Alonzo R. Weekly v. State of Indiana , 105 N.E.3d 1133 ( 2018 )

FILED
Jun 29 2018, 8:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald R. Shuler Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alonzo R. Weekly, June 29, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1712-CR-2922
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff. Judge
The Honorable Kristine A.
Osterday, Magistrate
Trial Court Cause No.
20D04-1703-F6-392
Najam, Judge.
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Statement of the Case
[1] Alonzo R. Weekly appeals his convictions and sentence following a jury trial
for operating a vehicle while intoxicated with a previous conviction, as a Level
6 felony, and a habitual vehicular substance offender (“HVSO”) enhancement.
He presents two issues for our review:
1. Whether the trial court abused its discretion when it
admitted into evidence the result of a chemical breath test
and the testimony of two officers.
2. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] At 12:41 a.m. on March 11, 2017, Officer Kevin Corona and Corporal Lee
Brooks with the Elkhart Police Department observed Weekly driving a
motorized scooter through an intersection “at what appeared to be a high rate
of speed.” Tr. Vol. II at 85. The officers, who were in a marked police vehicle,
began to follow Weekly, and they witnessed Weekly fail to stop at two stop
signs. Accordingly, the officers initiated a traffic stop.
[4] When Officer Corona and Corporal Brooks approached Weekly, they both
observed that he had slurred speech and bloodshot, glassy eyes. They could
also smell an odor of alcohol on Weekly’s breath. Based on those observations,
Officer Corona conducted three standardized field sobriety tests on Weekly.
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Weekly failed the first test, and he did not complete the other two tests. Officer
Corona then asked Weekly to submit to a certified chemical breath test at the
police station. Weekly agreed to take the test. At that point, the officers
transported Weekly to the police station, and Corporal Brooks performed the
certified breath test. The results of the breath test showed that Weekly had an
alcohol concentration of 0.207 gram of alcohol per 210 liters of breath.
[5] The State charged Weekly with one count of operating a vehicle while
intoxicated in a manner that endangers a person, as a Class A misdemeanor
(Count I), and one count of operating a vehicle with an alcohol concentration
equivalent to at least 0.15 gram of alcohol per 210 liters of breath, as a Class A
misdemeanor (Count II). The State later added one count of operating a
vehicle while intoxicated with a previous conviction, as a Level 6 felony, and
alleged that Weekly was an HVSO. Prior to trial, Weekly filed a motion to
suppress evidence alleging that the evidence against him was obtained illegally
because “the stop was unjustified without reasonable suspicion or probable
cause.” Appellant’s App. Vol. II at 34. The trial court denied that motion after
a hearing.
[6] The trial court held a bifurcated jury trial on October 23, 2017. During the first
phase of the trial, both Officer Corona and Corporal Brooks testified to their
observations of Weekly during the traffic stop, including the results of the field
sobriety tests, without objection from Weekly. The State also presented as
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evidence, without objection, the video recording of the traffic stop. 1 And the
State presented the results of Weekly’s chemical breath test, which the trial
court admitted over Weekly’s objection.
[7] At the conclusion of the first phase of his trial, the jury found Weekly guilty of
Counts I and II. In phase two of the trial, Weekly pleaded guilty to operating a
vehicle while intoxicated with a previous conviction, as a Level 6 felony, and he
admitted to being an HVSO. The trial court merged the guilty verdicts for
Counts I and II and entered judgment of conviction on the Level 6 felony and
the HVSO enhancement. The trial court sentenced Weekly to two years with
the Department of Correction for operating a vehicle while intoxicated with a
previous conviction, as a Level 6 felony. And, for the HVSO enhancement, the
trial court imposed “an additional three (3) years at the Indiana Department of
Correction, consecutive to the sentence” for the Level 6 felony.2 Appellant’s
App. Vol. II at 124. This appeal ensued.
1
Weekly affirmatively stated that he had “no objection” to the admission of the video exhibit as evidence.
Tr. Vol. II at 98. However, Weekly did object to the publication of the video. The trial court granted the
State’s motion to publish over Weekly’s objection.
2
Weekly was also on probation for two prior offenses at the time of his sentencing hearing. Accordingly,
the trial court revoked Weekly’s probation and imposed his previously suspended sentence for one offense
and ordered Weekly back to reporting probation for the second offense. The trial court ordered both of those
sentences to run consecutive to the sentence imposed for the instant offense.
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Discussion and Decision
Issue One: Admission of Evidence
[8] Weekly first contends that the trial court abused its discretion when it admitted
into evidence the results of the chemical breath test and the officers’ testimony,
which included their observations of Weekly following the traffic stop and the
results of the field sobriety tests. Weekly initially challenged the admission of
this evidence through a motion to suppress but now appeals following a
completed trial.3 Thus, the issue is appropriately framed as whether the trial
court abused its discretion by admitting the evidence at trial. Lanham v. State,
937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010). This court has previously held
that
[o]ur review of rulings on the admissibility of evidence is
essentially the same whether the challenge is made by a pre-trial
motion to suppress or by trial objection. [Lundquist v. State, 834
N.E.2d 1061, 1067 (Ind. Ct. App. 2005).] We do not reweigh the
evidence, and we consider conflicting evidence most favorable to
the trial court’s ruling. Id. However, we must also consider the
uncontested evidence favorable to the defendant. Id.Harbaugh v. State, 96 N.E.3d 102, 106 (Ind. Ct. App. 2018).
3
Throughout his brief on appeal, Weekly also contends that the trial court erred when it denied his motion
to suppress. However, because Weekly appeals after a completed trial, “the question of whether the trial
court erred in denying his motion to suppress is no longer viable.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind.
Ct. App. 2010).
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[9] Weekly specifically contends that the trial court abused its discretion when it
admitted the results of the chemical breath test over his objection and that,
without that evidence, “there would be no remaining probative evidence
sufficient to convict [Weekly] of Operating While Intoxicated or Operating with
an ACE of 0.15 or greater.” Appellant’s Br. at 18. He also contends that the
trial court committed fundamental error when it admitted into evidence the
officers’ testimony, including their observations of Weekly during the traffic
stop and the results of the field sobriety tests.4
[10] Weekly asserts that the trial court should not have admitted the evidence
because the officers did not have reasonable suspicion to stop him and,
therefore, the stop violated his Fourth Amendment rights.5 The Fourth
Amendment to the United States Constitution protects citizens from
unreasonable searches and seizures. U.S. Const. amend. IV.
[11] Our Supreme Court has held that
[o]ur jurisprudence reflects two types of police encounters that
implicate Fourth Amendment protection: the investigatory stop
and the custodial arrest. Clark v. State, 994 N.E.2d 252, 261 (Ind.
2013). An investigatory stop is generally brief in duration and is
constitutionally permissible so long as the law enforcement
officer “has a reasonable suspicion supported by articulable facts
4
Weekly alleges that the trial court committed fundamental error when it admitted the officers’ testimony
because he did not object at trial.
5
While Weekly makes one reference in his brief to Article I, Section 11 of Indiana Constitution, he has not
developed a separate argument on appeal based upon the Indiana Constitution. Accordingly, we will only
review whether the traffic stop violated his rights under the federal constitution.
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that criminal activity ‘may be afoot.’” United States v. Sokolow,
490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting
Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968)). The custodial arrest constitutes a greater restriction
upon the subject’s liberty and requires a commensurately greater
justification: probable cause. Clark, 994 N.E.2d at 261.
State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014).
[12] Here, the question is whether the police had reasonable suspicion to support a
brief investigatory stop, i.e., a “Terry stop,” of Weekly’s motorized scooter.
“When determining whether an officer had reasonable suspicion for a Terry
stop, we consider whether ‘the totality of the circumstances’ presented ‘a
particularized and objective basis’ for the officer’s belief that the subject was
engaged in criminal activity.” Id. (quoting Sellmer v. State, 842 N.E.2d 358, 360
(Ind. 2006)).
[13] It is well-settled that “[i]f an officer observes a driver commit a traffic violation,
he has probable cause—and thus also the lesser included reasonable suspicion—
to stop that driver.” Id. And, here, both Officer Corona and Corporal Brooks
testified that they witnessed Weekly fail to stop at two stop signs. Thus, the
officers observed Weekly commit two traffic violations and, as such, the officers
had probable cause to stop Weekly.6 See, e.g., Staten v. State, 946 N.E.2d 80, 83
6
Weekly contends that the officers did not have reasonable suspicion to stop him because “neither officer
can testify to what the relevant speed limit was to establish that [Weekly] committed the traffic violation of
speeding.” Appellant’s Br. at 15-16. But, while both officers testified that Weekly’s high rate of speed is
what drew the attention of the officers, the affidavit for probable cause states that the reason for the traffic
stop was only because Weekly had “disregarded stop signs[.]” Appellant’s App. Vol. II at 15.
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(Ind. Ct. App. 2011). And as soon as Officer Corona and Corporal Brooks
approached Weekly, they noticed that his speech was slurred, his eyes were
bloodshot, and his breath smelled of alcohol. Weekly then attempted to
perform three field sobriety tests, but he failed one and did not complete the
other two. Finally, Weekly consented to a chemical breath test. The traffic
stop and subsequent investigation did not violate Weekly’s Fourth Amendment
rights. Weekly’s argument on appeal is simply a request for this court to
reweigh the evidence, which we will not do. The trial court did not abuse its
discretion when it admitted into evidence the results of the breath test that
followed the traffic stop. See id. And the trial court did not commit any error,
let alone fundamental error, when it admitted the testimony of the two officers.
Accordingly, we affirm Weekly’s convictions.
Issue Two: Sentencing
[14] Weekly next contends that his sentence is inappropriate in light of the nature of
the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he
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.” The
Indiana Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. Anglemyer v.
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State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[15] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence 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.
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).
Further, the location where a sentence is to be served is an appropriate focus for
application of our review and revise authority. See Biddinger v. State, 868 N.E.2d
407, 414 (Ind. 2007).
[16] Weekly was convicted of one count of operating a vehicle while intoxicated
with a previous conviction, as a Level 6 felony, and he was found to be an
HVSO. The sentencing range for a Level 6 felony is six months to two and one-
half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b)
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(2018). And the court shall sentence a person found to be an HVSO to an
additional term of one to eight years of imprisonment. I.C. § 9-30-15.5-2(d).
[17] Here, the trial court identified as mitigating factors the fact that Weekly has an
outstanding child support obligation and that Weekly’s imprisonment will place
a hardship on his children. The trial court also acknowledged the fact that
Weekly’s Indiana Risk Assessment System score reflected a low risk to
reoffend. But the trial court found the following aggravating circumstances:
Weekly’s criminal history; that Weekly has a history of violating conditions of
probation and community corrections; and that previous sanctions have not
been successful in keeping Weekly from engaging in criminal activity.
Accordingly, the trial court sentenced Weekly to an aggregate term of five years
in the Department of Correction.
[18] Weekly maintains that his sentence is inappropriate in light of the nature of the
offense because “the actual actions by [Weekly] in the present case are the bare
elements of an offense that is a Class A misdemeanor” and that his offense was
only elevated to a Level 6 felony because of a prior offense. Appellant’s Br. at
24. He further contends that the nature of his offense is “unremarkable” and
that he “was cooperative with the police during the traffic stop and during his
arrest[.]” Id. Be that as it may, we consider both the nature of the offense and
Weekly’s character in our review. See Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008). And Weekly’s character persuades us that his sentence is
not inappropriate.
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[19] At the time of the instant offense, Weekly’s criminal history included three
felony convictions and four misdemeanor convictions, and three of those
convictions were for operating a vehicle while intoxicated. And Weekly has
had his probation revoked on one previous occasion. Further, Weekly was on
probation for two prior instances of operating a vehicle while intoxicated when
he committed the current offense. As such, we cannot say that Weekly’s five-
year sentence is inappropriate in light of his character.
[20] Weekly also asserts that his placement in the Department of Correction is
inappropriate because his incarceration would result in a hardship on his
children and because “there were more appropriate options to simply
warehousing a defendant in the Department of Corrections [sic] for the entirety
of a sentence.” Appellant’s Br. at 27. But, as the trial court found, Weekly
“has a history of violating conditions of probation and community corrections”
and “other sanctions previously imposed have not been successful in keeping
[Weekly] from engaging in criminal activity.” Appellant’s App. Vol. II at 123.
Accordingly, Weekly has not demonstrated that his placement in the
Department of Correction is inappropriate. Weekly’s five-year sentence
executed in the Department of Correction is not inappropriate and we affirm
his sentence.
[21] However, we also address the State’s contention that the trial court erred when
it ordered the HVSO portion of Weekly’s sentence to be consecutive to the
sentence for the felony conviction. The State contends that “the habitual
portion should be an enhancement of the sentence for the Level 6 felony”
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pursuant to Indiana Code Section 9-30-15.5-2. Appellee’s Br. at 5 n.1. We
agree.
[22] Indiana Code Section 9-30-15.5-2 provides, in relevant part, that “[t]he court
shall sentence a person found to be a habitual vehicular substance offender to
an additional fixed term of at least one (1) year but not more than eight (8)
years of imprisonment, to be added to the term of imprisonment imposed under
IC 35-50-2 or IC 35-50-3.” I.C. § 9-30-15.5-2(d) (emphasis added).
[23] We hold that the “to be added” language in the HVSO statute is equivalent to
the “attach” language in Indiana’s habitual offender statute, which provides, in
relevant part:
Habitual offender is a status that results in an enhanced sentence.
It is not a separate crime and does not result in a consecutive
sentence. The court shall attach the habitual offender
enhancement to the felony conviction with the highest sentence
imposed and specify which felony count is being enhanced.
I.C. 35-50-2-8(j) (emphasis added).
[24] And it is well-settled that “‘[a] habitual offender finding does not constitute a
separate crime nor result in a separate sentence, but rather results in a sentence
enhancement imposed upon the conviction of a subsequent felony.’” Kilgore v.
State, 922 N.E.2d 114, 120 (Ind. Ct. App. 2010) (quoting Greer v. State, 680
N.E.2d 526, 527 (Ind. 1997)). Accordingly, we hold that an HVSO finding
does not constitute a separate crime nor result in a separate sentence but is an
enhancement to an underlying felony conviction. The trial court erred when it
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ordered the HVSO sentence to run as a separate, consecutive sentence. We
reverse that portion of the sentencing order and remand to the trial court with
instructions to resentence Weekly in accordance with this opinion. See id.[25] Affirmed in part, reversed in part, and remanded with instructions.
Robb, J., and Altice, J., concur.
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