APPEAL FROM THE PARKE CIRCUIT COURT. The Honorable Sam A. Swaim, Judge. Cause No. 61C01-1201-FD-17.
ATTORNEYS FOR APPELLANT: WILLIAM G. SMOCK, MATTHEW A. SHEEHAN, Terre Haute, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; KATHERINE MODESITT COOPER, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. RILEY, J., and MAY, J., concur.
VAIDIK, Chief Judge
Wendy Thompson appeals her sentence for four counts
of Class D felony operating a motor vehicle with a blood-alcohol concentration of at least 0.08 causing serious bodily injury. She raises two issues on appeal. First, she argues that her sentence exceeds the maximum sentence allowable under the consecutive-sentencing statute because Class D felony operating a motor vehicle with a blood-alcohol concentration of at least 0.08 causing serious bodily injury is not a " crime of violence" within the meaning of Indiana Code section 35-50-1-2(a). Second, she argues that her sentence is inappropriate in light of the nature of the offenses and her character. Finding that Class D felony operating a motor vehicle with a blood-alcohol concentration of at least 0.08 causing serious bodily injury is a " crime of violence" and that Thompson's sentence is appropriate in light of the nature of the offenses and her character, we affirm.
Facts and Procedural History
In 2012, Thompson lived in Terre Haute, Indiana and her children lived with their father in Avon. On the evening of January 21, 2012, Thompson was returning to Terre Haute after visiting her son for the weekend. It was her first unsupervised visit with him in eight months.
On the way back to Terre Haute, Thompson stopped at a liquor store, purchased alcoholic beverages, and began to drink alcohol while driving. She also took a benzodiazepine pill, which intensifies the effect of alcohol. Thompson was driving her blue Nissan SUV on U.S. Highway 36 in Parke County, Indiana.
John Wilson was also driving on Highway 36 that day. As he was driving, he noticed Thompson approaching quickly from behind. As Thompson passed him, Thompson used her left turn signal when moving from the left passing lane back to the right lane. After passing Wilson, she passed another car in front of him, using her right turn signal to move from the right lane to the left lane and then her left turn signal to move from the left lane to the right lane. Wilson estimated that Thompson was driving at approximately eighty-five miles per hour.
Shortly after Thompson passed Wilson, Thompson approached a green Ford Escort driven by Tina Redman. While Thompson was behind Redman, Redman slowed down for an Amish wagon in front of her. Thompson did not slow down and rear-ended Redman's car. According to Wilson, who saw the accident, Thompson did not apply her brakes before hitting Redman's car. The State Police reconstruction report determined that Thompson was traveling " at least 34 miles per hour." Tr. p. 48. Redman's car slid down the guardrail and hit a white Jeep Cherokee driving in the opposite direction.
After seeing the accident, Wilson stopped to help the people injured. He went to Redman's car and pulled the windows outward so the glass would not break toward the people inside. Redman and her daughter, H.M., were inside the car.
H.M. was screaming and crying and was covered in her mother's blood. Wilson also noticed that Redman's blood covered the floor of the car. He cut H.M.'s seatbelt but was unable to remove her. H.M., who had been riding in the front passenger seat of Redman's car, suffered significant injuries to her right ring finger, requiring two surgeries to repair. Her legs were also severely bruised, making it difficult for her to walk for about one month after the accident.
Redman was unconscious and had to be airlifted to Methodist Hospital in Indianapolis. She remained in a coma for fourteen days due to traumatic head and brain injuries. She had " multiple skull fractures along with a severe brain bleed, fractured mastoid processes, a ruptured ear drum, and fractured cheek bones." Id. at 43. She also suffered a partial loss of sight in both eyes, loss of balance, constant headaches, and is still unable to drive or continue working as a hairdresser.
Kimberly Parsons and Beth Fiandt, the occupants of the white Jeep Cherokee, were also seriously injured. Parsons was taken to the hospital in a neck brace and continues to have shoulder problems. Ex. 3. Fiandt " missed a week of work during her recovery and experienced acute pain for some time afterward." Ex. 2. Her Jeep Cherokee was also destroyed. Id.
At the scene of the accident, Wilson noticed Thompson laughing and talking on her cellular phone. According to Wilson, it was " [n]ot like hysterical laughing but a little bit of childish giggling -- giggling going on." Tr. p. 13.
Thompson was also injured in the collision and taken to St. Vincent Clay Hospital. At the hospital, Thompson's blood was tested. Her blood-alcohol concentration was 0.25, over three-times the legal limit. Id. at 64. She also tested positive for benzodiazepines, but she has a valid prescription for them. Id. at 65-66.
The State charged Thompson with eight felonies. Counts 1, 2, 3, and 4 were for Class D felony causing serious bodily injury when operating a motor vehicle with a blood-alcohol concentration of at least 0.08 under Indiana Code section 9-30-5-4(a)(1) and Counts 5, 6, 7, and 8 were for Class D felony causing serious bodily injury when operating a motor vehicle while intoxicated under Indiana Code section 9-30-5-4(a)(3). Appellant's App. p. 1-8. Thompson entered into a plea agreement with the State and pled guilty to Counts 1, 2, 3, and 4. Id. at 9. In exchange for Thompson's guilty plea, the State agreed to recommend that:
[t]he length and terms of [Thompson's] sentence (including whether or not to run the sentences consecutively) shall be left to the Court's discretion. However, [Thompson's] sentence on Count 3 shall be six months suspended to probation, and the sentence on Count 4 shall be six months suspended to probation . . . . The State further moves the Court to dismiss any remaining count(s) upon sentencing [Thompson].
Id. at 9. The State also dismissed the charges for Counts 5, 6, 7, and 8. Id.
Thompson testified at the sentencing hearing. She explained that she had begun abusing alcohol because she was molested by a member of her religious order when she was seven years old and had been suppressing her feelings about the event. Although she had received treatment for alcohol abuse before, she relapsed after dropping her son off that day. While awaiting sentencing in this case, she wore an alcohol-monitoring bracelet. She successfully abstained from drinking and sought psychological treatment from Dr. Michael Murphy, a clinical psychologist and professor at Indiana State University.
Dr. Murphy also testified at the sentencing hearing. According to Dr. Murphy, Thompson has anxiety disorder with adjustment disorder and alcoholism. Tr. p. 72. When explaining Thompson's anxiety disorder, Dr. Murphy explained that Thompson " was very, very concerned, very upset, very worried and there was also a good bit of depression when [Thompson] presented and it was all related to the accident . . . ." Id. Dr. Murphy believed Thompson was making progress because " she obviously has not had any recidivism with regard to alcohol[,] . . . she has been attending the AA meetings[,] and she has been adhering to all of the expectations that we set within therapy." Id. at 73. According to Dr. Murphy, incarceration would not advance Thompson's ability to overcome her alcoholism or rebuild her life. Id. at 76.
In determining Thompson's sentence, the court identified three aggravators: (1) the harm, injury, or loss suffered by the victims in Counts 1 and 2; (2) the amount of alcohol Thompson consumed and the fact that one of her prescribed medications would intensify the effect of alcohol consumption; and (3) Thompson's history of delinquent or criminal activity, which includes a previous conviction for driving while intoxicated. Id. at 98-99; Appellant's App. p. 12. The court also found two mitigators: (1) Thompson had shown that she would respond well to short-term imprisonment or probation and (2) Thompson had only one previous conviction. Tr. p. 99; Appellant's App. p. 12. The court concluded that the aggravators outweighed the mitigators.
The trial court sentenced Thompson to three years for Count I and three years for Count II. Appellant's App. p. 12. The court also sentenced Thompson to 180 days for Count 3 and 180 days for Count 4. Id. at 12-13.
The State requested that Thompson's sentences for Counts 1 and 2 be imposed consecutively for a total executed sentence of six years in the Department of Correction. Tr. p. 89. Thompson disagreed, citing the restrictions imposed on consecutive sentences by Indiana Code section 35-50-1-2(c). Id. at 92-93. The State responded that the counts to which Thompson pled guilty were " crimes of violence" pursuant to Section 35-50-1-2(c).
The court ordered the sentences to be served consecutively, for a total of seven years. Id. The first five years of the sentence was ordered to be executed at the DOC with the remaining two years suspended to probation. Id. The court also ordered Thompson to pay $9,777.92 ...