MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 05 2020, 10:38 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
R. Patrick Magrath Benjamin J. Shoptaw
Alcorn Sage Schwartz & Magrath, LLP Deputy Attorney General
Madison, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tammy Blevins, June 5, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2822
v. Appeal from the Decatur Superior
Court
State of Indiana, The Honorable Matthew D.
Appellee-Plaintiff, Bailey, Judge
Trial Court Cause Nos.
16D01-1710-F6-1041
16D01-1811-CM-1491
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2822 | June 5, 2020 Page 1 of 10
Case Summary and Issue
[1] Following a guilty plea in two separate causes, Tammy Blevins was convicted
of operating a vehicle with an alcohol concentration equivalent (“ACE”) of at
least .15 as a Level 6 felony and operating a vehicle while intoxicated as a Class
A misdemeanor. Blevins also admitted to being an habitual vehicular substance
offender with respect to each cause. The trial court sentenced Blevins to an
aggregate sentence of approximately six years, including 360 day consecutive
sentences for each of her convictions and concurrent 1,440 day enhancements
to each sentence due to her status as an habitual vehicular substance offender.
The sentences were ordered to be served in the Indiana Department of
Correction (“DOC”), with 360 days suspended to probation. Blevins appeals
her sentence and raises one issue for our review: whether her sentence is
inappropriate in light of the nature of her offenses and her character.
Concluding that Blevins’ sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] On October 5, 2017, at approximately 1:00 a.m., Officer Patrick Richards of the
Decatur County Sheriff’s Department responded to a call that a blue truck had
run into a sign at a St. Paul gas station. When Officer Richards arrived at the
scene, he found the blue truck running in the parking lot with Blevins standing
outside the driver’s side door. Blevins had driven the truck to the gas station
and told Officer Richards that she had backed up near the sign but was not
aware that she had hit it. While speaking with Blevins, Officer Richards
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identified signs of intoxication, including that Blevins smelled of alcohol, had
bloodshot and glassy eyes, unsteady balance, and slurred speech. Blevins
indicated that “she had drank a few but couldn’t recall how many.” Appellant’s
Appendix, Volume 2 at 8. Officer Richards subsequently administered a series
of field sobriety tests, all of which Blevins failed. Officer Richards then
transported Blevins to the Decatur County Jail where a chemical test showed
she had an ACE of .159. The State charged Blevins with Count I, operating a
vehicle while intoxicated, a Class C misdemeanor, under cause number 16D01-
1710-F6-1041 (“Cause Number 1041”). The State later amended its charging
information to include Count II, operating a vehicle with an ACE of at least
.15, a Class A misdemeanor; a sentencing enhancement under Indiana Code
section 9-30-5-3(a)(1) for having a prior conviction for operating a vehicle while
intoxicated; and an habitual vehicular substance offender enhancement alleging
that Blevins had accumulated two or more prior unrelated vehicular substance
offense convictions.
[3] While Cause Number 1041 was still pending, at approximately 12:40 a.m. on
November 18, 2018, Officer James Herbert with the Indiana State Police
observed a vehicle in front of him traveling approximately thirty-seven miles per
hour in a twenty-five miles per hour zone. He also observed the vehicle
“weaving in its lane of travel” in a “zigzag pattern from its side of the road into
the [oncoming] lane.” Id., Vol. 3 at 7. Officer Herbert initiated a traffic stop and
discovered that Blevins was the driver. Officer Herbert identified signs of
intoxication, including that Blevins smelled of alcohol, had bloodshot and
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glassy eyes, poor balance and dexterity, and slow and slurred speech. Blevins
admitted to drinking alcohol earlier in the evening. As a result, Officer Herbert
administered a field sobriety test that Blevins failed. Officer Herbert transported
Blevins to the Decatur County Jail where a chemical test showed she had an
ACE of .139. The State charged Blevins with Count I, operating a vehicle while
intoxicated in a manner that endangered a person, a Class A misdemeanor,
under cause number 16D01-1811-CM-1491 (“Cause Number 1491”). The State
later amended its charging information to include Count II, operating a vehicle
with an ACE of at least .08, a Class C misdemeanor, and an habitual vehicular
substance offender enhancement alleging that Blevins had accumulated two or
more prior unrelated vehicular substance offense convictions.
[4] On August 7, 2019, the parties appeared for a pre-trial conference on Cause
Numbers 1041 and 1491, and Blevins moved to “withdraw her previously
entered plea of not guilty in both of those cause numbers and enter a plea of
guilty, not pursuant to a plea agreement, but open as to sentencing.” Transcript,
Volume 2 at 5. In Cause Number 1041, Blevins pleaded guilty to both Count I
and Count II and admitted to having a prior conviction and being an habitual
vehicular substance offender. Likewise, in Cause Number 1491, Blevins
pleaded guilty to both Count I and Count II and admitted to being an habitual
vehicular substance offender. The trial court took the guilty pleas under
advisement.
[5] Blevins was then sentenced for Cause Numbers 1041 and 1491 in a single
hearing on October 29, 2019. As to Cause Number 1041, the trial court
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accepted Blevins’ guilty plea and entered judgment of conviction only for Count
II, operating a vehicle with an ACE of at least .15 as a Level 6 felony due to the
enhancement for a prior conviction, and sentenced her to 360 days to be served
in the DOC. With regard to Cause Number 1491, the trial court again accepted
Blevins’ guilty plea and entered judgment of conviction only for Count I,
operating a vehicle while intoxicated as a Class A misdemeanor, and sentenced
her to serve 360 days with 360 days suspended to probation.1 Those sentences
were ordered to be served consecutively. In addition, the trial court found
Blevins to be an habitual vehicular substance offender and enhanced her
sentences in both Cause Numbers by approximately four years, with the
enhancements to be served concurrently. In total, Blevins was sentenced to
approximately six years to be served in the DOC, with 360 days suspended to
probation. Blevins now appeals. Additional facts will be supplied as necessary.
Discussion and Decision
I. Standard of Review
[6] Under Indiana Appellate Rule 7(B), we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we] find[] that the
sentence is inappropriate in light of the nature of the offense and the character
1
At the sentencing hearing, the trial court stated that Blevins’ sentence in Cause Number 1491 was
suspended to probation for 350 days, as she was required to serve ten actual days as a mandatory minimum
sentence. See Tr., Vol. 2 at 40. However, the trial court’s written Judgment of Conviction and Sentencing
Order reflects that all 360 days are suspended to probation. Neither party raises this apparent conflict,
however, and we therefore will not address it.
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of the offender.” The principal role of Rule 7(B) review “is to leaven the
outliers, rather than to achieve a perceived ‘correct’ sentence.” McCallister v.
State, 91 N.E.3d 554, 566 (Ind. 2018). We do not undertake the Rule 7(B)
analysis 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). We may consider any factors in the record when conducting a
Rule 7(B) review, but sentencing is primarily a discretionary function of the trial
court that we afford considerable deference. Morris v. State, 114 N.E.3d 531, 538
(Ind. Ct. App. 2018), trans. denied. “Such deference should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The
defendant bears the burden of persuading this court on appeal that her sentence
is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
II. Inappropriate Sentence
A. Nature of the Offense
[7] Blevins argues that her sentence is inappropriate in light of the nature of her
offenses because her offenses could not be characterized as “egregious or
severe.” Appellant’s Brief at 11. She maintains that because no one was injured
and she had no intent to injure others, her offenses did not warrant a lengthy
sentence.
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[8] We begin our analysis of the nature of the offense with the advisory sentence,
which is the starting point selected by our legislature as an appropriate sentence
for the crime committed. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App.
2017). Under Cause Number 1041, Blevins was convicted of operating a vehicle
as a Level 6 felony due to a prior conviction for operating a vehicle while
intoxicated. The sentencing range for a Level 6 felony is six months to two and
one-half years with the advisory sentence being one year. Ind. Code § 35-50-2-
7(b). The trial court sentenced Blevins to 360 days executed in the DOC, which
is less than the maximum sentence allowed and slightly less than the advisory
sentence. Under Cause Number 1491, Blevins was convicted of operating a
vehicle while intoxicated as a Class A misdemeanor. A person convicted of a
Class A misdemeanor shall be imprisoned for not more than one year. Ind.
Code § 35-50-3-2. Blevins was sentenced to just shy of one year. Under both
Cause Numbers, Blevins’ sentences were enhanced by four years due to her
habitual vehicular substance offender status. The sentencing range for a person
found to be an habitual vehicular substance offender is at least one year but not
more than eight years of imprisonment. Ind. Code § 9-30-15.5-2(d). Here, the
four-year enhancements were well below the maximum time permitted under
the statute. Thus, Blevins’ total sentence was not as lengthy as it could have
been.
[9] The nature of the offense is also found in the details and circumstances
surrounding the offense and the defendant’s participation therein. Perry v. State,
78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Blevins was charged with operating a
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vehicle while intoxicated twice in slightly over one year. In the 2017 incident,
Blevins damaged a sign on gas station property. In the 2018 incident, Blevins
drove over the speed limit and in an erratic manner. Moreover, in Cause
Number 1401, Blevins’ ACE was .159 and in Cause Number 1491 her ACE
was .139 – both well above the legal limit of .08 in Indiana. Although
fortunately, Blevins’ actions did not injure anyone, she put the safety of herself
and others at risk by operating a vehicle on the road while intoxicated on two
different occasions. Blevins has failed to demonstrate that the nature of her
offenses renders her sentence inappropriate.
B. Character of the Offender
[10] Blevins next contends that her sentence is inappropriate with regard to her
character. “A defendant’s life and conduct are illustrative of his or her
character.” Morris, 114 N.E.3d at 539. One relevant factor in assessing
character on appellate review is the defendant’s criminal history. Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. The significance of a
criminal history “varies based on the gravity, nature, and number of prior
offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d 867,
874 (Ind. Ct. App. 2007). Blevins’ criminal history is comprised of six prior
misdemeanors, including two previous offenses of operating a vehicle while
intoxicated, and one prior felony. After Blevins was charged and released in
Cause Number 1041, she was arrested approximately a week later in an
unrelated matter in Shelby County. In the Shelby County case, Blevins was
charged with interfering with reporting a crime after she attempted to stop her
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mother from calling the police. At the time, Blevins was highly intoxicated,
registering .194 in a portable breath test. See Tr., Vol. 2 at 28. Blevins was
placed on probation for the Shelby County incident and ultimately violated that
probation by committing the 2018 crime charged in Cause Number 1491.
Therefore, she committed the 2018 crime while being on both pre-trial release
and probation.
[11] Blevins points to evidence offered at the sentencing hearing demonstrating her
good character. Blevins notes that she is the sole caretaker for her eighty-three-
year-old mother and that her incarceration will be a great hardship on her
mother. Although Blevins’ incarceration will undoubtedly have an impact on
her mother, who testified she relies on Blevins for “everything” now that her
husband and son have passed, tr., vol. 2 at 33, every family member suffers
some form of hardship when a family member is incarcerated, see Moyer v. State,
83 N.E.3d 136, 143 (Ind. Ct. App. 2017) (noting that “any incarceration is
likely to produce some hardship for the family”), trans. denied. The State argues,
and we agree, that if her mother’s wellbeing were a true consideration for
Blevins, she would not have continued to commit crimes that resulted in her
being in this position. See Brief of Appellee at 9. Blevins also points to the facts
that she has had significant losses, such as the death of her father, that
contributed to her use of alcohol; that she accepted responsibility for her
actions; and that she was remorseful for her conduct. But none of her
contentions are so compelling that they would suggest her character is
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consistently positive and should overcome her criminal history and her current
actions. See Stephenson, 29 N.E.3d at 122.
[12] Simply put, Blevins behavior contradicts her assertion that she is remorseful
and serious about reformation. She appears primarily remorseful that she got
caught. And there is no evidence in the record of her completing – or even
attempting – any substance abuse treatment that would help her address her
alcohol abuse problem. Her actions show that even pending charges have not
deterred her from committing additional offenses and illustrate her conscious
disregard for the rule of law. See Rutherford, 866 N.E.2d at 874. Accordingly,
Blevins has failed to persuade us that her character renders her sentence
inappropriate.
[13] In sum, Blevins has failed to meet her burden of persuading us that her six-year
sentence for multiple counts of operating a vehicle while intoxicated and her
status as an habitual vehicular substance offender is inappropriate in light of her
offenses and character.
Conclusion
[14] After reviewing the record and giving due consideration to the trial court’s
sentencing decision, we conclude Blevins’ six-year sentence is not inappropriate
in light of her offenses and her character. Accordingly, we affirm.
[15] Affirmed.
May, J., and Vaidik, J., concur.
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