine misdemeanor convictions as
an adult, as well as three true findings as a juvenile. Dulin has never possessed
a valid driver’s license but forfeited his driving privileges for life in 2013 (at the
age of twenty-five) following his convictions for operating a vehicle while never
receiving a license, operating a vehicle with an alcohol concentration equivalent
of 0.08 to 0.15 grams, operating a vehicle with a Schedule I or II controlled
substance in his body, and operating a vehicle as an habitual traffic violator.
He also has prior felony convictions for theft, resisting law enforcement, and
unlawful possession of a syringe. This case marks his third conviction for
resisting law enforcement.
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[9] In short, Dulin continues to reoffend, and he admits he has been “abusing drugs
and alcohol for years.” Brief of Appellant at 6. Although Dulin has been
ordered by the court to undergo treatment for substance abuse and mental
illness in past years, there is nothing in the record to suggest Dulin has ever
voluntarily taken steps to address the issues he now blames for his behavior.
While we do not wish to downplay the severity of Dulin’s addiction or the
difficulty of living with bipolar disorder, we cannot ignore his utter disregard for
the law and failure to take responsibility. See Bryant v. State, 802 N.E.2d 486,
501 (Ind. Ct. App. 2004) (holding the trial court did not err in concluding the
defendant’s substance abuse was an aggravating factor where the record showed
he “was aware of his drug and alcohol problem, yet he had not taken any
positive steps to treat his addiction”), trans. denied. Both the nature of the
offenses and Dulin’s character support the sentence imposed by the trial court. 1
Conclusion
[10] Dulin’s sentence is not inappropriate in light of the nature of the offenses and
his character. We therefore affirm his sentence.
[11] Affirmed.
1
To the extent Dulin argues the trial court improperly weighed his mental illness and substance abuse as
mitigating factors, the relative weight or value assignable to factors properly found by the trial court is not
subject to appellate review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218.
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Barnes, J., and Altice, J., concur.
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