MARTIN v. STATE (2024)

MEMORANDUM DECISION

[1] The Wayne Superior Court sentenced Phillip D. Martin to three years executed after he was convicted of Level 5 felony operating a vehicle after forfeiture of license for life. Martin appeals, arguing that his placement in the Department of Correction is inappropriate in light of the nature of his offense and his character.

[2] We affirm.

Facts and Procedural History

[3] On October 11, 2023, law enforcement officers initiated a traffic stop of a vehicle driven by Martin after observing that Martin was not wearing his seatbelt. During the stop, the officers learned that Martin was a habitual traffic violator with a lifetime suspension of his driver's license. Martin admitted that he knew he should not be operating a vehicle. Tr. p. 18.

[4] The State charged Martin with Level 5 felony operating a vehicle after forfeiture of license for life. On March 27, 2024, Martin pleaded guilty to that charge. On the date he committed the offense, Martin was serving consecutive sentences on home detention for convictions from Henry County and Hendricks County for the same offense.

[5] During the sentencing hearing, sixty-one-year-old Martin testified that he was driving to and from work when he was stopped, and he had to drive to support his family. Tr. p. 30. Martin was a self-employed construction worker. He and his wife both have health issues, and his wife has not been able to pay the household bills because Martin has been incarcerated since he committed this offense. Martin's children are adults, with the youngest being thirty years old, but Martin still has a child support arrearage.

[6] Martin's criminal history is significant. Most recently, on June 8, 2023, the Henry Circuit Court sentenced Martin to three years for operating a vehicle after lifetime forfeiture of driving privileges. The court ordered him to serve his sentence in community corrections. On August 14, 2023, the Hendricks Superior Court sentenced Martin to three years for operating a vehicle after lifetime forfeiture of driving privileges, which the court also ordered him to serve in community corrections. Martin violated his community corrections placements in both of those cases when he committed the same offense in this case.

[7] The trial court made the following comments concerning Martin's criminal history, and particularly, his operating offenses:

And then as I understand the information in the pre-sentence report, you've been arrested twenty-four (24) times since [1980]; fourteen (14) misdemeanor convictions, twelve (12) felony convictions. That's a lot to get past. I mean, that is just not good for you․ The courts have tried ․ everything that we have at our disposal, as far as trying to get you to understand, stop driving. There's been jail. There's been prison. There's been jail time suspended. There's been prison time suspended. There's been probation. There's been house arrest, electronic monitoring, community correction efforts; and none of them have worked. None of it․ Your probation's been revoked multiple times; community correction supervision's been revoked multiple times.

Tr. p. 50. The instant offense is Martin's eighth felony conviction for operating a vehicle after lifetime forfeiture of driving privileges.

[8] The trial court weighed Martin's criminal history against his decision to plead guilty, that Martin's incarceration “will have a rough impact on his wife's ability to maintain a household[,]” and that Martin “presents as an amicable, non-violent person.” Appellant's App. p. 61. The court specifically found that Martin would not likely “comply with the conditions that accompany the privilege of serving any portion of his sentence under probationary supervision or in a program of community-based correction.” Id. The court then imposed the advisory sentence of three years executed in the Department of Correction to be served consecutively to his sentences imposed in Hendricks and Henry Counties.

[9] Martin now appeals.

Discussion and Decision

[10] Martin claims that his three-year executed sentence is inappropriate. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B), however, is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam).

[11] When conducting this review, we generally defer to the sentence imposed by the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Our role is to “leaven the outliers,” not to achieve what may be perceived as the “correct” result. Id. Thus, deference to the trial court's sentence will prevail unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense—such as showing restraint or a lack of brutality—and the defendant's character—such as showing substantial virtuous traits or persistent examples of positive attributes. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[12] The advisory sentence for a Level 5 felony is three years. See Ind. Code § 35-50-2-6(b). Martin claims that his advisory sentence is inappropriate because he was ordered to serve the sentence executed in the Department of Correction. His requested relief is to serve his advisory sentence on home detention and probation. Appellant's Br. at 19. Our court is “unlikely to consider an advisory sentence inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. And it is “ ‘quite difficult’ for a defendant to prevail on a claim that his placement is inappropriate.” Moon v. State, 110 N.E.3d 1156, 1162 (Ind. Ct. App. 2018) (quoting Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007)).

[13] Martin's repeated disregard for the law reflects poorly both on the nature of his offense and his character. Martin drove a vehicle knowing that his driving privileges were forfeited for life. Of course, Martin is correct that his offense was not violent and did not cause harm to person or property. However, the offense of operating a vehicle after a lifetime forfeiture of driving privileges is generally a non-violent, victimless crime. See I.C. § 9-30-10-17(a) (establishing the elements of the offense). Significantly, this was Martin's eighth conviction for this same offense.

[14] Martin's disregard for the law and inability to lead a law-abiding life is reflected in his criminal history, numerous probation violations, and the fact that he was sentenced to serve his sentences in community corrections for his Henry County and Hendricks County convictions and violated those placements by committing the instant offense. Martin has not taken advantage of opportunities he has been given to rehabilitate himself. Moreover, he has never applied for special driving privileges, which might have afforded him a legal avenue to be able to drive to and from work. The trial court thoughtfully considered these facts and weighed them against the evidence Martin presented of his positive character traits. Ultimately, the court concluded that Martin would not likely “comply with the conditions that accompany the privilege of serving any portion of his sentence under probationary supervision or in a program of community-based correction.” Appellant's App. p. 61. We agree.

[15] Under these facts and circumstances, Martin has not met his heavy burden of persuading us that his placement in the Department of Correction is inappropriate.

Conclusion

[16] Martin has not persuaded us that his three-year executed sentence is inappropriate in light of the nature of the offense and his character.

[17] Affirmed.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.