HOLE v. STATE (2025)

MEMORANDUM DECISION

[1] Bradley A. Hole appeals his sentence for operating a motor vehicle after forfeiture of license for life as a level 5 felony. We affirm.

Facts and Procedural History

[2] On June 25, 2024, the State charged Hole with operating a motor vehicle after forfeiture of license for life as a level 5 felony and alleged that the offense occurred on or about June 20, 2024. On October 11, 2024, Hole's counsel filed a Notice of Intent to Plead Guilty Without Agreement. On October 16, 2024, the court held a hearing on Hole's motion.¹

[3] On December 13, 2024, the court held a sentencing hearing. Hole's counsel presented the testimony of Wayne County Probation Officer Amanda Kopf who indicated that she had supervised Hole since July of the previous year and had filed a revocation in that case due to the present offense. She testified that she referred him to services as part of his probation including outpatient treatment through Centerstone, he had a stay at an inpatient facility “a few months in,” and then “he went back to outpatient services.” Transcript Volume II at 7. She indicated that he completed the portion of “Living in Balance” and was “working through the relapse prevention curriculum,” which met weekly for twelve weeks. Id.

[4] According to Probation Officer Kopf's testimony, she received a letter stating that Hole was a “very strong peer leader in his group,” became a mentor for some who were in the inpatient facility, and had a “very positive attitude.” Id. at 8. When asked about the reports from service providers, she answered:

[Hole] has maintained consistent attendance and participation. I don't believe that [he] has been perfect by any means, but he has really – is quick to acknowledge when things weren't going right, and kind of get back on track. But he's just maintained that consistent desire to stay in services and continue to do better.

Id. She indicated that she had “never had any problems with him reporting to probation.” Id. at 9. She stated that Hole “has been employed with Envirotech for several months now, which I believe is a really long period of time for [him] to maintain steady employment.” Id. She also indicated that she thought he was a good candidate for continued probation.

[5] Tamara Albertson, Hole's wife, testified that she resides with Hole and her two children and that she was agreeable to Hole being placed on home detention. She also stated that she was willing to help with transportation.

[6] Hole acknowledged that his “record is bad” and he was “always getting in trouble and stuff.” Id. at 22. He stated that working and doing “normal things” made him love himself and kept him busy and he was ready to “grow up.” Id. at 22-23. He stated that he paid the rent and bills and attended his classes.

[7] At the sentencing hearing, the trial court noted the testimony of Probation Officer Kopf but also stated: “I think again, what's hard to ignore, and the court cannot ignore, is the commission of a felony offense while on probation for that felony, and it's the very same felony. And that's hard to ignore.” Id. at 30. The court acknowledged Hole's progress and stated:

As a person, I want to root for Mr. Hole, and I want to recognize that progress, even if the chunk has been more recent, but I cannot ignore all the other aggravation that's brought to the table. And those are brought to the table by Mr. Hole's actions. When Mr. Hole chose to drive, knowing on various multiple occasions he cannot do that. He has suffered consequences resulted (sic). At what point does no become no? You cannot do that and continue to do it. And so, at the time he did that, sounds like he had a relationship with his significant other who is here testifying today. Some relationship with those children – all those things were in place when he chose to take that action. So, all of that being said, Court finds that a commitment to the Department of Correction in this cause is difficult, but appropriate.

Id. at 31.

[8] In its sentencing order, the court found the following aggravating circumstances: Hole's significant history of criminal behavior, which included ten felony convictions; he violated the conditions of pre-trial release by committing a criminal offense while on bond; and he was on probation for a felony offense at the time he committed the present offense. The court found Hole's acceptance of responsibility by pleading guilty and that he had taken some positive steps in an effort to change his behavior as mitigating circumstances and sentenced Hole to one year and nine months.

Discussion

[9] Hole argues that his sentence is inappropriate because the nature of his offense is not severe and he demonstrated significant rehabilitative efforts despite his criminal history. Ind. Appellate Rule 7(B) 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.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall be imprisoned for a fixed term of between one and six years, with the advisory sentence being three years.

[10] Our review of the nature of the offense reveals that Hole operated a motor vehicle after forfeiture of license for life. Our review of the character of the offender reveals that Hole pled guilty as charged and has a lengthy criminal history. The presentence investigation report (“PSI”) reveals that Hole, who was born in 1983, was convicted of an “Operator Never Licensed” as a class C misdemeanor in 1999; driving while suspended as a class A misdemeanor and minor consuming alcohol as a class C misdemeanor in 2001; driving while suspended as a class A misdemeanor, theft as a class D felony and public intoxication as a class B misdemeanor in 2022; operating a vehicle with a BAC of .08 or more as a class C misdemeanor and conversion, public intoxication, and driving while suspended as class A misdemeanors in 2003; driving while suspended and operating a vehicle while intoxicated endangering another person as class A misdemeanors in 2004; two counts of burglary as class C felonies and robbery as a class B felony in 2006; operating a vehicle as an habitual traffic violator as a class D felony in 2012; operating a vehicle as an habitual traffic violator as a class D felony and resisting law enforcement as a class A misdemeanor in 2013; resisting law enforcement as a level 6 felony and two counts of operating a vehicle after forfeiture of license for life as level 5 felonies in 2016; and operating a motor vehicle after forfeiture of license for life as a level 5 felony and possession of a narcotic drug as a level 6 felony in 2023. Appellant's Appendix Volume II at 18. The PSI indicates that Hole had “multiple petitions to revoke community supervision (including a petition which is currently pending in [his] most recent prior felony case).” Id. at 24. The PSI indicates that Hole's overall risk assessment score using the Indiana risk assessment tool places him in the moderate risk to reoffend category.

[11] After due consideration, we conclude that Hole has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.²

[12] For the foregoing reasons, we affirm Hole's sentence.

[13] Affirmed.

FOOTNOTES

1.   In his notice of appeal, Hole did not request a transcript of the October 16, 2024 hearing, and the record does not contain a copy of the transcript.

2.   To the extent Hole argues the trial court abused its discretion in sentencing him, we need not address this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant's guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh'g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied. Even if we were to address Hole's abuse of discretion argument, we would not find it persuasive in light of the record.

Brown, Judge.

Bailey, J., and Weissmann, J., concur.