Cody Matthew Fritz v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
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, Jun 07 2013, 9:17 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW B. ARNETT GREGORY F. ZOELLER
Shelby County Public Defender Attorney General of Indiana
Indianapolis, Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CODY MATTHEW FRITZ, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1212-CR-539
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Norman D. Curry, Senior Judge
Cause No. 73D02-1206-FD-182
June 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Cody Fritz appeals his three-year sentence for operating a vehicle while
intoxicated with a prior conviction as a Class D felony, contending that his sentence is
inappropriate in light of the nature of the offense and his character. Finding that his
three-year sentence is not inappropriate, we affirm.
Facts and Procedural History1
In the early morning hours of May 25, 2012, Shelby County Sheriff’s Deputy
Nicholas Hartman pulled over Fritz for driving left of center on County Road 500 South.2
Upon observing Fritz’s eyes to be “glassy and droopy” and smelling alcohol on his
breath, Deputy Hartman administrated three field sobriety tests, all of which Fritz failed.
Appellant’s App. p. 34. Deputy Hartman transported Fritz to the Shelby County Jail and
administered a certified breath test, which revealed that Fritz’s BAC was 0.12. It was
also discovered that Fritz did not have a valid driver’s license and had a previous
conviction in 2008 for operating while intoxicated.
The State charged Fritz with: Count I, operating a vehicle while intoxicated
(“OWI”) with a prior conviction as a Class D felony; Count II, operating a vehicle with
.08 or more alcohol in a person’s body, a Class C misdemeanor; and Count III, dangerous
OWI, a Class A misdemeanor. Pursuant to a plea agreement, Fritz pled guilty to Count I
1
Because the parties in this case take the facts from the police report attached to the probable-
cause affidavit, so do we.
2
We acknowledge this Court’s holding in State v. Keck, 2013 WL 1755482 (Ind. Ct. App. Apr.
24, 2013), in which we held that the police did not have reasonable suspicion to stop the defendant who
was driving on the left side of a country road because of poor road conditions. Nevertheless, we note that
this is not an issue in this case.
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and the State dismissed Counts II and III. The parties agreed to leave sentencing to the
discretion of the trial court.
At the sentencing hearing, the trial court identified Fritz’s significant criminal
record as an aggravator and found no mitigators. The trial court sentenced Fritz to three
years executed. Fritz now appeals.
Discussion and Decision
Fritz contends that his executed sentence of three years is inappropriate in light of
the nature of the offense and his character.
Our rules authorize revision of 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.” Ind. Appellate Rule 7(B). “[A] defendant
must persuade the appellate court that his or her sentence has met this inappropriateness
standard of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and a myriad of other factors that come to light in a
given case. Id. at 1224.
Fritz pled guilty to Class D felony OWI with a prior conviction. A person who
commits a Class D felony shall be imprisoned for a fixed term of between six months and
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three years, with the advisory sentence being one and one-half years. Ind. Code § 35-50-
2-7. Here, the trial court sentenced Fritz to three years. This sentence was within the
statutory range.
Regarding the nature of his offense, Fritz had a BAC of 0.12 and was driving in
the middle of the road with a passenger in his vehicle. This is Fritz’s second OWI and
consequently, he was charged with a Class D felony based on his 2008 conviction.
Although the nature of this offense is not remarkable, Fritz’s character does not help his
cause.
Fritz has a significant criminal history, which dates back to 1997 when he was
nine years old. The record clearly indicates that despite his numerous contacts with the
legal system, Fritz has not modified his criminal behavior. Instead, twenty-five-year-old
Fritz has accumulated one felony conviction, six misdemeanor convictions, and five
juvenile adjudications. The misdemeanor convictions include three alcohol-related
offenses: OWI, illegal consumption of alcohol, and public intoxication. Furthermore,
Fritz was placed on probation four different times and each time he had his probation
revoked. Fritz’s criminal history and failed efforts of rehabilitation justify the enhanced
sentence. The trial court did not find any mitigators and observed that “nothing seems to
get [his] attention.” Tr. p. 14. According to the presentence investigation report, there is
a high risk that Fritz will commit another offense. Fritz’s argument that he has parental
responsibilities, previously maintained employment, and has a health issue do little to
offset Fritz’s extensive criminal history as the trial court noted that Fritz’s heart problem
“hasn’t stopped [him] from functioning.” Id. at 13. He apologized to the court and to his
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fiancée, admitting that he had “made a lot of stupid decisions.” Id. at 8. However, the
trial court determined that he was not remorseful, and the trial court is in the best position
to judge the sincerity of a defendant’s remorseful statements. Stout v. State, 834 N.E.2d
707, 711 (Ind. Ct. App. 2005), trans. denied.
Fritz has failed to persuade us that his sentence of three years is inappropriate. We
therefore affirm the trial court.
Affirmed.
KIRSCH, J., and PYLE, J., concur.
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