ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JERRY T. DROOK STEVE CARTER
Carmel, Indiana Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
AARON RODRIGUEZ, )
vs. ) No. 49A02-0207-CR-549
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-0109-CF-180372
April 7, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Aaron Rodriguez (Rodriguez), appeals the sentence imposed on him by the trial
We reverse and remand for resentencing.
Rodriguez raises two issues on review, which we restate as follows:
1. Whether the trial court properly evaluated his aggravating and mitigating factors
when it imposed an enhanced sentence.
2. Whether the trial court imposed a manifestly unreasonable sentence.
FACTS AND PROCEDURAL HISTORY
On September 8, 2001, at approximately 4:30 p.m., Indianapolis Police officers were dispatched
to a personal injury accident on East Raymond Street at the I-65 northbound
exit ramp involving a teal colored Honda Civic and a brown, full sized
Ford truck. Dispatch advised the officers that a person was possibly trapped
in one of the vehicles. Officer Sparks, a South District Accident Investigator,
arrived on the scene and observed a teal colored Honda Civic on the
eastern median of the intersection with severe damage to the drivers side.
Then, he saw a brown Ford F-250 pickup truck on the western median
of the intersection.
Officer Sparks identified the driver of the Honda Civic as Kristi Broughton (Broughton)
and the driver of the Ford truck as Rodriguez. Broughton was extricated
from her vehicle by the Indianapolis Fire Department and transported to Wishard Memorial
Hospital in extremely critical condition. Officer Sparks attempted to speak to Rodriguez,
but was unable to do so due to the fact that Rodriguez spoke
little or no English. At this time, a Spanish-speaking officer was requested.
Detective Alan Leinberger (Leinberger) responded to the scene as the Spanish translator.
Upon his arrival, Leinberger spoke with Rodriguez. Leinberger observed that Rodriguezs balance
was unsteady, his eyes were bloodshot, his manual dexterity was poor, and his
speech was slow and slurred. Leinberger also smelled the strong odor of
an alcoholic beverage emanating from Rodriguezs breath. At this time, Leinberger advised
Rodriguez of his Miranda rights, to which Rodriguez stated that he understood.
Leinberger then proceeded to ask Rodriguez what happened.
Rodriguez stated that he was driving his employers truck and was traveling eastbound
on East Raymond Street towards the intersection of the I-65 northbound exit ramp.
First, he stated that the automatic traffic light was green and then
he stated that it was yellow. Rodriguez continued through the intersection and
collided with Broughton. He thought that he was only going between thirty
and thirty-five miles per hour. Leinberger asked Rodriguez if he consumed any
alcoholic beverages on this day of the accident. Rodriguez claimed that he
drank two beers at approximately 7:00 a.m. and some water.
Based on this information, Leinberger asked Rodriguez to submit to field sobriety tests
and Rodriguez agreed. Leinberger administered the Horizontal Gaze Nystagmus test, the One-Leg-Stand,
and the Nine-Step Walk and Turn. Rodriguez failed all three tests.
Leinberger informed Rodriguez of the Indiana implied consent law and asked him to
submit to a blood draw. Rodriguez agreed to take a blood test.
Leinberger transported Rodriguez to Wishard Memorial Hospital where a registered nurse performed the
blood draw. During the testing, Leinberger was informed that Broughton died as
a result of the injuries that she sustained from the crash. On
September 10, 2001, Leinberger received notification from the Marion County Crime Lab that
the analysis Rodriguezs blood indicated that the blood alcohol content was 0.25% weight/volume.
Leinberger also talked to witnesses about the accident. The witnesses reported that
Rodriguez disregarded the traffic light while going eastbound and collided with Broughtons vehicle.
On September 12, 2001, the State filed an information against Rodriguez charging him
with Count I, operating a vehicle while intoxicated causing death, a Class C
felony, Ind. Code § 9-30-5-5; Count II, operating a vehicle with .08 or
more alcohol in the blood causing death, a Class C felony, I.C. §
9-30-5-5; and Count III, reckless homicide, a Class C felony, I.C. § 35-42-1-5.
On May 24, 2002, Rodriguez filed a plea agreement.
On June 14, 2002, a guilty plea hearing was held and Rodriguez pled
guilty to Count I, operating a motor vehicle while intoxicated causing death.
The plea agreement provided that in exchange for Rodriguezs plea of guilty on
Count I, the remaining charges, Counts II and III, would be dismissed.
The plea agreement also stated that the State and Rodriguez were free to
argue to the trial court for an appropriate sentence. The trial court
found that Rodriguez understood his rights and knowingly and voluntarily waived his rights.
Therefore, the trial court accepted the guilty plea and the terms of
the plea agreement and entered a judgment of conviction on Count I.
Thereafter, the trial court conducted the sentencing hearing. After considering the Pre-Sentence
Investigation report and all of the evidence presented, the trial court imposed, in
pertinent part, the following sentence:
Let me first extend my condolences to the family. Everyone talked a
lot about Kristi Broughtons short life but I think she lived about three
lifetimes in that time.
. She was a very giving person
I think. Sometimes I think I am busy with my job and
family and balancing all of that but I was very impressed. I
think that it is something she would leave for all of you to
remember. Not just to make everyday count, I think she was probably
a person who made every minute count is what it sounds like.
That is an important lesson for everybody to remember as they go forth
from here. Part of me, I will just speak honestly and probably
more from my heart than from any law book at this point.
Part of me feels that I cant impose the best sentence because I
dont think the legislature has done a very good job with this crime.
I think that you are in a unique position, having a pretty
powerful, potentially after November even more powerful legislator in your family. I
would encourage you to work towards that end to consider that, as a
means of providing some meaning to what has happened to you.
I am also confronted though with the difficult situation because I dont know
that the law affords me the opportunity to punish Mr. Rodriguez more severely
because of the exceptional person that Kristi was. No one had to
prove to me today, the value that she brought to all of you,
the love, the tenderness, the caring and the significance of her life.
None of that is lost on me, believe me and none of your
pain is either. I am a wife, I am a mom, I
am a sister, I am a daughter, I hope I am a friend
to many people and so I feel that pain. Her circle is
ever widening[,] I think and probably goes out into the hall. But
I am not sure that the prosecution was correct in saying that I
could  punish him more because of who she was. The punishment
is for the act and the act has enough components of itself for
me to consider. So, I say this, in a way I feel
largely irrelevant up here. Nothing I do can really make much difference,
can it? Except I suppose to give you a sense of value
but I am not sure that the law really affords me that opportunity.
I say that for this reason, there are significant mitigators and I will
start with those.
. I usually[,] since it is the Defendant
who is being sentenced, let them go first and let the victim hear
what they have to say to respond. I hope, as much as
it must be hard for you in your hearts and minds, I hope
you can accept that I accept Mr. Rodriguezs remorse as genuine. Also
I think he lives with the knowledge that in a criminal way, albeit
not intentionally, but criminally, recklessly, thoughtlessly, selfishly, he killed someone. I think
he knows too the value of that person. If it had been
someone in his family, there probably wouldnt be a courtroom full of people
because they probably dont know as many people, nor are there many people
in our community who were like Kristi, that could engender this much response.
I do accept his remorse as genuine. I also accept that
he has accepted responsibility for what he has done. He does not have
a prior criminal history that is known to the Court. He did
have prior stable employment as he tried to make his way in our
There is however, I think also some significant aggravation. The one fact
that screams for higher aggravation is the blood alcohol content level. We
arent dealing with somebody who had one too many. We are dealing
with somebody who could well have had ten or twelve too many.
I dont know the math. The witnesses were all clear on whose
fault the collision was. What we had here was somebody who went
out on a binge and decided to drive and took a very precious
life in that process. The time of day is of concern to
me. The length of time that the alcohol was consumed. The
job that I have is to balance those. While there is significant
mitigation, the statutory aggravator about imposition of a reduced sentence, I think is
appropriate to consider as the defense has asked for the presumptive or a
The Court finds the most significant aggravator is the blood alcohol content.
I think there is an appropriate, probably the most significant justice or the
most significant factor that I can look at in the evaluation of justice
in the case is to consider that while Mr. Rodriguezs family will suffer
for four years, he will be returned to them at the end of
that time. To be fair, that is nothing compared to what Ms.
Broughtons family has to endure. I struggled as I sat here.
My mind has gone different places in terms of the appropriate sentence in
this case. I think based upon the level of alcohol in his
blood, the amount of alcohol he had to consume, and the significant permanent
loss to Ms. Broughtons family, coupled with the basically statutorily comparatively little loss
that his family will suffer. The Court does find that in this
case based on those facts, that the aggravated sentence of eight years is
appropriate. It will be served at the Department of Corrections [sic].DISCUSSION AND DECISION
(Transcript pp. 100-04). In addition to sentencing Rodriguez, the trial court waived
fees and costs and suspended Rodriguezs drivers license for five years. The
trial court also dismissed Counts II and III, pursuant to the plea agreement.
Rodriguez now appeals.
I. Standard of Review
We begin our review of Rodriguezs sentence by determining what standard of review
we are to use in assessing the appropriateness of his sentence. Importantly,
our scope of review changed on January 1, 2003, and now permits us
to revise a sentence if that sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate
Rule 7(B). This change in the scope of our review makes a
thorough examination of the procedures we are to employ in reviewing and revising
A. Indiana Constitution
In 1966, the Report of the Judicial Study Commission was released. It
found that our states judiciary would benefit by allowing appellate courts to revise
sentences, as the Court of Criminal Appeals in England is allowed to do.
Report of the Judicial Study Commission, Comment at 140 (1966). When
appellate courts have the power of sentence revision, more uniformity in sentencing results.
J. Eric Smithburn, Sentencing in Indiana: Appellate Review of the Trial
Courts Discretion, 12 Val.U.L.Rev. 219, 223 (1978). This uniformity has the dual
virtues of providing appropriate rehabilitation to the offender without overtaxing the corrections system.
Id. The Committees recommendations were taken up by the General Assembly,
and the voters of our state amended our Constitution on November 3, 1970.
Therefore, Article VII, Section 6 of our constitution now grants us the authority
to review and revision of sentences for defendants in all criminal cases
pursuant to rules specified by our supreme court.
B. Sentencing Statute
In the wake of the Report of the Judicial Study Commission in 1966,
appellate review of sentences was not the only change in the penal system.
In 1976, our General Assembly abolished jury sentencing by declaring that the
court shall fix the penalty of and sentence a person convicted of an
Ind. Code § 35-50-1-1 (1978); DeBose v. State, 270 Ind. 675,
676, 389 N.E.2d 272, 273 (1979). These weighty changes to the Penal
Code became effective on October 1, 1977. DeBose, 270 Ind. at
676, 389 N.E.2d at 273. The Penal Code also provided specific directives
which the trial court must consider in determining a proper sentence to impose
for any crime. Smithburn, supra, at 221. That statute read as
In determining what sentence to impose for a crime, the court shall consider
the risk that the person will commit another crime, the nature and circumstances
of the crime committed, and the prior criminal record, character, and condition of
I.C. § 35-4.1-4-7 (1978).
This standard set of factors was designed to bring uniformity to sentencing.
Put another way, similar conduct of similar offenders should be accorded similar treatment.
U.S. v. Williams, 891 F.2d 962, 967 (1st Cir.). Uniformity in
sentencing was and is viewed as beneficial in avoiding disrespect for the judicial
process and potentially for the law itself. Smithburn, supra, at 221.
At least one commentator has declared that treating similar offenders the same serves
to deter unlawful conduct by publicizing the sentences that will be imposed for
certain crimes. Cynthia Lee, The Sentencing Courts Discretion to Depart Downward, 23
Ind.L.Rev. 681, 687 (1990).
The statute has seen numerous revisions. For instance, it was amended in
1984 to require that trial courts take into account whether the victim of
the offense was at least sixty-five years of age. See I. C.
§ 35-38-1-7 (1984). The statute was again changed in 1985 to compel
courts to consider an oral or written statement made by the offenders victim.
See I.C. § 35-38-1-7 (1985). In 1987, the statute was expanded
to require that trial courts consider whether the victim was younger than twelve
years of age. See I.C. § 35-38-1-7 (1987). In 1989, a
section requiring the trial court to reflect on whether the defendant had violated
a protective order during the commission of his offense was added. See
I.C. § 35-38-1-7 (1989) . Finally, in 2002, a section was added that
required trial courts to consider whether the crime was committed in the presence
or within the hearing of a person under the age of eighteen.
See I.C. § 35-38-1-7.1.
It is also apparent that, while the General Assembly added specific considerations that
trial courts had to make in determining a sentence, the nature and circumstances
of the offense and the character of the offender were always the primary
considerations. For example, the first amendment made to the statute in 1984
required that courts take into account the age of the victim if the
victim was at least sixty-five years of age. This is simply a
circumstance of the offense, albeit stated more specifically. By requiring that courts
take into account this particular circumstance, the General Assembly was indicating its belief
that crimes in which the circumstances included a senior citizen victim are more
deserving of scrutiny.
The provision passed in 1989 compelling the trial court to consider whether the
defendant committed the crime while under the restriction of a protective order is
especially enlightening. One could argue that the existence of a protective order
is a circumstance of the offense, but a case could also be made
that it impacts the character of the offender as well. An offender
who flouts a protective order shows a willing disregard for our states court
system. Similar arguments can be made for the other requirements of I.C.
§ 35-38-1-7.1. In short, the conditions added to the statute over the
years simply amplify its two key considerations: the nature of the offense and
character of the offender.
C. Court Rule
After Indianas citizens granted us the authority to revise sentences, our supreme court
adopted a rule defining the scope of our review. Former Ind. Appellate
Rule 2effective January 1, 1978stated that we were not to revise a sentence
authorized by statute except where such sentence is manifestly unreasonable in light of
the nature of the offense and the character of the offender. See
Ind. Appellate Review of Sentences Rule 2 (1980).
According to Professor Smithburn, the genesis of Indianas appellate review rule was the
American Bar Association Standards for Sentencing Alternatives and Procedures, which noted that the
key factors in determining an appropriate sentence were the gravity of the offense,
the character of the offender and the need for protection of the public.
Smithburn, supra, at 245. Thus, it seems that our supreme court
and General Assembly were writing on the same page, keeping the nature and
circumstances of the offense and the character of the offender as the focus
in sentencing decisions.
The view that our General Assembly and supreme court were of one mind
is confirmed by our supreme courts sentence revision decisions that followed the enactment
of App. R. 2. In McNew v. State, a defendant who was
convicted for robbery as a class A felony received a sentence of forty
years. 271 Ind. 214, 215, 391 N.E.2d 607, 609 (1979). The
trial court added ten years to the presumptive thirty-year sentence because of McNews
prior criminal activity and the seriousness of the crime, which involved McNews shooting
a bystander during the robbery. Id. McNew argued that the trial
courts sentence was manifestly unreasonable. Our supreme court used the factors listed
in I.C. § 35-4.1-4-7 when reviewing McNews sentence and noted that the legislature
intended that the nature and circumstances of the crime committed be considered when
sentencing a defendant. Id. at 220, 391 N.E.2d at 612. Likewise,
prior criminal activity was to be considered. Id. Our supreme court
acknowledged that inasmuch as the trial court used a charge on which McNew
had been acquitted as prior criminal activity to arrive at McNews sentence, this
was error, as an acquittal isby definitiona finding of no criminal activity.
Id. Nevertheless, the McNew court held that we cannot say that the
sentence is manifestly unreasonable in light of the nature of the offense and
the character of the offender because the trial court used another of the
legislatures prescribed aggravating or mitigating factors: the nature and circumstances of the crime
Thus, from the beginning of our constitutional authority to revise sentences, appellate courts,
when exercising their constitutional responsibility to review sentences have focused and must continue
to focus on the statutorily required aggravators and mitigators, as these are merely
amplifications of our appellate rule calling for appraisal of sentences based on the
nature and circumstances of the offense and character of the offender. App.
R. 7(B). By doing so, Indiana can continue to advance
direction of consistency in sentencing. Joel M. Schumm, Recent Developments in Indiana
Criminal Law and Procedure, 35 Ind. L. Rev. 1347, 1368 (2002).
II. Imposition of an Enhanced Sentence
Rodriguez argues that he was improperly sentenced. Specifically, Rodriguez contends that the
trial court improperly used aggravating factors to enhance his sentence. Additionally, Rodriguez
maintains that the trial court erred when it failed to recognize all of
the proffered mitigating factors when imposing his enhanced sentence.
A. Aggravating Circumstances
Rodriguez argues that the trial court improperly relied on aggravating factors to enhance
his sentence. Specifically, Rodriguez claims that the trial court improperly relied on
the following as aggravating circumstances: the impact of the crime on the
victims family, the circumstance that imposing a reduced sentence would depreciate the seriousness
of the crime, and his blood alcohol content level (i.e. the use of
an element of the offense, Rodriguezs intoxication, as an aggravator).
1. The Impact on the Victims Family
Rodriguez argues that the trial court improperly considered the impact of the death
of Broughton on her family as an aggravator. In its sentencing statement,
the trial court described the impact on the victims family as a significant
permanent loss. (Tr. p. 104). The State concedes that the trial courts
reliance upon this factor may have been improper in this case. We
Under normal circumstances, the impact upon a victims family is not a proper
aggravating circumstance for purposes of sentencing. See Bacher v. State, 686 N.E.2d
791, 801 (Ind. 1997). In Bacher, our supreme court explained that because
the impact on family members accompanies almost every case dealing with the death
of a victim, it is not appropriate to consider that impact as an
aggravating factor unless that impact was of such a destructive nature not normally
associated with the commission of the offense in question and the impact was
foreseeable to the defendant. Id. Here, Rodriguez was charged with operating
a vehicle while intoxicated causing death death being an essential element of
the offense. Therefore, it is not appropriate to consider the impact of
the victims death on her family, because death is normally associated with the
commission of the offense in question; although its impact was not necessarily foreseeable
to the defendant. See id. Accordingly, we find that the trial
court improperly used the impact on the victims family as an aggravating circumstance.
Imposition of a Reduced Sentence Depreciates
the Seriousness of the Crime
Next, Rodriguez argues that the trial court improperly relied upon the fact that
the imposition of a reduced sentence would have depreciated the seriousness of the
crime as an aggravating factor. Specifically, Rodriguez asserts that there is nothing
in the sentencing statement indicating that the trial court considered imposing less than
the presumptive sentence and therefore, reliance on this aggravating circumstance was improper.
The State concedes that this aggravator was improper because this aggravating circumstance is
only available when the trial court is considering whether to impose a sentence
lower than the presumptive sentence. Price v. State, 725 N.E.2d 82, 85
(Ind. 2000). Accordingly, we find that the trial court improperly used the
fact that the imposition of a reduced sentence would reduce the seriousness of
the crime as an aggravating circumstance. See id.
Rodriguez further argues that the trial court improperly used an element of the
offense for which he was charged as an aggravator. Specifically, he claims
that the trial court improperly used his intoxication as an aggravating circumstance when
it stated that Rodriguezs level of intoxication scream[ed] for high aggravation. Tr.
Our supreme court has determined that a fact, which is a material element
of a crime, may not also constitute an aggravating circumstance to support an
enhanced sentence. Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996); Stewart
v. State, 531 N.E.2d 1146, 1150 (Ind. 1988). However, particularized circumstances of
a criminal act may constitute separate aggravating circumstances. Morgan, 675 N.E.2d at
Here, the offense to which Rodriguez pled contained the element of intoxication.
However, the circumstances here show that Rodriguezs blood alcohol content was nearly three
times the legal limit when he was tested shortly after the accident.
Moreover, the incident occurred at a congested area during rush hour traffic.
Under these facts and circumstances, we conclude that the trial court could properly
consider Rodriguezs clear abuse of alcohol and the time of day of Rodriguezs
conduct together as a separate and proper aggravating circumstance. Thus, there was
no error with respect to this issue.
B. Mitigating Circumstance
Rodriguez also claims that the trial court failed to take into account a
significant mitigating circumstance. Specifically, Rodriguez maintains that the trial court failed to
consider the hardship imposed on his dependents by his incarceration.
Here, the trial courts oral sentencing statement indicated, while Mr. Rodriguezs family will
suffer for four years, he will be returned home to them at the
end of that time. To be fair, that is nothing compared to
what Ms. Broughtons family has to endure. (Tr. p. 103-4). Nonetheless, it
does not appear the trial court considered the hardship imposed on his dependents
by his incarceration as a significant mitigating circumstance.
The trial court is not required to find mitigating factors or to accept
as mitigating the circumstances proffered by the defendant. Powell, 751 N.E.2d at
317. Specifically, the trial court is not required to find that a
defendants incarceration would result in undue hardship upon his dependents. See Allen
v. State, 743 N.E.2d 1222, 1237 (Ind. Ct. App. 2001), rehg denied, trans.
denied. Only when the trial court fails to find a significant mitigator
that is clearly supported by the record is there a reasonable belief that
it was overlooked. Kien v. State, 728 N.E.2d 398, 415 (Ind. Ct.
In this case, the trial court did not mention in its oral sentencing
statement the hardship on Rodriguezs dependents due to his incarceration as a significant
mitigating circumstance. However, the record indicates that Rodriguezs wife was working and
that their children have lived with Rodriguezs mother and two brothers in Mexico
since 1999. Therefore, we find that trial court properly declined to attach
any significant weight to this proffered mitigating circumstance. See Powell, 751 N.E.2d
at 317; See also, Allen, 743 N.E.2d at 1237.
III. Inappropriate Sentence
As discussed infra, this court will not revise a sentence authorized by statute,
unless it is inappropriate in light of the nature of the offense and
the character of the offender. See Ind. Appellate Rule 7(B); Kien, 782
N.E.2d at 416. When considering the appropriateness of the sentence for the
crime committed, courts should initially focus upon the presumptive sentence. Hildebrandt v.
State, 770 N.E.2d 355, 361 (Ind. Ct. App. 2002), trans. denied. Trial
courts may then consider deviation from the presumptive sentence based upon a balancing
of the factors which must be considered pursuant to I.C. § 35-38-1-7.1(a) together
with any discretionary aggravating and mitigating factors found to exist. Hildebrandt, 770
N.E.2d at 361.
The presumptive sentence is meant to be the starting point for the trial
courts consideration of the sentence that is appropriate for the crime committed.
See Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002). In the
present case, Rodriguez pled guilty to the charge of operating a vehicle while
intoxicated causing death, a Class C felony. The nature of the offense
specifically takes into account that a death occurred as a result of driving
while intoxicated. See I.C. § 9-30-5-5(a)(3). The presumptive sentence for a
Class C felony is four years, with not more than four years added
for aggravating circumstances, and not more than two years subtracted for mitigating circumstances.
See I.C. § 35-50-2-6.
As set forth above, the trial court erred in considering two of the
three aggravating factors it relied upon to enhance Rodriguezs sentence. Additionally, four
valid and significant mitigating circumstances were found in considering the sentence that should
be imposed. As a result, and with the acknowledgement that this was
an extraordinarily difficult sentencing for the trial court, and hardly less so for
this court, we conclude that the trial court did not and could not
appropriately weigh the aggravating and mitigating circumstances to determine that the aggravators outweighed
the mitigators so as to warrant the maximum eight-year sentence.
The trial court properly identified several significant mitigating circumstances in its oral sentencing
statement. The significant mitigating circumstances were as follows: 1) Rodriguez did not
have a prior criminal record; 2) he was remorseful for what he did;
3) he took responsibility for his actions by pleading guilty; and 4) he
possessed prior stable employment.
Furthermore, it is important to note that Rodriguez entered into a plea agreement
with the State. Under the terms of the plea agreement, Rodriguez agreed
to plead guilty to operating a vehicle while intoxicated causing death, a Class
C felony, in exchange for the dismissal of Count II, operating a vehicle
with .08 or more alcohol causing death, a Class C felony, and Count
III, reckless homicide, a Class C felony. Plea agreements are a well-established
part of our system of justice. The best interests of law enforcement,
through the prosecuting attorney, and of the individual defendant involved are represented by
plea agreements. Plea agreements are subject to review and approval by the
judiciary. See I.C. § 35-35-3-3. Here, we acknowledge that the trial
court accepted Rodriguezs guilty plea for operating a vehicle while intoxicated causing death
as a Class C felony.
Additionally, we find that Rodriguezs character does not merit the maximum allowable sentence
of eight years. Our supreme court has determined that the maximum possible
sentences are generally most appropriate for the worst offenders. Buchanan v. State,
767 N.E.2d 967, 973 (Ind. 2002). Here, Rodriguez was not the very
worst offender because of his lack of criminal history. The Indiana General
Assembly has determined that a defendants prior or lack of criminal history is
so significant that trial courts shall consider it when determining what sentence to
impose. See I.C. § 35-38-1-7.1(a); Hildebrandt, 770 N.E.2d at 361. Indiana
Code § 35-38-1-7.1 appropriately encourages leniency towards defendants who have not previously been
through the criminal justice system. Biehl v. State, 738 N.E.2d 337, 339
(Ind. Ct. App. 2000), trans. denied. The other three valid and significant
mitigating circumstances also support a reduction in Rodriguezs sentence. Rodriguez showed genuine
remorse for his actions and he accepted responsibility for his actions. Rodriguez
was also gainfully employed before the accident.
Starting at the presumptive sentence of four years, and after weighing the single
proper aggravator and four significant mitigators, we find the trial courts sentence of
eight years inappropriate. Accordingly, we reduce Rodriguezs sentence to three and one-half
Based on the foregoing, we conclude that the trial court improperly evaluated Rodriguezs
aggravating and mitigating circumstances and, therefore, the sentence was inappropriate. Accordingly, we
reduce Rodriguezs sentence at the Indiana Department of Correction to three and one-half
BAKER, J. and MATHIAS, J. concur.
Oral argument was held in this case on February 6, 2003 at
Wabash College in Crawfordsville, Indiana.
Footnote: On July 19, 2002, our supreme court amended Appellate Rule 7(B) effective
January 1, 2003. The rule is directed to the reviewing court and
sets forth the standard for that review. That review is made as
of the date the decision or opinion is handed down. Accordingly, although
the sentence here was imposed prior to January 1, 2003, our review has
taken place as of this date and the inappropriate test is therefore applied.
Footnote: This section was amended and recodified as Indiana Code section 35-38-1-7.1
Footnote: However, it appears that the trial court enhanced Rodriguezs sentence to the
maximum of eight years in an attempt to acknowledge the significant impact of
the death of the victim on her family and friends. We believe
that this is an issue that our legislature should address. I.C. §
9-30-5-5(a)(3) states, a person who causes the death of another person when operating
a motor vehicle while intoxicated commits a Class C felony.