Heath Burgess v. State of Indiana ( 2014 )


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  •  Pursuant to Ind.Appellate Rule 65(D),                           Apr 30 2014, 9:39 am
     this Memorandum Decision shall not be
     regarded as precedent or cited before 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:
    
    BRUCE W. GRAHAM                                       GREGORY F. ZOELLER
    Graham Law Firm P.C.                                  Attorney General of Indiana
    Lafayette, Indiana
                                                          RICHARD C. WEBSTER
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
    
    
    
                                    IN THE
                          COURT OF APPEALS OF INDIANA
    
    HEATH BURGESS,                                        )
                                                          )
           Appellant-Defendant,                           )
                                                          )
                    vs.                                   )      No. 79A02-1309-CR-754
                                                          )
    STATE OF INDIANA,                                     )
                                                          )
           Appellee-Plaintiff.                            )
    
    
                          APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                               The Honorable Michael A. Morrissey, Judge
                                    Cause No. 79D06-1207-FD-168
    
    
                                                April 30, 2014
    
                     MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    FRIEDLANDER, Judge
              After pleading guilty to class A misdemeanor Operating a Vehicle While Intoxicated1
    
    and admitting to being a Habitual Substance Offender,2 Heath Burgess was sentenced to five
    
    years in the Tippecanoe County Jail with one year suspended. Burgess now appeals and
    
    argues that his sentence is inappropriate in light of the nature of the offense and his character.
    
              We affirm.
    
              On the evening of July 23, 2012, Burgess was driving with a blood-alcohol content of
    
    approximately .196. Burgess was so intoxicated that he somehow fell out of his vehicle near
    
    an intersection, but his car kept moving and struck a mailbox and another vehicle. As a result
    
    of these and other events, the State charged Burgess with multiple counts, including
    
    operating a vehicle while intoxicated, driving while suspended, battery by bodily waste, and
    
    disorderly conduct. The State also alleged that Burgess was a habitual offender and a
    
    habitual substance offender. On January 2, 2013, Burgess entered into a plea agreement
    
    whereby he would plead guilty to one count of class A misdemeanor operating a vehicle
    
    while intoxicated and admit to his habitual substance offender status in return for the
    
    dismissal of the remaining counts and the habitual offender allegation. Additionally, his
    
    sentence would be capped at six years
    
              On May 8, 2013, the trial court sentenced Burgess to one year for the operating while
    
    intoxicated offense, enhanced by four years based on his habitual substance offender status,
    
    with one year suspended to probation. Thus, Burgess received an aggregate sentence of four
    
    
    
    1
        Ind. Code Ann. § 9-30-5-2 (West, Westlaw current with all 2013 legislation).
    2
        Ind. Code Ann. § 30-50-2-10 (West, Westlaw current with all 2013 legislation).
    
                                                          2
    years executed in the Tippecanoe County Jail and one year suspended. At the sentencing
    
    hearing, the trial court noted that Burgess owed Tippecanoe County Community Corrections
    
    nearly $2,500 in back fees, and the arrearage would prevent Burgess’s placement in
    
    community corrections even if it was inclined to order such a placement.3 Nevertheless, the
    
    trial court stated that after Burgess served one year of his sentence in the Tippecanoe County
    
    Jail, it would consider a motion for Burgess to serve the remainder of the sentence in
    
    community corrections, contingent on Burgess’s payment of his back fees and acceptance
    
    into the program. Burgess now appeals.
    
            Burgess argues that his sentence is inappropriate in light of the nature of the offense
    
    and his character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court
    
    the power to review and revise criminal sentences. Pursuant to App. R. 7, the Supreme Court
    
    has authorized this court to perform the same task. Cardwell v. State, 
    895 N.E.2d 1219
     (Ind.
    
    2008). Per App. R. 7(B), we may revise a sentence “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.” Wilkes v. State, 
    917 N.E.2d 675
    , 693 (Ind. 2009),
    
    cert. denied, 
    131 S. Ct. 414
     (2010). Nevertheless, “we must and should exercise deference to
    
    a trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
    
    consideration’ to that decision and because we understand and recognize the unique
    
    
    
    3
     On the same date as Burgess’s sentencing hearing, the trial court entered a written sentencing order that did
    not reflect the sentence announced at the hearing. Specifically, the written order directed that Burgess was to
    serve his sentence in Tippecanoe County Community Corrections. Several months later, the trial court entered
    a written order correcting its previous sentencing order to reflect its oral sentencing statement. Burgess
    subsequently sought, and was granted, permission to file a belated notice of appeal.
    
                                                          3
    perspective a trial court brings to its sentencing decisions.” Stewart v. State, 
    866 N.E.2d 858
    ,
    
    866 (Ind. Ct. App. 2007).
    
           In this case, Burgess does not challenge the length of his sentence. Rather, he
    
    challenges his placement in the county jail, arguing that he should instead have been placed
    
    in community corrections. This court has noted that “it will be quite difficult for a defendant
    
    to prevail on a claim that the placement of his sentence is inappropriate.” King v. State, 
    894 N.E.2d 265
    , 267 (Ind. Ct. App. 2008). This is so because a defendant challenging the
    
    placement of his sentence must convince us not that another placement would be more
    
    appropriate, but that his given placement is inappropriate. King v. State, 
    894 N.E.2d 265
    .
    
    Moreover, we acknowledge that as a practical matter, trial courts are familiar with alternative
    
    placements and are aware of the availability, costs, and entrance requirements of community
    
    corrections placements in their jurisdictions. Id.
    
           Burgess has not carried his burden of convincing us that his placement in the
    
    Tippecanoe County Jail is inappropriate. The trial court noted that even if it was inclined to
    
    place Burgess in community corrections, Burgess was ineligible for the program because he
    
    owed nearly $2,500 in back fees from previous placements. Thus, placement in community
    
    corrections was simply not an option for Burgess. Burgess argues that his placement “ought
    
    not be dependent on economic issues.” Appellant’s Brief at 9. Burgess does not, however,
    
    make any argument that the trial court had the authority to compel Tippecanoe County
    
    Community Corrections to accept Burgess into its program notwithstanding his arrearage.
    
           Moreover, even if Burgess was eligible for community corrections, he has not
    
    
                                                   4
    established that placement in the county jail was inappropriate. Burgess notes that because
    
    he was convicted of a misdemeanor, which was enhanced based on his habitual substance
    
    offender status, he is faced with the somewhat unusual circumstance of serving a relatively
    
    lengthy sentence in a county jail rather than the Department of Correction. See Ind. Code
    
    Ann. § 35-38-3-3 (West, Westlaw current with all 2013 legislation) (providing that a person
    
    convicted of a misdemeanor may not be committed to the Department of Correction except in
    
    certain limited circumstances). According to Burgess, “[a]necdotal evidence, and common
    
    sense, would dictate that service of that length of a sentence in a county jail would constitute
    
    a harsher punishment, [sic] than service of four years in the Indiana Department of
    
    Corrections.” Appellant’s Brief at 7-8. Even assuming the accuracy of this assertion, we
    
    remain unconvinced that Burgess’s placement is inappropriate.
    
           Considering the nature of the offense, we note that Burgess was driving with a blood-
    
    alcohol content of .196, and that he was so intoxicated that he fell out of his vehicle. The
    
    vehicle kept moving, causing property damage. Considering the character of the offender,
    
    we note that Burgess’s lengthy criminal history includes two prior convictions for operating a
    
    vehicle while intoxicated and multiple drug- and alcohol-related misdemeanors. Burgess
    
    also has felony convictions for resisting law enforcement, auto theft, and theft, and he was
    
    previously found to be a habitual offender. While out on bond in this case, Burgess was
    
    convicted of class C felony carrying a handgun without a license. Burgess points out that he
    
    accepted responsibility for his crimes by pleading guilty, but the mitigating weight of his
    
    guilty plea is tempered by the fact that multiple charges were dismissed as part of the plea
    
    
                                                   5
    agreement. Finally, and perhaps most importantly in this case, the record establishes that
    
    Burgess has not fared well when offered alternatives to incarceration. Burgess has a long
    
    history of violating the conditions of probation, home detention, and work release, and he has
    
    also failed to appear numerous times. For all of these reasons, we cannot conclude that
    
    Burgess’s placement in county jail rather than community corrections is inappropriate.
    
           Judgment affirmed.
    
    MATHIAS, J., and PYLE, J., concur.
    
    
    
    
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Document Info

DocketNumber: 79A02-1309-CR-754

Filed Date: 4/30/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014