MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 10 2017, 10:27 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demetrius Tate, May 10, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1612-CR-2909
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1606-F5-86
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Demetrius Tate (Tate), appeals his sentence following an
open guilty plea to operating a motor vehicle while privileges are forfeited for
life, a Level 5 felony, Ind. Code § 9-30-10-17.
[2] We affirm.
ISSUES
[3] Tate presents us with two issues on appeal, which we restate as:
(1) Whether the trial court abused its sentencing discretion by improperly
considering the probation department’s risk assessment score as an
aggravating circumstance; and
(2) Whether Tate’s sentence is inappropriate in light of the nature of the
offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] On June 15, 2016, the State filed an Information, charging Tate with operating
a motor vehicle while privileges are forfeited for life, a Level 5 felony. On
September 30, 2016, Tate pled guilty without the benefit of a plea agreement.
Thereafter, on November 17, 2016, the trial court conducted a sentencing
hearing. During the hearing, the trial court reviewed the presentence report and
heard testimony. The trial court took note of Tate’s extensive criminal history
and expressed its concern with “the repetitive nature of [his] criminal conduct[,]
[he] seem[s] to just keep getting into trouble after [sic] one thing after another.”
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(Transcript p. 35). The trial court found as aggravators Tate’s criminal history,
his probation violations, his history of failing to appear, and the instant offense
was committed while out on bond for another offense. While describing the
aggravators, the trial court also stated—without expressly referring to it as an
aggravator—“[m]ost importantly, the probation department finds that you are
very high risk to re-offend based upon . . . your criminal history and based upon
your ability not to follow probation rules and community corrections and the
like.” (Tr. p. 36). The trial court considered Tate’s guilty plea to be a
mitigating circumstance. As the aggravators outweighed the mitigator, the trial
court imposed a four-year sentence, with three years executed and one year of
supervised probation.
[5] Tate now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Aggravating Circumstance
[6] Tate contends that the trial court improperly sentenced him. Sentencing
decisions rest within the sound decision of the trial court and we review only for
an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if
the decision is clearly against the logic and effect of the facts and circumstances
before the court or the reasonable, probably, and actual deductions drawn
therefrom. Id. We review for an abuse of discretion the court’s finding of
aggravators and mitigators to justify a sentence, but we cannot review the
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relative weight assigned to those factors. Id. at 490-91. When reviewing the
aggravating and mitigating circumstances identified by the trial court in its
sentencing statement, we will remand only if “the record does not support the
reasons, or the sentencing statement omits reasons that are clearly supported by
the record, and advanced for consideration, or the reasons given are improper
as a matter of law.” Id.
[7] Tate contends that the trial court erred when it improperly considered the
probation department’s risk assessment score as an aggravating circumstance.
During the sentencing hearing, the trial court found as follows:
So, your criminal history – your significant criminal history is an
aggravator. You violated probation at least three (3) times and
you have a history of being rejected from community corrections.
You also have a history of failing to appear and those are
aggravators. Another aggravator is that this offense was
committed while you were out on bond on another offense.
When you are out on bond on another offense you are supposed
to promise to maintain good and lawful behavior and not go out
and commit any other offenses, yet you were driving when you
knew you were not supposed to drive and you didn’t have a valid
license. So, that puts you in jeopardy of not maintaining lawful
conduct while this – while another case was pending; that’s an
aggravator. Most importantly, the probation department finds
that you are very high risk to re-offend based upon []. The
probation department has found that you are very high risk to re-
offend based upon your criminal history and based upon your
ability not to follow probation rules and community corrections
and the like.
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(Tr. pp. 35-36). In its written sentencing order, the trial court enumerated as
aggravating factors: “[Tate’s] criminal history, he violated bond on another
case; he has had past Petitions to Revoke Probation filed and Failures to
Appear; he has been rejected by Community Corrections, and he is at a high
risk to reoffend.” (Appellant’s App. Vol. II, p. 21).
[8] In Malenchik v. State, 938 N.E.2d 564, 575 (Ind. 2010), our supreme court
concluded that “the nature of risk assessment tools is not to function as a basis
for finding aggravating circumstances[;]” however,
they can be significant sources of valuable information of judicial
consideration in deciding whether to suspend all or part of a
sentence, how to design a probation program for the offender,
whether to assign an offender to alternative treatment facilities or
programs, and such other corollary sentencing matters. The
scores do not in themselves constitute an aggravating or
mitigating circumstance because neither the data selection and
evaluations upon which a probation officer or other
administrator’s assessment is made nor the resulting scores are
necessarily congruent with a sentence judge’s findings and
conclusion regarding relevant sentencing factors.
Id. at 572, 573. The Malenchik court reasoned that
[h]aving been determined to be statistically valid, reliable, and
effective in forecasting recidivism, the assessment tool scores
may, and if possible should, be considered to supplement and
enhance a judge’s evaluation, weighing, and application of other
sentencing evidence in the formulation of an individualized
sentencing program appropriate for each defendant.
****
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[A]ssessment instruments enable a sentencing judge to more
effectively evaluate and weigh several express statutory
sentencing considerations such as criminal history, the likelihood
of affirmative response to probation or short term imprisonment,
and the character and attitudes indicating that a defendant is
unlikely to commit another crime. Furthermore, even apart from
these statutory criteria, which do not limit the matters that the
court may consider in determining the sentence, the offender’s
scores and/or narrative results may be considered by a trial judge
in reaching an informed sentencing decision.
Id. at 573, 574 (internal references omitted).
[9] During the sentencing hearing, the trial court explicitly designated four
aggravators: Tate’s criminal history, his failures to appear, his probation
violations, and committing a crime while out on bond. While not expressly
categorized as an aggravator, the trial court found it “important[]” that the
probation department assessed Tate to be at a high risk to re-offend. (Tr. p. 36).
In its written sentencing statement, the trial court lists Tate’s “very high risk to
re-offend” as an aggravator but did not reference the probation’s department
formal assessment directly. (Appellant’s App. Vol. II, p. 21).
[10] The determination that Tate was a high risk at re-offending is part and parcel to
sentencing decisions. “Statements regarding a defendant’s risk to reoffend or
failure to rehabilitate are ‘derivative of criminal history, [and] are legitimate
observations about the weight to be given to facts appropriately noted by a
judge in sentencing.” Mateo v. State, 981 N.E.2d 59, 74 (Ind. Ct. App. 2012),
(citing Morgan v. State, 829 N.E.2d 12, 17 (Ind. 2005)), trans. denied. “The
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likelihood that a defendant will commit further offenses once released is a
crucial factor in determining whether a sentencing court should be lenient with
defendant and whether to offer him probation, an alternate placement, or a fully
executed sentence.” Mateo, 981 N.E.2d at 74.
[11] We agree with the State that by not expressly defining the probation
department’s risk assessment as an aggravator, the trial court used the
assessment as directed by our supreme court, i.e., as a supplement to both the
discretionary determination that Tate was at a high risk to re-offend and the
broader determination of his overall sentence. After discussing Tate’s
significant and lengthy criminal history, his failures to appear, his probation
violations, and his violation of bond conditions, the trial court’s logical
conclusion amounted to a finding that Tate was at risk to re-offend. By using
the phrasing “most importantly,” the trial court merely enforced the value of its
explicit aggravators with a conclusion also reached by the probation department
in its risk assessment. (Tr. p. 36). In other words, the trial court independently
determined Tate’s high risk to re-offend, which it then evaluated and supported
by reference to the probation department’s risk assessment.
[12] However, even if the trial court improperly considered the probation
department risk assessment determination as a separate aggravator, we can say
with confidence that, had the trial court considered only the proper aggravators,
it would have imposed the same sentence. A “remand for resentencing may be
the appropriate remedy if we cannot say with confidence that the trial court
would have imposed the same sentence” had it considered the proper
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aggravating circumstances. Anglemyer, 868 N.E.2d at 491. Besides the high risk
to re-offend, the trial court found four other aggravators which are not disputed
by Tate. “A single aggravating circumstance may be sufficient to enhance a
sentence.” Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). On the other
hand, the trial court found a single mitigating factor: Tate’s guilty plea. After
weighing the aggravators and mitigator, the trial court sentenced Tate to a four-
year aggravated sentence, which is one year more than the advisory sentence of
a Level 5 felony. See I.C. § 35-50-2-6. Disregarding Tate’s risk to re-offend, still
leaves four valid aggravators to be weighed against one mitigator. Accordingly,
we conclude that the trial court did not abuse its discretion when it sentenced
Tate.
II. Appropriate Sentence
[13] Pursuant to Indiana Appellate Rule 7(B), we 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.” Under this rule, the question is not whether another
sentence is more appropriate, but whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The
principal role of appellate review is to “leaven the outliers;” it is “not to achieve
a perceived correct result in each case.” Cardwell v. State, 895 N.E.2d 1219,
1225 (Ind. 2008). The appropriateness of the sentence turns on this court’s
“sense of the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad other factors that come to light in a given case.”
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Id. at 1224. The defendant carries the burden of persuading this court that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The defendant must show that his sentence is inappropriate in light of both his
character and the nature of the offense. Williams v. State, 891 N.E.2d 621, 633
(Ind. 2006).
[14] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. The sentencing range for a Level 5 felony is between one and six years,
with the advisory sentence being three years. See I.C. § 35-50-2-6. Here, the
trial court sentenced Tate to a four-year sentence with one year suspended.
Tate’s sentence is not inappropriate in light of the nature of the offense. Tate
pled guilty to operating a vehicle after his driving privileges were forfeited for
life pursuant to a prior conviction. While there is nothing unique about his
charge, Tate, however, fails to persuade us that the nature of his offense
warrants a reduction of his sentence.
[15] Turning to Tate’s character, we echo the trial court that Tate “just keep[s]
getting into trouble[.]” (Tr. p. 35). Tate’s criminal history commenced in 2002,
and throughout the years he has amassed four prior felony convictions for Class
D felony theft, Class D felony possession of marijuana, and Class D felony
operating a vehicle after being adjudged a habitual traffic offender. Thirty-two-
year-old Tate has been found a habitual substance offender twice and has
eleven misdemeanor convictions, two of which occurred after the commission
of the instant offense. In the past, Tate has received the benefit of short
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sentences, suspended sentences, longer jail sentences, unsupervised probation,
supervised probation, home detention, work release, community service, and
substance abuse treatment all to no avail. His criminal record establishes
twelve failures to appear, violations of home detention and work release
conditions, probation revocations, and the violation of bond conditions. Tate
also started abusing alcohol when he was thirteen years old, and turned to using
marijuana every day beginning in his early twenties until 2009. Thereafter, he
used marijuana, synthetic marijuana, and ecstasy on occasion.
[16] Clearly, lenient punishment has been wasted on Tate and there is no indication
that a more lenient sentence now will encourage him to rehabilitate. While
Tate testified to having bettered himself in the two weeks prior to the sentencing
hearing, the evidence of this short-term good behavior cannot outweigh his long
history of repetitive, criminal behavior. We agree with the State that “[s]hould
Tate earnestly seek to reform his ways, he has opportunity to demonstrate as
much throughout his incarceration, [and] during his subsequent probation
period[.]” (Appellee’s Br. pp. 18-19). Accordingly, we conclude that Tate
failed to establish that the nature of the crime and his character provide a reason
to revise his sentence.
CONCLUSION
[17] Based on the foregoing, we conclude that the trial court properly sentenced
Tate.
[18] Affirmed.
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[19] Najam, J. and Bradford, J. concur
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Demetrius Tate v. State of Indiana (mem. dec.)
Combined Opinion