David W. Kerstiens, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] David W. Kerstiens appeals his sentence for operating a vehicle as an habitual traffic violator as a level 6 felony, operating a vehicle while intoxicated endangering a person as a class A misdemeanor, and being an habitual vehicular substance offender. We affirm.

Facts and Procedural History

[2] On July 10, 2024, Kerstiens operated a motor vehicle when his driving privileges were validly suspended and operated a vehicle while intoxicated in a manner that endangered a person. Specifically, Kerstiens operated his moped, fell off his moped at an intersection, and sustained a bleeding head injury.¹ He told the responding officer that he drank eight or nine beers and was on his way back from the liquor store. The officer observed an eighteen-pack of beer on the moped. Kerstiens advised the officer that he thought the intersection was clear, began turning left, realized there was another vehicle in the intersection, stopped his moped, lost his balance, and fell. At that time, Kerstiens had accumulated two prior unrelated vehicular substance convictions.

[3] On July 29, 2024, the State charged Kerstiens under cause number 19D01-2407-F6-868 (“Cause No. 868”) with: Count I, operating a vehicle as an habitual traffic violator as a level 6 felony; Count II, operating a vehicle while intoxicated as a class C misdemeanor; Count III, operating a vehicle while intoxicated endangering a person as a class A misdemeanor; and Count IV, operating a vehicle with an ACE of .15 or more as a class A misdemeanor. That same day, the State also filed a Notice of Intent to Seek Habitual Vehicular Substance Offender Status.

[4] On October 14, 2025, Kerstiens and the State filed a plea agreement in which Kerstiens agreed to plead guilty to Counts I and III and admit to being an habitual vehicular substance offender. The agreement provided that the sentences for Counts I and III would be served concurrently and the sentence would be left to the discretion of the court. It further provided that the State would dismiss the remaining counts in Cause No. 868 as well as cause number 19D01-2407-F6-878 (“Cause No. 878”) “in its entirety.” Appellant's Appendix Volume II at 144.

[5] On January 6, 2026, the court held a hearing at which Kerstiens pled guilty. The court accepted the plea agreement and entered judgments of conviction. At the sentencing hearing, Dubois County Probation Officer John Fromme testified that he prepared the presentence investigation report (“PSI”) and recommended that Kerstiens be sentenced to concurrent sentences of one year on Counts I and III and that the habitual vehicular substance offender status result in an enhancement of two years. When asked by the prosecutor how he arrived at this recommendation, Officer Fromme answered:

Through his criminal history, multiple driving offenses, his attitude in our interview. I can't believe it was just alcohol. The fact that he put himself in danger multiple different times and the public in danger through his drinking and driving. He felt like he didn't have a problem. He refused Drug Court. He didn't comply with the requirements.

And work release would not be an option due to his requirements with his disability and lack of transportation. He does not feel he needs treatment and denies the support systems.

Transcript Volume II at 14. He indicated that Kerstiens had mentioned that his brother's death was a “trigger.” Id. at 18.

[6] Kerstiens testified that he had arthritis in his back, “ended up breaking” his ankle, and was walking with a cane. Id. at 20. He indicated he had not had any alcohol since September 2024, that his mother's death was hard on him, and that he was not close to his brother and his death affected him “[s]omewhat.” Id. at 22. He also stated that his divorce was a “trigger.” Id. at 23. When asked if he would follow the court's recommendations to participate in a substance abuse evaluation and follow recommendations which could involve AA classes, Kerstiens replied that he would go “but there's something about them AA. I went there before. Why does people want to listen to everybody's problems? ․ I'll go, I mean, that's fine with me, but I just, I'll go.” Id. at 22. Upon questioning by the court, Kerstiens indicated that his mother died fifteen years earlier and his divorce occurred sixteen years earlier.

[7] The prosecutor requested a sentence of two years for Count I and an additional six years for Kerstiens's status as an habitual vehicular substance offender for an aggregate sentence of eight years. Defense counsel asked the court “to sentence [Kerstiens] to the SCRAM device.” Id. at 28.

[8] The court found that Kerstiens had “an extensive history of putting the community at risk,” stated that he had programs available to him through the criminal justice system “regarding these triggers that occurred 15 and 16 years ago,” and described his “attitude” as “cavalier at best.” Id. at 32-33. It found Kerstiens's criminal history as an aggravator and that imprisonment “could be a hardship” as a mitigator. Id. at 33. The court sentenced Kerstiens to two years for Count I, enhanced the sentence by six years due to his status as an habitual vehicular substance offender, and suspended four years to supervised probation. It also sentenced Kerstiens to a concurrent sentence of one year for Count III. On March 4, 2026, Kerstiens filed a motion to correct error, which the trial court later denied.

Discussion

[9] Kerstiens asserts that his sentence is inappropriate. He argues that the nature of the offense reveals that, although he was injured, there were no reports of anyone else being injured. With respect to his character, he points to his receipt of Social Security Disability due to issues with his back, leg, and ankle. He indicates that, despite his criminal history, he has been “largely compliant with his sentences in the past.” Appellant's Brief at 13. He also argues that he had abstained from alcohol and illegal substances for one and one-half years by the time he met with his probation officer.

[10] 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).

[11] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall be imprisoned for a fixed term of between six months and two and one-half years with the advisory sentence being one year. Ind. Code § 9-30-15.5-2 provides that the court shall sentence a person found to be an habitual vehicular substance offender to an additional fixed term of at least one year but not more than eight years of imprisonment, “to be added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.” Ind. Code § 35-50-3-2 provides that a person who commits a class A misdemeanor shall be imprisoned for a fixed term of not more than one year.

[12] Our review of the nature of the offenses reveals that Kerstiens drank eight or nine beers and then operated a motor vehicle while intoxicated in a manner that endangered a person and while his driving privileges were validly suspended. At that time, Kerstiens had accumulated two prior unrelated vehicular substance convictions.

[13] Our review of the character of the offender reveals that Kerstiens pled guilty and the State agreed to dismiss the remaining counts in Cause No. 868 as well as Cause No. 878 “in its entirety,” which involved charges of operating a vehicle while intoxicated and operating a vehicle with an ACE of .15 or more as level 6 felonies relating to an alleged offense date of July 26, 2024. Appellant's Appendix Volume II at 144. The PSI indicates that Kerstiens has been arrested on ten separate occasions resulting in multiple convictions and two deferrals. Kerstiens was convicted of driving while intoxicated as a class A misdemeanor in 2001; driving while intoxicated as a class A misdemeanor in 2011; invasion of privacy as a class A misdemeanor in 2015; operating a vehicle with an ACE of .15 or more as a class A misdemeanor in July 2015; operating a vehicle with a BAC of .15% or more as a class A misdemeanor in November 2015; operating a vehicle with an ACE of .15 or more as a level 6 felony in 2018; and operating a vehicle as an habitual traffic violator and operating a vehicle with an ACE of .08 or more with a prior conviction as level 6 felonies in 2021.

[14] The PSI indicates that Kerstiens has a “[s]ignificant history of substance usage mainly alcohol and marijuana” and that he “self-reports abstinence for the past year and a half.” Id. at 150. It also indicates that he reported not being involved in any current substance abuse treatment. He stated that he “does not feel he is in need of any type of treatment for substance use or addictive behavior,” but he “did recognize that his alcohol usage has [led] him to legal and marital problems in his lifetime.” Id. at 156. The PSI indicates that Kerstiens's overall risk assessment score using the Indiana risk assessment tool places him in the moderate risk to reoffend category.

[15] After due consideration, we conclude that Kerstiens has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.

[16] For the foregoing reasons, we affirm Kerstiens's sentence.

[17] Affirmed.

FOOTNOTES

1.   In his brief, Kerstiens cites the probable cause affidavit.

Brown, Judge.

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