Antione Nelson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Jun 02 2015, 9:15 am 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, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ryan W. Tanselle Gregory F. Zoeller Capper Tulley & Reimondo Attorney General of Indiana Brownsburg, Indiana Jonathan R. Sichtermann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Antione Nelson, June 2, 2015

Appellant-Defendant, Court of Appeals Case No. 32A04-1409-CR-454 v. Appeal from the Hendricks Superior Court. State of Indiana, The Honorable Karen M. Love, Judge. Appellee-Plaintiff. Cause No. 32D03-1404-CM-314

Riley, Judge Court of Appeals of Indiana | Memorandum Decision | 32A04-1409-CR-454 | June 2, 2015 Page 1 of 8

STATEMENT OF THE CASE

[1] Appellant-Defendant, Antione D. Nelson (Nelson), appeals his sentence

following his conviction for driving while suspended, a Class A misdemeanor,

Ind. Code § 9-24-19-2 (2013). [2] We affirm.

ISSUE

[3] Nelson raises one issue on appeal, which we restate as follows: Whether

Nelson’s sentence is inappropriate in light of the nature of the offense and his

character.

FACTS AND PROCEDURAL HISTORY

[4] At approximately 10:25 a.m. on April 25, 2013, Officer Aaron Teare (Officer

Teare) of the Plainfield Police Department observed a blue Dodge Caravan

stopped at a red light at the intersection of Stafford Road and State Road 267 in

Plainfield, Hendricks County, Indiana. Officer Teare ran a routine license plate

check on the vehicle and learned that the plate was actually registered to a

white 1999 Pontiac Bonneville and had expired eleven days earlier. As a result,

Officer Teare initiated a traffic stop. [5] The driver of the blue van—later identified as Nelson—provided Officer Teare

with a Missouri identification card, explained that he had an Indiana

identification card on file, and admitted that he did not have proof of insurance.

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Nelson also indicated that he had an active warrant out of California for auto

theft. When Officer Teare searched Nelson’s information through the Indiana

Bureau of Motor Vehicles, the records indicated that Nelson had only a

learner’s permit, which had been suspended and subsequently expired on

September 30, 2010. [6] On May 1, 2013, the State filed an Information, charging Nelson with Count I,

driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2. The State

also filed a Complaint and Summons, charging Nelson with Count II, operating

a vehicle without proof of financial responsibility, a Class A infraction, I.C. § 9-

25-8-2(a); Count III, learner’s permit violation, a Class C infraction, I.C. §§ 9-

24-7-4; -6; Count IV, operating a vehicle with a registration number belonging

to another vehicle, a Class C infraction, I.C. §§ 9-18-2-27(a)(1); -40(b); and

Count V, operating a vehicle with an expired license plate, a Class C infraction,

I.C. §§ 9-18-2-7(d); -40(b). [7] On September 18, 2014, the trial court conducted a bench trial. As a defense,

Nelson insisted that he had not been driving the vehicle but was simply riding

with his friend. However, footage from Officer Teare’s dash camera clearly

revealed that Nelson was the driver. At the close of the evidence, the trial court

found Nelson guilty on all Counts. On September 22, 2014, the trial court held

a sentencing hearing. After merging Counts II through V into Count I, driving

while suspended as a Class A misdemeanor, the trial court ordered Nelson to

spend thirty days in the Hendricks County Jail and ordered the suspension of

his license for 180 days. On September 26, 2014, Nelson filed an emergency

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motion to stay his sentence pending appeal, which the trial court denied on

September 30, 2014. However, on October 8, 2014, the trial court granted

Nelson’s motion to stay the suspension of his driving privileges pending appeal. [8] Nelson now appeals. Additional facts will be provided as necessary.1

DISCUSSION AND DECISION

[9] Nelson claims that his sentence is inappropriate based on the nature of the

offense and his character. In this case, Nelson’s sentence of incarceration for

thirty days and license suspension for 180 days was well within the statutory

parameters for a Class A misdemeanor. See I.C. § 35-50-3-2 (2013) (providing

that a Class A misdemeanor is punishable by imprisonment “for a fixed term of

not more than one (1) year”); I.C. § 9-24-19-5(a) (“In addition to any other

penalty imposed for a conviction under this chapter, the court shall recommend

that the person’s driving privileges be suspended for a fixed period of not less

than ninety (90) days and not more than two (2) years.”). Nevertheless, even

where the trial court imposes a statutorily permissible sentence, our court may

revise the sentence if, “after due consideration of the trial court’s decision,” we

1 The amended version of Indiana Administrative Rule 9 became effective as of January 1, 2015, and requires, in part, that the “[c]omplete Social Security Numbers of living persons” be excluded from public access. Ind. Admin. Rule 9(G)(2)(f). Here, several of the exhibits contain unredacted Social Security Numbers. As we acquired jurisdiction over this case on October 2, 2014, prior to the applicability of amended Administrative Rule 9(G), we would simply remind the parties to take notice of its requirements for future compliance.

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find “that the sentence is inappropriate in light of the nature of the offense and

the character of the offender.” Ind. Appellate Rule 7(B). [10] Whether we determine that a sentence is appropriate “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.” Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). On review, we focus on the length of

the aggregate sentence and how it is to be served. Id. Ultimately, our goal is

“to attempt to leaven the outliers[] and identify some guiding principles for trial

courts and those charged with improvement of the sentencing statutes, . . . not

to achieve a perceived ‘correct’ result in each case.” Id. [11] We first note that Nelson has already completed his thirty-day period of

incarceration. As our court previously explained,

where the principal questions at issue cease to be of real controversy between the parties, the errors assigned become moot questions and this court will not retain jurisdiction to decide them. Stated differently, when we are unable to provide effective relief upon an issue, the issue is deemed moot, and we will not reverse the trial court’s determination where absolutely no change in the status quo will result. Bell v. State, 1 N.E.3d 190, 192 (Ind. Ct. App. 2013). Even if we were to agree

with Nelson that a reduction of his thirty-day sentence is appropriate, it would

result in no change to the status quo. Therefore, we find that this issue is moot. [12] Nonetheless, while “moot cases are usually dismissed, Indiana courts have long

recognized that a case may be decided on its merits under an exception to the

general rule when the case involves questions of ‘great public interest.’

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Typically, cases falling in the ‘great public interest’ exception contain issues

likely to recur.” In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App.

2002) (internal citation and quotation marks omitted). Here, Nelson does not

assert that his sentence involves a question of great public interest. Rather, he

argues that the sentence should be reduced, with the reduction to be applied “to

his pending perjury case in Hendricks County, as he was taken in[to] custody

on both this matter at hand and the pending perjury case after his sentencing

hearing.” (Appellant’s Br. p. 8). The record contains no information regarding

the pending perjury case. Furthermore, we find the fact that the trial court

imposed a sentence that is far less than the statutory maximum for a Class A

misdemeanor hardly qualifies as a matter of great public interest. [13] On the other hand, because the trial court stayed the suspension of Nelson’s

driving privileges pending appeal, this issue is properly before our court. On

appeal, Nelson requests that we reduce the suspension of his driving privileges

from 180 days to ninety days—i.e., the statutory minimum. See I.C. § 9-24-19-

5(a). Nelson contends that he “was not engaged in dangerous, risky, reckless,

or otherwise unsafe driving” and that “he has not been in trouble for years and

that he was living on his own and raising a child.” (Appellant’s Br. pp. 6-7).

According to Nelson, these considerations warrant a lesser penalty. We

disagree. [14] The nature of the offense is that Nelson was driving a vehicle on a learner’s

permit that was both suspended and expired. He did not have proof of

insurance, and he was using an expired license plate that was registered to

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another vehicle. As to character of the offender, we find that Nelson has a

substantial history of non-compliance with Indiana’s driving laws. In March of

2005, Nelson was issued a learner’s permit, which was suspended just two

months later for failure to pay on a seatbelt violation. In September of 2009,

Nelson renewed his learner’s permit, which was again suspended in April of

2010. Since that time, he has not held a valid license or permit; yet, he has

continued to drive. Since 2010, Nelson has been convicted of driving on that

suspended learner’s permit on six different occasions. Additionally, Nelson

was cited numerous times for failing to file insurance and for failing to appear

for a driver safety program. [15] We find that Nelson’s habitual disregard for the law is further exhibited by the

fact that he has not attempted to resolve his outstanding auto theft warrant in

California. Moreover, unaware of the fact that Officer Teare had video-

recorded the entire traffic stop, Nelson flagrantly lied to the court about the fact

that he was the driver of the vehicle. Thus, we find that Nelson’s 180-day

license suspension is appropriate given the nature of the offense and his

character.

CONCLUSION

[16] Based on the foregoing, we conclude that Nelson’s claim that his thirty-day

sentence is inappropriate is moot; however, we conclude that his 180-day

driver’s license suspension is appropriate in light of the nature of the offense

and character of the offender.

Court of Appeals of Indiana | Memorandum Decision | 32A04-1409-CR-454 | June 2, 2015 Page 7 of 8 [17] Affirmed. [18] Bailey, J. and Barnes, J. concur

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