MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Dec 19 2017, 10:17 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mouhamadou M. Sow, December 19, 2017
Appellant-Defendant, Court of Appeals Case No.
32A05-1707-CR-1692
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Rhett M. Stuard,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32D02-1604-F3-20
Pyle, Judge.
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Statement of the Case
[1] Mouhamadou Sow (“Sow”) appeals his convictions, entered following a guilty
plea, for Level 3 felony operating a motor vehicle while intoxicated (“OVWI”)
causing serious bodily injury and leaving the scene 1 and two counts of Level 6
felony OVWI causing serious bodily injury.2 On appeal, he argues that the trial
court abused its discretion by failing to consider a mitigating factor and that his
sentence was inappropriate. Because we find that the trial court did not abuse
its discretion and that Sow’s sentence was not inappropriate, we affirm the trial
court’s decision.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion when it sentenced
Sow.
2. Whether Sow’s sentence was inappropriate.
Facts
[3] Around 8 a.m. on April 16, 2016, Sow was driving westbound on U.S. 40 near
Plainfield when he crossed the double yellow line into oncoming traffic. Nikki
Shoultz (“Shoultz”) was driving eastbound in the lane that Sow entered and
1
IND. CODE § 9-26-1-1.1(a)(2).
2
I.C. § 9-30-5-4(a)(1).
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was unable to avoid his car as there were cars in the lane next to her. As a
result, Sow collided into Shoultz’s car, head-on and going full speed.
[4] Shoultz’s thirteen-year-old daughter and her daughter’s thirteen-year-old friend,
Brooke (“Brooke”), were in the backseat of Shoultz’s car at the time of the
crash. After the crash, Shoultz exited the car to check on both of the teenagers
and saw that Brooke’s face was covered in blood. Brooke’s face had hit the side
of the arm rest in the back seat, and she had lost two of her front, permanent
teeth. However, both teenagers were able to walk, and Shoultz took them to
the side of the road where Sow was already sitting.
[5] A witness who had seen the crash called 9-1-1. When police and ambulance
personnel started to arrive, Sow got up and started “walking briskly” up a
nearby hill. (Tr. Vol. 2 at 18). He then hid from police officers until he was
finally intercepted by a K-9 officer and surrendered himself.
[6] Once Sow was in police custody, Corporal Zach Gadawski (“Corporal
Gadawski”) with the Plainfield Police Department detected an “odor of
marijuana about him.” (Tr. Vol. 2 at 29). Corporal Gadawski conducted a pat
down search and discovered a small bag of a “green leafy substance” that later
tested positive for marijuana in Sow’s front pocket. (Tr. Vol. 2 at 30). Officers
also discovered several Budweiser beer cans in the back of Sow’s vehicle and
noticed that Sow had “red and watery eyes” and “slurred speech.” (Tr. Vol. 2
at 30). Corporal Gadawski took Sow for a blood draw, and the blood draw
showed that Sow had marijuana in his system and a blood alcohol content of
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0.148. Sow told Corproal Gadawski that he had run from the police because he
supported his family and could not go to jail. In addition, at no point did Sow
ask how Shoultz or the children were or express any concern for them.
[7] Shoultz and the children were taken to the hospital, where it was determined
that Brooke had lost her two front teeth. An orthodontic specialist later told
Brooke that she would not be able to replace her missing teeth with implants
until she reached the approximate age of eighteen and stopped growing.
Shoultz sustained bruising along her abdomen and chest that took three to four
months to heal, as well as bruises to the bone marrow of her left leg.
[8] On April 18, 2016, the State charged Sow with Level 3 felony OVWI causing
serious bodily injury and leaving the scene of the accident; Class A
misdemeanor OVWI; Class B misdemeanor public intoxication and
endangering another person; and three traffic infractions. On December 2,
2016, the State amended the charging information and charged Sow with the
following additional counts: two counts of Level 6 felony OVWI causing
serious bodily injury; two counts of Level 6 felony operating per se (drugs)
causing serious bodily injury; and Class B misdemeanor possession of
marijuana.
[9] On June 23, 2017, Sow pled guilty to Level 3 felony OVWI causing serious
bodily injury and leaving the scene and two counts of Level 6 felony OVWI
causing serious bodily injury. In exchange, the State dismissed the remaining
charges and agreed that Sow would have a sentencing cap of nine (9) years for
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his Level 3 felony and two and one half (2½) years each for his Level 6 felonies,
with all sentences to be served concurrently.
[10] Subsequently, the trial court accepted the plea agreement and held a sentencing
hearing. At the hearing, Shoultz testified that Brooke had undergone a number
of procedures as a result of her injuries. According to Shoultz, Brooke now
wears temporary teeth and has a speech impediment. Shoultz also testified that
her daughter gets “very very upset” when she sees accidents and remembers the
“trauma of that day . . . .” (Tr. Vol. 2 at 26).
[11] Next, Sow spoke at the sentencing hearing and explained that he is an
immigrant from Senegal who has lived in the United States since 2013. His
wife, who is an American citizen, had separated from him in 2014 as a result of
his drinking problems. At the time of the sentencing hearing, according to Sow,
he was “just short of being able to obtain citizenship,” in terms of his time in
the United States, but was no longer going to be able to obtain citizenship
because of his convictions. (Tr. Vol. 2 at 46). Sow testified that it was his
understanding that he was instead going to be deported.
[12] With respect to his criminal history, Sow acknowledged that he had previously
been charged with disorderly conduct and public intoxication in another cause.
In October 2015, he had entered into a pre-trial diversion agreement, and that
agreement had been pending when he committed the current offenses.
[13] Sow’s Alcoholics Anonymous (“AA”) sponsor also testified at the sentencing
hearing and said that Sow had been attending AA meetings twice a week since
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October of 2016. During this time, the sponsor had seen Sow show “a real
desire to stay sober.” (Tr. Vol. 2 at 39). He also noted that Sow had not
relapsed at all during that time.
[14] At the conclusion of the sentencing hearing, the trial court sentenced Sow to an
executed term of four (4) years for his Level 3 felony OVWI causing serious
bodily injury and leaving the scene conviction and to two and one half (2½)
years for each of his Level 6 felony OVWI causing serious bodily injury
convictions. The trial court also ordered the sentences to be served
concurrently. Thus, the trial court imposed an aggregate sentence of four (4)
years, which was less than the term allowed by Sow’s plea agreement.
[15] In support of this sentence, the court found as aggravating factors that: (1) the
injuries sustained by the victims were greater than necessary to prove the
offenses, including “a very severe injury to a thirteen-year-old girl;” (2) Sow had
a pending pre-trial diversion agreement at the time of his offense; and (3) Sow
had a recent criminal history at the time of the offense. As mitigating factors,
the trial court found that Sow had: (1) “[led] primarily a law-abiding life;” (2)
was likely to respond to probation and short-term imprisonment; and (3) was
remorseful for his actions. (Tr. Vol. 2 at 62). The trial court also noted,
the taxpayers in the State of Indiana are going to house Mr. Sow,
[] pay for his food and clothing, shelter and all that, [] depending
on how long [] I [choose] to sentence him for. And then as a
result of that he’s going to be deported back to Senegal and it, . . .
there’s a part of me that says . . . why should the taxpayers foot
that bill if he’s going to be leaving the United States[?]
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(Tr. Vol. 2 at 61). Sow now appeals his sentence.
Decision
[16] On appeal, Sow argues that: (1) the trial court abused its discretion when it
sentenced him because it failed to consider one of his proffered mitigating
factors; and (2) his sentence was inappropriate in light of the nature of his
offenses and his character. We will address each of these issues in turn.
1. Mitigating Factors
[17] First, Sow argues that the trial court abused its discretion when it sentenced him
because it failed to identify his inevitable deportation as a mitigating factor as
he had requested. Sentencing decisions rest within the sound discretion of the
trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g
875 N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory
range, it is subject to review only for an abuse of discretion. Id. We will find an
abuse of discretion where the decision is clearly against the logic and effect of
the facts and circumstances before the court or the reasonable, probable, and
actual deductions to be drawn therefrom. Id. A trial court may abuse its
discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that includes aggravating
and mitigating factors that are unsupported by the record; (3) entering a
sentencing statement that omits reasons that are clearly supported by the
record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490–91.
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[18] Although a sentencing court must consider all evidence of mitigating factors
offered by a defendant, the finding of mitigating factors rests within the court’s
discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is
neither required to find the presence of mitigating factors, Fugate v. State, 608
N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a
factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.
2001). A defendant who claims that the trial court failed to find a mitigating
factor must establish that the mitigative evidence was both significant and
clearly supported by the record. Anglemyer, 868 N.E.2d at 493.
[19] Here, the trial court acknowledged the potential that Sow would be deported
but did not find that potential to be a mitigating circumstance. Sow argues that
this decision was an abuse of discretion, but we have previously held that a trial
court is not required to find a defendant’s potential deportation to be a
mitigating factor. See Mendoza v. State, 737 N.E.2d 784, 788 (Ind. Ct. App.
2000) (finding that the trial court did not abuse its discretion when it did not
find that the defendant’s potential deportation was a mitigating factor), reh’g
denied. See also Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App. 2017) (“[T]he
court is neither obligated to accept the defendant’s arguments as to what
constitutes a mitigating factor nor required to give the same weight to a
proposed mitigating factor as does the defendant.”), trans. denied. Because the
trial court was not required to consider Sow’s deportation a mitigating factor,
we conclude that the trial court did not abuse its discretion.
2. Inappropriate Sentence
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[20] Next, Sow argues that his aggregate four-year executed sentence was
inappropriate in light of the nature of his offenses and his character. Under
Indiana Appellate Rule 7(B), we may revise a sentence if it is inappropriate in
light of the nature of the offense and the character of the offender. The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
Rule 7(B) review “should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied.
[21] When determining whether a sentence is inappropriate, we acknowledge that
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.
Sow pled guilty to one Level 3 felony and two Level 6 felonies. A Level 3
felony carries a sentencing range of three (3) to sixteen (16) years, with an
advisory sentence of nine (9) years. I.C. § 35-50-2-5. A Level 6 felony carries a
sentencing range of six (6) months to two and one half (2½) years with an
advisory sentence of one (1) year. I.C. § 35-50-2-7. Here, the trial court
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sentenced Sow to an aggregate of four (4) years, which was five (5) years less
than the advisory term for his three concurrent sentences.
[22] The nature of Sow’s offense involved him driving intoxicated with a blood
alcohol level of 0.148 and marijuana in his system. He crashed into Shoultz’s
car, causing serious injuries to her and her daughter’s friend. Then, instead of
checking to see whether Shoultz and the two children were okay, he attempted
to escape from police.
[23] As for Sow’s character, the State had recently charged Sow with committing
two alcohol-related offenses (disorderly conduct and public intoxication), and
Sow had a pending pre-trial diversion agreement relating to those two charges
at the time of the instant offenses.
[24] In light of these factors, we conclude that the trial court’s sentence was not
inappropriate. Sow seems to suggest that his sentence should reflect evidence of
his good character in the record, including his attempts to seek treatment and
his decision to plead guilty. However, we find that the trial court’s sentence
took his assertion into account. Sow received five years less than the advisory
sentence for his Level 3 felony conviction, meaning that his aggregate sentence
was close to the minimum sentence he could receive. Such a sentence was not
inappropriate in light of the nature of his offenses and his character.
[25] Affirmed.
Kirsch, J., and Bailey, J., concur.
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Mouhamadou M. Sow v. State of Indiana (mem. dec.)
Combined Opinion