DUNN v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Charles W. Dunn pleaded guilty to operating a motor vehicle while privileges are forfeited for life, as a Level 5 felony, and unlawful possession of a syringe, a Level 6 felony, and the trial court imposed an aggregate sentence of three years executed. On appeal, Dunn argues that his sentence is inappropriate in light of the nature of the offenses and his character. We disagree and therefore affirm.

Facts and Procedural History

[2] On September 29, 2024, an Elkhart police officer on patrol saw a pickup truck with an expired license plate.¹ The officer initiated a traffic stop and determined that Dunn was the truck's sole occupant. Dunn admitted that his driver's license was suspended and that he was “not supposed to be driving.” Appellant's App. Vol. 2 at 17. The officer confirmed that Dunn's driving privileges had been forfeited for life. Dunn was arrested, and the truck was searched. In a container “beside the front driver seat[,]” an officer found a hypodermic syringe containing a liquid that tested positive for methamphetamine. Id.

[3] On October 1, the State charged Dunn with operating a motor vehicle while privileges are forfeited for life, as a Level 5 felony, and unlawful possession of a syringe, a Level 6 felony. At his initial hearing on October 7, Dunn pleaded not guilty. On March 12, 2025, Dunn filed a motion to withdraw his not-guilty plea and enter a guilty plea. Before the trial court could rule on that motion, Dunn filed a motion for early trial and a motion to suppress. On April 25, the State filed a motion for leave to amend the charging information to add a habitual offender allegation. On May 30, after a hearing, the trial court denied Dunn's motion to suppress. Thereafter, Dunn filed another motion to withdraw his not-guilty plea and enter a guilty plea. The parties executed a plea agreement, in which Dunn agreed to plead guilty to the two felonies and the State agreed to dismiss the habitual offender allegation. Sentencing was left to the court's discretion.

[4] At a hearing on June 25, the trial court took the plea under advisement and set a sentencing hearing for August 6. At that hearing, Dunn stated that his request for the suppression hearing was “dumb[,]” apologized to the court, and argued that time served was “a sufficient sanction” for his charges. Tr. Vol. 2 at 11. The State agreed. The court accepted Dunn's plea but was “not in agreement for a time served sentence.” Id. at 12. The court noted that “the prior convictions in the presentence investigation report indicate multiple operating while intoxicated offenses, multiple habitual traffic violator offenses; [Dunn has] been to the Department of Correction[ ] a few times already, and yet, we continue to see further contacts with the criminal justice system.” Id.

[5] The court then stated,

The defendant's prior criminal history is an aggravating factor. The fact that other forms of sanctions have proven to be unsuccessful in keeping Mr. Dunn from engaging in criminal activity is another aggravating factor. Mr. Dunn has not taken advantage of alternative sanctions offered to him in the past, however, in light of that and the substantial benefit he is getting from the plea agreement, his comments and statements today coupled with – albeit, late, but acceptance of responsibility, is a mitigating circumstance.

While any one of the aggravating circumstances far outweighs the mitigating circumstances, in light of the particular facts and circumstances, and I guess Mr. Dunn, one of the benefits to proceeding with a suppression hearing is that the Court learns of many more facts and circumstances of a situation that I would not normally have before that. So, I also take the facts and circumstances into consideration. I think an advisory sentence given the prior criminal history is more than appropriate. So, on Count I, I will sentence to three (3) years Indiana Department of Correction[ ]. That is the advisory sentence for a Level 5 felony. Quite frankly, I don't need to do aggravating and mitigating circumstances when I'm imposing an advisory, but Mr. Dunn, I wanted you to know that most certainly, the Court was very justified in giving a much more enhanced sentence in light of your history; but given some of the facts and circumstances, I think an advisory is appropriate and that's what I'll do.

․ On Count II, one (1) year Indiana Department of Correction[ ]; that's going to run concurrent to Count I. I will give you credit for 311 days spent in custody, plus good time credit.

Id. at 12-13. Dunn now appeals his sentence.

Discussion and Decision

[6] Dunn argues that his “fully executed advisory sentence is inappropriate” and asks us to revise it pursuant to Indiana Appellate Rule 7(B). Appellant's Br. at 11. Rule 7(B) provides that this Court “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Our “role under Rule 7(B) is to ‘leaven the outliers,’ and we reserve our 7(B) authority for exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018) (per curiam) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). This is far from an exceptional case.

[7] Indiana's flexible sentencing scheme allows trial courts to tailor a sentence appropriate to the circumstances presented, and “the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. 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 factors that come to light in a given case.” Id. at 1224. “[A]ppellate review should focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual counts.” Id. at 1225. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).

[8] In determining whether a sentence is inappropriate, the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). As the trial court noted, the advisory sentence for a Level 5 felony is three years. Ind. Code § 35-50-2-6(b). The minimum sentence is one year, and the maximum sentence is six years. Id. The advisory sentence for a Level 6 felony is one year. I.C. § 35-50-2-7(b). The minimum sentence is six months, and the maximum sentence is two and a half years. Id. Thus, Dunn received concurrent advisory sentences for his crimes. We are “unlikely to consider an advisory sentence inappropriate[,]” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied, and “a defendant bears a particularly heavy burden in persuading us that his sentence is inappropriate when the trial court imposes the advisory sentence[,]” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[9] “Our analysis of the ‘nature of the offense’ requires us to look at the nature, extent, heinousness, and brutality of the offense.” Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). Dunn argues that his offenses were not egregious, noting that “[n]o person was harmed” and “[n]o property was damaged.” Appellant's Br. at 9. Nevertheless, we cannot overlook the fact that this was not Dunn's first conviction for operating a vehicle with a suspended license. Dunn's presentence investigation report indicates that he was convicted of Class D felony operating as a habitual traffic violator and Class C felony operating while suspended for life in October 2010 and of Level 5 felony operating while suspended for life in April 2023, less than a year and a half before he committed the instant offenses. In other words, this was not simply an isolated incident of bad judgment on Dunn's part.²

[10] Moreover, Dunn's criminal history (which also includes multiple convictions for operating while intoxicated) and his failure to respond positively to prior judicial leniency in the form of probation and community service do not reflect well on his character. Dunn emphasizes that he “accepted responsibility and pled guilty to the offense[s]” and “acknowledged to the trial court that his pursuit of the suppression issue was ‘dumb’[.]” Id. at 10. But Dunn's intransigence unnecessarily delayed the proceedings and prompted the State to file a habitual offender allegation, and Dunn received a substantial benefit when the State agreed to dismiss the allegation in exchange for his plea. Dunn has pointed us to no substantial virtuous traits or persistent examples of good character, and we conclude that he has failed to carry the particularly heavy burden of persuading us that his advisory sentence is inappropriate in light of the nature of the offenses and his character. Therefore, we affirm.

[11] Affirmed.

FOOTNOTES

1.   In reciting the relevant facts, both parties rely on the officer's affidavit in support of warrantless arrest. We do likewise.

2.   Dunn minimizes his current driving offense as merely “technical” in nature. Appellant's Br. at 11. We fail to see how operating a vehicle under a lifetime suspension—which requires multiple convictions to impose (see I.C. § 9-30-10-5(b))—can be classified as a “technical” offense.

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.