Dennis Wireman v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 15 2014, 8:49 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. LEMON GREGORY F. ZOELLER
Knox, Indiana Attorney General of Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DENNIS WIREMAN, )
)
Appellant-Defendant, )
)
vs. ) Cause No. 75A03-1312-CR-504
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable Kim Hall, Judge
Cause Nos. 75C01-1208-FD-183, 75C01-1301-FD-11
August 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Defendant Dennis Wireman was convicted, in two separate cause numbers,
of a total of three counts of Class D felony illegal possession of a controlled substance, Class
D felony illegal possession of a syringe, and Class D felony operating a vehicle while
intoxicated (“OWI”) with a prior conviction. Following a combined sentencing hearing, the
trial court imposed two consecutive thirty-month sentences. Wireman contends that his
aggregate sixty-month sentence is inappropriately harsh. We affirm.
FACTS AND PROCEDURAL HISTORY
Cause Number 75C01-1208-FD-183 (“Cause No. FD-183”)
At approximately 10:00 p.m on August 21, 2012, Knox Police Officer Chris Kisela
and Indiana Department of Natural Resources Conservation Officer Keith Wildeman
responded to a dispatch and encountered Wireman asleep behind the wheel of his vehicle,
which was parked on Main Street in Knox, still running with its headlights on. Officer
Kisela noticed a pill bottle and spoon on the front passenger seat and a syringe in the ashtray
in the center console. Officer Kisela managed to rouse Wireman and observe him outside of
the vehicle. Wireman’s eyes were bloodshot, his speech was slurred, and he “didn’t seem to
be with it or speaking [in a way] that was making any sense[.]” Tr. p. 10. While the pill
bottle on the seat was for a drug prescribed to Wireman, Officer Kisela found pills of
Alprazolam and Hydrocodone in Wireman’s pants pocket, drugs for which Wireman had no
prescription.
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On August 22, 2012, the State charged Wireman with Class D felony illegal
possession of a syringe and two counts of Class D felony possession of a controlled
substance. On August 19, 2013, the trial court found Wireman guilty of two counts of Class
D felony illegal possession of a controlled substance.
Cause Number 75C01-1301-FD-11 (“Cause No. FD-11”)
On the night of January 13, 2013, Starke County Sheriff’s Deputy James Upsall was
dispatched to a vehicle in the middle of road near the intersection of Starke County Roads
850 South and 1000 East. Deputy Upsall encountered Wireman “passed out” in the front seat
of the still-running vehicle with a syringe in his right hand, which was pointed at his left arm
and contained a blue liquid. Tr. p. 53. When Deputy Upsall opened the door and reached in
to take the vehicle out of gear, Wireman woke up and appeared confused. Deputy Upsall
told Wireman to drop the syringe, whereupon Wireman initially attempted to hide it under his
shirt. (Tr. 54). Wireman’s words were “very slurred[,]” he “wasn’t making much sense and
… his pupils were dilated pretty well[,]” and “[h]e was very unsteady.” Tr. p. 55. Deputy
Upsall found half a pill of Oxycodone in the front passenger’s seat.
On January 15, 2013, the State charged Wireman with Class D felony illegal
possession of a controlled substance, Class D felony illegal possession of a syringe, Class A
misdemeanor OWI, Class D felony OWI with a prior conviction, Class C misdemeanor
operating a vehicle with a controlled substance in the body, and Class D felony operating a
vehicle with a controlled substance in the body with a prior conviction. On August 19, 2013,
the trial court found Wireman guilty of Class D felony illegal possession of a controlled
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substance, Class D felony illegal possession of a syringe, and Class D felony OWI with a
prior conviction.
Sentencing
On October 1, 2013, the trial court conducted a combined sentencing hearing for
Cause Nos. FD-183 and FD-11. The trial court found, as aggravating circumstances, that
Wireman’s offenses were committed in motor vehicles, his criminal history, and high risk
that he would reoffend. In Cause No. FD-183, the trial court sentenced Wireman to thirty
months of incarceration for each count of illegal possession of a controlled substance, both
sentences to be served concurrently with one another. In Cause No. FD-11, the trial court
sentenced Wireman to thirty months each for illegal possession of a controlled substance,
illegal possession of a syringe, and OWI with a prior conviction, all sentences to be served
concurrently with one another. The trial court ordered that the thirty-month sentences from
Cause Nos. FD-183 and FD-11 be served consecutively for an aggregate sentence of sixty
months, or five years. The trial court noted that it was required to order that the sentences
from the separate cause numbers be served consecutively because Wireman had committed
the crimes in Cause No. FD-11 while out on bond in Cause No. FD-183.
DISCUSSION AND DECISION
Whether Wireman’s Sentence is Inappropriate
We “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.” Ind. Appellate Rule 7(B). “Although appellate
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review of sentences must give due consideration to the trial court’s sentence because of the
special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.” Shouse v.
State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks
omitted). The State argues, and we agree, that under the facts of these cases, the trial court
could have imposed a maximum aggregate sentence of eight years of incarceration.1 As
previously mentioned, the trial court sentenced Wireman to an aggregate sentence of five
years of incarceration.
The nature of Wireman’s offenses justifies his sentence. In two separate incidents,
Wireman was found passed out behind the wheel of a running vehicle, at least once with the
vehicle still in gear. Fortunately, nobody was injured in either incident, but, as the trial court
pointed out at sentencing, “When you’re in a vehicle, that changes things.” Sentencing Tr. p.
18. The trial court, referring to evidence that Wireman was passed out on a curve in the
County Road in Cause No. 11, observed that it was fortunate that no other driver came upon
him at fifty-five miles per hour before the police discovered him. In short, the State proved
circumstances significantly more egregious than those required to prove the crimes with
1
At the time Wireman committed his crimes, the maximum penalty for a single Class D felony was
three years of incarceration. See Ind. Code § 35-50-2-7 (2012). The trial court could have imposed maximum
sentences of four years in each cause number, as the charges in each arose out of a single episode of criminal
conduct. See Ind. Code § 35-50-1-2(c) (2012) (“[T]he total of the consecutive terms of imprisonment … to
which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not
exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the
felonies for which the person has been convicted.”). The trial court was required to order that the sentences
from both cause numbers be served consecutively because Wireman committed the crimes charged in Cause
No. FD-11 while out on bond in Cause No. FD-183. See Ind. Code § 35-50-1-2(d) (2012) (“If, after being
arrested for one (1) crime, a person commits another crime … while the person is released … on bond[,] the
terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes
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which Wireman was charged, and the nature of his offenses therefore justifies his sentence.
As for Wireman’s character, it is that of a reckless and wonton substance abuser who
has consistently failed to avail himself of opportunities to receive help. Wireman’s criminal
history began when he was eleven, and, as a juvenile, he had eight adjustments, mostly for
substance-abuse-related offenses. As an adult, Wireman (born in 1969) has amassed eight
prior felony convictions, including for two counts of Class C felony forgery, two counts of
Class D felony OWI with a prior conviction, Class D felony strangulation, Class D felony
domestic battery, Class D felony methamphetamine possession, and Class D felony illegal
possession of a syringe. Wireman also has twenty-one prior misdemeanor convictions: the
Class A misdemeanors of three counts of OWI, two counts of resisting law enforcement,
battery, domestic battery, invasion of privacy, and check deception; the Class B
misdemeanors of three counts of public intoxication and failure to stop following an
accident; and the Class C misdemeanors of eight counts of illegal consumption of alcohol.
(PSI). Wireman has had four probation violations alleged, has had probation revoked on two
occasions, and has violated the terms of parole once. Moreover, Wireman had only been
released from incarceration for three days when he committed the crimes charged in Cause
No. FD-183 and was out on bond in that case when he was charged in Cause No. FD-11.
Despite Wireman’s long-standing and obvious issues with substance abuse, he indicated in
the presentence investigation questionnaire that he did not have a drug problem and was not
in need of treatment. In light of Wireman’s very extensive criminal history and his failure to
are tried and sentences are imposed.”).
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address (or even acknowledge) his long-standing substance abuse issues, his character also
justifies enhanced sentences. In light the nature of Wireman’s offense and his character, he
has failed to establish that his five-year aggregate sentence is inappropriate.
The judgment of the trial court is affirmed.
BARNES, J., and BROWN, J., concur.
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