ELLER v. STATE (2024)

MEMORANDUM DECISION

[1] Brandon Eller appeals his sentence and the trial court's imposition of fees and costs following his conviction for Level 4 felony causing death when operating a motor vehicle while intoxicated. Eller presents two issues for our review:

1. Whether the trial court erred when it failed to make an indigency determination before imposing fees and costs.

2. Whether the trial court abused its discretion when it sentenced him.

[2] We affirm.

Facts and Procedural History

[3] On June 28, 2021, Eller was driving southbound on State Road 19 in Miami County when he crossed the center line and struck, head-on, a southbound SUV driven by Steven Armfield. When emergency personnel arrived at the scene, both Armfield and his passenger, Carolann Pulley, his girlfriend, were unresponsive and rushed to the hospital. Eller was able to talk to responding law enforcement officers, and he admitted that he had smoked marijuana and consumed alcohol earlier that day. Subsequent testing showed that Eller's blood alcohol level was .064, and he tested positive for marijuana.

[4] The next day, Pulley died from the injuries she sustained in the crash. Armfield sustained a traumatic brain injury, a broken right arm, broken ribs, a broken back, a “crushed right hip,” and a broken left leg as a result of the crash. Appellant's App. Vol. 2, p. 146. Armfield, who was a very active sixty-nine-year-old at the time of the accident, became so disabled that he “was unable to walk or care for himself following the crash.” Id. Armfield had to live in a nursing home, and he had to wear diapers. Tr. p. 40.

[5] The State charged Eller with Level 4 felony causing death when operating a motor vehicle while intoxicated (Count 1) and Level 4 felony causing death when operating a vehicle with a schedule I or II controlled substance in the blood (Count 2). In July 2023, Eller pleaded guilty to Count 1. Per his plea agreement, Eller's sentence was open to the trial court's discretion but would be capped at six years. In addition, the State agreed to dismiss Count 2.

[6] Armfield died on September 1, just before Eller's sentencing hearing. In an addendum to the presentence investigation report, the State submitted evidence that, according to Armfield's legal guardian, Armfield “was a very independent person who was quite active” before the accident. Appellant's App. Vol. 2, p. 146. But Armfield was rendered “unable to care for himself” and forced to live in a nursing home as a result of the accident. Id. At the sentencing hearing, Pulley's daughter Janis Cornett testified that Armfield “figured out last summer that he wasn't going to get any better. And I think that's where he started going down hill.” Tr. p. 40.

[7] In imposing the advisory sentence, the trial court identified the following aggravating circumstances: Pulley's age (over sixty-five); Eller's actions “caused the loss of two lives”; and Eller's “prior involvement with the criminal system.” Appellant's App. Vol. 2, p. 18. The trial court identified the following mitigating circumstances: his plea agreement; and he is unlikely to reoffend. The court found that the aggravators outweighed the mitigators and imposed the advisory six-year sentence with two years suspended to probation. In addition, the trial court ordered Eller to pay a probation administrative fee of $100, a $100 initial fee, and $389.50 in court costs. This appeal ensued.

Discussion and Decision

Issue One: Indigency Determination

[8] Eller argues that the trial court erred when it did not make an indigency determination prior to imposing the costs and fees at sentencing. But, as the State correctly points out, the trial court ordered that Eller would pay the costs and fees “while on probation.” Appellant's App. Vol. 2, p. 18. Thus, the time to make an indigency determination will be when the executed portion of his sentence is complete. See Ind. Code § 35-38-1-18(b). Eller has not shown error on this issue.

Issue Two: Sentence

[9] Eller next contends that the trial court abused its discretion when it identified Armfield's death as an aggravating factor. Eller argues that there is no evidence that Armfield died as a result of the injuries he had sustained in the accident more than two years earlier. We do not agree.

[10] As our Supreme Court has explained,

[s]entencing is left to the discretion of the trial court, and abuse of that discretion arises by the court: (1) “failing to enter a sentencing statement at all”; (2) entering a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are “improper as a matter of law.”

Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)), cert. denied.

[11] Again, the State presented evidence that Armfield sustained a traumatic brain injury, a broken right arm, broken ribs, a broken back, a “crushed right hip,” and a broken left leg as a result of the crash. Appellant's App. Vol. 2, p. 146. In addition, the evidence shows that Armfield was a very active sixty-nine-year-old at the time of the accident and became so disabled that he “was unable to walk or care for himself following the crash.” Id. He was confined to a nursing home, and he had to wear diapers. Tr. p. 40. At sentencing, Pulley's daughter testified that, during the summer months before his death on September 1, 2023, Armfield “figured out ․ that he wasn't going to get any better” and “started going down hill.” Id. That evidence supports a reasonable inference that Armfield died as a result of the injuries he sustained in the accident on June 28, 2021.

[12] In any event, even when an abuse of discretion occurs, “[w]e will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators.” Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023). Any error here was harmless. We are confident that, given Pulley's death and the life-altering injuries Armfield sustained, the trial court would have imposed no less than the advisory six-year sentence even without considering Armfield's death.

[13] For all these reasons, we affirm Eller's sentence.

[14] Affirmed.

Mathias, Judge.

Altice, C.J., and Bailey, J., concur.