MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 20 2017, 9:38 am
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
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John M. Skorvanek, June 20, 2017
Appellant-Defendant, Court of Appeals Case No.
58A01-1612-CR-2879
v. Appeal from the Ohio Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
The Honorable Kimberly A.
Schmaltz, Magistrate
Trial Court Cause No.
58C01-1206-CM-57
Bradford, Judge.
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Case Summary
[1] On June 18, 2012, Appellant-Defendant John M. Skorvanek was observed
driving away from the Rising Star Casino and Resort in an erratic fashion.
Skorvanek was soon thereafter stopped by police. The police administered two
field sobriety tests (“FSTs”), both of which Skorvanek failed. Skorvanek
submitted to a portable breathalyzer test (a “PBT”), the results of which
indicated that Skorvanek’s blood alcohol content (“BAC”) was above the legal
limit. He subsequently submitted to a certified breath test, the results of which
also indicated that Skorvanek’s BAC was above the legal limit.
[2] The next day, on June 19, 2012, Appellee-Plaintiff the State of Indiana (“the
State”) charged Skorvanek with Class A misdemeanor operating a vehicle while
intoxicated endangering a person and Class C misdemeanor operating a vehicle
with a BAC over 0.08. The State also alleged that Skorvanek was a habitual
offender. Following a bench trial, the trial court found Skorvanek guilty,
merged the Class C misdemeanor charge into the Class A misdemeanor, found
Skorvanek to be a habitual offender, and imposed an aggregate nine-year
sentence.
[3] On appeal, Skorvanek contends that his sentence is inappropriate in light of the
nature of his offense and his character. Concluding otherwise, we affirm.
Facts and Procedural History
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[4] On June 18, 2012, Skorvanek and a female companion were “cut off for
drinking” at the Rising Star Casino and Resort. Tr. Vol. II, p. 12. Trisha
Schwing, a Gaming Enforcement Agent employed by the Indiana Gaming
Commission and stationed at the Rising Star Casino, then observed Skorvanek
and his companion exit the casino and approach a minivan. As Skorvanek’s
companion “got into” the minivan, Skorvanek “opened the back of the minivan
and pulled a cooler out and opened a couple of beers and then got into” the
minivan and drove away. Tr. Vol. II, p. 12. Schwing then “called Ohio
County dispatch and advised them” of what she had observed. Tr. Vol. II, p.
13.
[5] Rising Sun Police Sergeant Frank McIntosh observed as the minivan in
question1 “was leaving the casino property and entering State Route 56.” Tr.
Vol. II, p. 15. Sergeant McIntosh observed the minivan “swerving in and out of
the lane” and driving “halfway on the right shoulder [i.e., the emergency lane]
of the highway.” Tr. Vol. II, pp. 15, 16 (bracketed information added).
Sergeant McIntosh observed the minivan for “about a quarter of a mile,”
watching it travel “back and forth from the centerline over to the right
shoulder.” Tr. Vol. II, p. 16. Just as Sergeant McIntosh activated his lights, the
driver of the minivan “made a left turn into a driveway at a residence.” Tr. Vol.
1
Sergeant McIntosh identified the minivan by both the vehicle’s color and license plate number.
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II, p. 16. At the time, Sergeant McIntosh was familiar with the individuals who
lived at the residence and knew that they did not own a similar minivan.
[6] Skorvanek then exited the vehicle, at which time Sergeant McIntosh observed
that Skorvanek, and not his female companion, had been driving the minivan.
As Skorvanek was approaching the residence, Sergeant McIntosh “spoke with
[Skorvanek], asked him where he was going.” Tr. Vol. II, p. 17. Skorvanek
“came back and kind of used the van to lean on.” Tr. Vol. II, p. 17.
[7] Sergeant McIntosh and Skorvanek “met about halfway” between the residence
and the minivan. Tr. Vol. II, p. 17. From his position about four feet from
Skorvanek, Sergeant McIntosh could smell “a strong odor of alcoholic
beverages coming from [Skorvanek’s] person.” Tr. Vol. II, p. 17. About this
time, Rising Sun Police Officer Wayne Siekman arrived on the scene. When
Officer Siekman approached Skorvanek, he could also “smell the odor of an
alcoholic beverage coming from [Skorvanek’s] person.” Tr. Vol. II, p. 24.
[8] Officer Siekman administered two FSTs to Skorvanek, the “gaze nystagmus”
and the “walk and turn” tests. Tr. Vol. II, p. 25. Skorvanek failed both tests.
Officer Siekman did not administer the commonly used “one leg stand” test
because Skorvanek reported that he had a broken rib and was not physically
able to complete the test. Officer Siekman then administered a PBT to
Skorvanek. Skorvanek registered a 0.119 BAC on this test. Skorvanek later
submitted to a certified breath test, registering a 0.10 BAC.
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[9] On June 19, 2012, the State charged Skorvanek with Class A misdemeanor
operating a vehicle while intoxicated endangering a person and Class C
misdemeanor operating a vehicle with a BAC over 0.08. The State also alleged
that Skorvanek was a habitual offender. Following a March 29, 2016 bench
trial, at which Skorvanek was tried in absentia, the trial court (1) found
Skorvanek guilty of Class A misdemeanor operating a vehicle while intoxicated
endangering a person, (2) merged the Class C misdemeanor charge into the
Class A misdemeanor charge, and (3) found that Skorvanek was a habitual
offender.
[10] The trial court conducted a sentencing hearing on November 4, 2016, after
which the trial court took Skorvanek’s sentence under advisement. On
November 18, 2016, the trial court issued a sentencing order in which it
sentenced Skorvanek as follows:
1. The Court considers the nature and the circumstances of the
crime.
2. The Court considers the following aggravating factors
pursuant to IC 35-38-1-7.1(a):
The Defendant’s history of criminal or delinquent
behavior: Defendant is a lifelong resident of the State of Ohio.
He has at least 41 prior felony convictions and 24 misdemeanor
convictions. He has served multiple sentence in the Ohio
Department of Corrections. The PSI reports that he had been to
prison on six different occasions. The Defendant was out on bail
from the state of Kentucky and the State of Ohio when he
committed the instant offense. Defendant has completely failed
to comply with his conditions of pretrial release, including that
he appear at all hearings before this Court unless otherwise
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ordered by the Court.
3. The Court considers the following mitigating factors pursuant
to IC 35-38-1-7.1(b):
A. The Court does find that the crime is the result of
circumstances likely to reoccur based [upon] the Defendant’s
extensive criminal history and his lifelong history of drug and
alcohol use and abuse.
B. The Court does not find the Defendant to be a
candidate for probation and/or short term imprisonment. The
PSI reiterates in detail the number of times the Defendant has
been in jail, on probation and to the Department of Corrections.
None of the prior 41 felony convictions, 24 misdemeanor
convictions or sentences imposed for the same, or terms of prior
probation have deterred the Defendant from committing new
crimes.
The Court further finds the Defendant is not an
appropriate candidate for community corrections. He does not
reside in this state, has significant criminal history, has failed to
appear before this Court as ordered, and the Defendant has
shown complete disdain to this Court as evidenced by
Defendant’s statement at sentencing when he said “I run. That is
what I do.” The Court has good reason to believe he would
continue to ignore and/or disregard the Court’s orders. In
addition, the Court considers the need to obtain a Governor’s
Warrant to secure his attendance at sentencing.
C. Defendant is currently employed as a caregiver. The
Court considers Defendant’s employment to be a mitigating
factor. The Court does not give significant weight to this
mitigator.
D. The Defendant is an intelligent person. By his own
testimony, he has over 6 years of college. He has been in AA for
decades. He has been a sponsor for other addicts. He continues
to make poor choices and decisions that create significant risk
and danger to himself and others in the community.
4. The Court finds that the Defendant has significant aggravating
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factors and few mitigating factors.
The Court now sentences the Defendant, John M. Skorvanek, as
follows:
1. Defendant, John M. Skorvanek, is hereby sentenced to 365
days with 0 days suspended to probation for Operating a Motor
Vehicle While Intoxicated endangering a person, a Class A
Misdemeanor with an additional 8 years for the Habitual
Substance Offender enhancement pursuant to I.C. 35-50-2-10.
Pursuant to I.C. § 35-38-3-3(b)(3), Defendant shall serve his
sentence in the Indiana Department of Correction.
2. Defendant shall receive credit for 62 days previously served
plus 62 days of good time credit for a total of 124 days. This
credit is calculated as of November 18, 2016.
Appellant’s App. Vol. II – Confidential, pp. 107-08 (underlining in original).2
This appeal follows.
Discussion and Decision
[11] On appeal, Skorvanek contends that his aggregate nine-year sentence for
operating a vehicle while intoxicated endangering a person and being a habitual
offender is inappropriate. In challenging the appropriateness of his sentence,
Skorvanek asserts that his sentence is inappropriate because “[a] nine-year
sentence stands as a harsh punishment given the relatively minor nature of the
2
Additional portions of the sentencing order which outline certain fees and are not relevant to the term of
years imposed by the trial court have been intentionally omitted from this memorandum decision.
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underlying offense and the fact that Mr. Skorvanek suffers from a treatable drug
addiction.” Appellant’s Br. p. 10. Skorvanek’s assertion, however, ignores the
fact that Skorvanek’s failure to seek treatment or refrain from criminal activity,
as evidenced in part by his significant criminal history, demonstrates an
unwillingness to change his behavior and conform to the laws of Indiana and
her neighboring states. In fact, Skorvanek’s actions more accurately
demonstrate a complete disdain for the laws of this state and nation, as well as
the safety of those around him.
[12] Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[13] With respect to the nature of Skorvanek’s offense, the record reveals that
Skorvanek continued drinking after having been denied service from casino
staff due to his obvious intoxication. In doing so, Skorvanek endangered
himself, his companion, and the other motorists around him by operating a
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vehicle while under the influence of alcohol. The penalty imposed for this act
was one year. The remaining eight years of Skorvanek’s sentence were
imposed in connection to Skorvanek’s status as a habitual offender. Skorvanek
does not dispute the fact that he qualified as a habitual offender or argue that
the eight years imposed in connection to his habitual offender status was
unlawful.
[14] As for Skorvanek’s character, the record reveals that Skorvanek has a criminal
history that includes a surprising number of both misdemeanor and felony
convictions. In fact, Skorvanek’s criminal history includes twenty-four
misdemeanor convictions and forty-one felony convictions. Skorvanek’s
criminal history also includes numerous prior probation violations. Despite the
fact that Skorvanek has been to prison on at least six different occasions, he has
failed to refrain from continued criminal behavior. He also has apparently
failed to benefit from prior attempts at rehabilitation or “decades” long
membership in Alcoholics Anonymous. Appellant’s App. Vol. II –
Confidential, p. 108.
[15] In addition, Skorvanek was out on bail awaiting trial in both Ohio and
Kentucky at the time he committed the underlying offense. It also reflects
poorly on Skorvanek’s character that he failed to comply with the terms of his
pre-trial release, specifically that he failed to appear for hearings and trial and
that the trial court had to obtain a Governor’s Warrant in order to secure
Skorvanek’s attendance at sentencing. Skorvanek also displayed disdain for the
trial court’s authority, explaining his failure to appear before the trial court by
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saying “I run. That is what I do.” Appellant’s App. Vol. II – Confidential, p.
108. Moreover, the Ohio County Probation Department indicated that a risk
assessment of Skorvanek placed him “in the MODERATE risk category to re-
offend.” Appellant’s App. Vol. II – Confidential, p. 97. Upon review, we
conclude that Oliver has failed to prove that his sentence is inappropriate in
light of the nature of his offenses and his character.
[16] The judgment of the trial court is affirmed.
Najam, J., and Riley, J., concur.
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