MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 27 2017, 9:50 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marilyn Viers, January 27, 2017
Appellant-Defendant, Court of Appeals Case No.
20A04-1609-CR-2070
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D04-1512-F6-1217
Crone, Judge.
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Case Summary
[1] Marilyn Viers appeals the sentence imposed by the trial court following her
guilty plea to level 6 felony operating a vehicle while intoxicated with a prior
conviction. Her sole contention on appeal is that her two-year sentence, one
year to be served on home detention and one year suspended to probation, is
inappropriate in light of the nature of her offense and her character.
Concluding that she has not met her burden to demonstrate that her sentence is
inappropriate, we affirm.
Facts and Procedural History
[2] On December 22, 2015, Viers consumed beer at a friend’s house. She then
returned to her home before deciding to leave again to go shopping. During
that shopping trip, she was involved in a vehicular collision in a parking lot.
[3] The State charged Viers with level 6 felony operating a vehicle while
intoxicated with a prior conviction, class A misdemeanor operating a vehicle
while intoxicated endangering a person, and class D misdemeanor operating a
vehicle with a BAC of .08 or more. Viers pled guilty, without a plea agreement,
to level 6 felony operating a vehicle while intoxicated with a prior conviction.
The trial court imposed a two-year sentence, with one year to be served on
home detention, and the other year suspended to probation. This appeal
ensued.
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Discussion and Decision
[4] Viers claims that her sentence is inappropriate and invites this Court to revise
her sentence pursuant to Indiana Appellate Rule 7(B) which provides that 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 of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. In reviewing a sentence, we consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
whether a portion of the sentence is ordered suspended “or otherwise crafted
using any of the variety of sentencing tools available to the trial judge.”
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
[5] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
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for a level 6 felony is between six months and two and one-half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7(b). The trial court here
imposed a two-year aggregate sentence, with one year to be served on home
detention and the second year suspended to probation. In challenging the
appropriateness of her two-year sentence, Viers emphasizes that she was
involved in a minor collision, that she tested only slightly above the legal
alcohol limit, and that “she did not hurt anyone, nor intend to hurt anyone.”
Appellant’s Br. at 8. Although we agree with Viers that her offense was by no
means the most egregious we could imagine, we will not downplay the
seriousness and dangerousness of her behavior, and we are not persuaded by
her self-proclaimed lack of intent to cause damage to others. She consumed
alcohol and admittedly drove multiple times that afternoon before eventually
being caught for such behavior due to the collision. The nature of her offense
does not convince us that a two-year sentence served first on home detention
and then suspended to probation is inappropriate.
[6] Viers does not fare much better when we consider her character. Regarding the
character of the offender, one relevant consideration is the defendant’s criminal
history. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Viers
has a criminal history consisting of misdemeanor convictions for reckless
driving, carrying a handgun without a license, and two prior convictions for
operating a vehicle while intoxicated. She also has a prior felony operating a
vehicle while intoxicated conviction for which she was on probation when she
committed the instant offense. Viers has clearly demonstrated a pattern of
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disregarding the law by repeatedly committing the offense of operating a vehicle
while intoxicated, and she has been unwilling or unable to reform her behavior
despite the trial court’s previous grants of leniency. We commend Viers for the
recent strides toward treatment and rehabilitation that the record indicates that
she has made, but we remain unconvinced that the enhanced sentence imposed
by the trial court was inappropriate based upon her character. 1 Viers has not
met her burden to demonstrate that her sentence is inappropriate in light of the
nature of the offense or her character, and therefore we affirm.
[7] Affirmed.
Riley, J., and Altice, J., concur.
1
As part of her character argument, Viers requests that we revise her sentence to a fully suspended sentence
because she “is unable to afford the home detention fees” and “home detention prevents her from earning
extra income.” Appellant’s Br. at 7-8. We note that the record indicates that the trial court fully considered
Viers’s ability to pay the costs associated with her crime and her sentence. Indeed, after finding Viers to be
indigent, the trial court excused Viers from paying a public defender reimbursement fee, suspended a fine,
and appointed pauper appellate counsel. Moreover, the court scheduled a financial compliance hearing for
March 2017 to address any additional matters. We decline Viers’s invitation to revise her sentence on this
basis.
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Marilyn Viers v. State of Indiana (mem. dec.)
Combined Opinion