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Burnett v. State

Court of Appeals of Indiana

April 19, 2017

Wendy Burnett, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

         Appeal from the Marion Superior Court The Honorable John Razumich, Judge Pro Tempore Trial Court Cause No. 49G12-1508-CM-29371

          Attorney for Appellant Valerie K. Boots Marion County Public Defender Agency Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          Baker, Judge.

         [¶1] Wendy Burnett appeals her conviction of Operating a Vehicle While Intoxicated Endangering a Person, [1] a Class A Misdemeanor. She argues that there was insufficient evidence to support her conviction for operating a vehicle while intoxicated endangering a person, that the trial court erred when it did not conduct an indigency hearing before imposing probation fees, and that her probation fees were improperly imposed by the probation department. We agree on all arguments, but as to her conviction, we find sufficient evidence supporting the lesser-included offense of Class C misdemeanor operating a vehicle while intoxicated.[2] We reverse and remand for further proceedings and with instructions to vacate Burnett's Class A misdemeanor conviction and to enter judgment for Class C misdemeanor operating a vehicle while intoxicated. As for the fees owed by Burnett, the judgment of the trial court is vacated and remanded for further proceedings.


         [¶2] On August 18, 2015, Burnett was riding in the passenger seat of a Chevrolet Impala in Indianapolis when the driver of the vehicle struck another vehicle. Burnett had fallen asleep before the collision, but she woke up upon the impact and jumped out of the vehicle. As a woman who lived nearby started yelling about the accident, Burnett got back into the vehicle's passenger seat, and the driver drove away from the scene. The driver stopped the vehicle not far from the scene of the accident, and at some point, Burnett got into the driver's seat and drove back past the scene; by then, police were there beginning an investigation.

         [¶3] Officer Matthew Fortney of the Indianapolis Metropolitan Police Department conducted a traffic stop on the Impala, which at the time was being driven by Burnett. Officer Fortney observed that Burnett's breath smelled of alcohol, that her eyes were glassy, and that her speech was slow. Burnett told Officer Fortney that she had not been driving the vehicle at the time of the accident.

         [¶4] Officer Vincent Marshall conducted an investigation to determine whether Burnett was driving under the influence. He could hear her slur her speech, and when he asked whether she had been drinking or consuming alcohol, she stated that she had consumed approximately three beers before the officers arrived. Officer Marshall had Burnett complete the standard field sobriety tests, during which he observed that her eyes were red and watery and that her breath smelled of alcohol. The officer asked Burnett to take a portable breath test, which she declined to do. He then read the Indiana Implied Consent law, and Burnett refused to take a certified chemical test. Officer Marshall formed an opinion that Burnett was intoxicated based on her performance on the field sobriety tests and his observations, and he arrested her.

         [¶5] The State charged Burnett with one count of Class A misdemeanor operating a vehicle while intoxicated endangering a person, and two counts of Class B misdemeanor leaving the scene of an accident. On September 14, 2016, a bench trial took place. During the trial, the trial court admitted evidence of two phone calls that Burnett had made from jail to her son. In one of the phone calls, Burnett said that she had been in the car and dozed off and woke up to an accident, and that her reaction was to get in the car and drive away. The trial court found Burnett guilty of operating a vehicle while intoxicated endangering a person but not of leaving the scene of an accident.

         [¶6] After a sentencing hearing that began on September 14, 2016, and concluded on September 26, 2016, the trial court sentenced Burnett to 365 days, with five days executed and the remainder suspended to probation. Burnett was ordered to attend the Advocates Against Impaired Driving (AAID) destructive decision panel and to submit to an alcohol evaluation test and follow recommendations for treatment. The trial court ordered Burnett to pay a $200 countermeasure fee, a $250 alcohol drug services fee, $183.50 in court costs, and a $16.50 fine. The trial court stated that the court costs and fine "are in addition to your various probation fees that are required." Tr. p. 76. The trial court also stated that Burnett's probation would become non-reporting after she finished the terms and conditions of her probation, and that

Part of those terms are repaying those things as soon as you are able to. So, I do encourage you to get those done sooner rather than later. My experience with probation has been the faster that they get paid, the faster they are likely to not pay attention to you so much, especially if you're not causing problems for them otherwise.


         [¶7] Defense counsel asked the trial court for a determination on whether Burnett was indigent for purposes of appeal, stating that Burnett makes under $20, 000 per year. When Burnett said that she would be interested in pursuing an appeal, the trial court stated that defense counsel "summarized your financial situation. Is that correct? Is that your income?" Id. at 78. Burnett replied affirmatively. The trial court then found ...

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