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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.

FILED
Feb 29 2012, 9:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: TERRY E. IACOLI Martinsville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ADAM SCHAFER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.

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No. 55A01-1108-CR-386

APPEAL FROM THE MORGAN SUPERIOR COURT The Honorable G. Thomas Gray, Judge Cause No. 55D01-1003-FB-69

February 29, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Adam Schafer appeals his sentence for Class B felony causing death when operating a motor vehicle with a schedule I or II controlled substance in his blood. We affirm. Issues Schafer raises two issues, which we restate as: I. whether the trial court abused its discretion in sentencing him; and whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. Facts On September 10, 2009, shortly before 6:00 a.m., Bambi Brazzel was driving northbound on State Road 37 in Morgan County near Martinsville and called 911 to report an impaired driver. Brazzel reported that the driver of a Ford truck was behaving erratically by driving onto the shoulder, speeding, weaving in traffic, and stopping in the middle of an intersection at a red light. Morgan County Sheriff`s Deputy Mark Wilson heard the dispatch regarding the impaired driver and pulled out onto northbound State Road 37. As Deputy Wilson neared the intersection of State Road 37 and State Road 252, he saw a truck ahead of him in the left lane approaching the intersection, saw that the light was red, and saw other vehicles stopped for the red light. Schafer, who was driving the truck, did not apply his brakes, and Deputy Wilson saw the intersection just explode[]. Tr. p. 153. Schafer`s vehicle struck a motorcycle driven by James Fisher, and Fisher was catapulted 110 feet. Fisher died as a result of the collision. Two vehicles 2

II.

in front of Fisher`s motorcycle were also damaged. Schafer`s vehicle continued through the intersection and stopped approximately fifty yards north on State Road 37. Officer John Richards of the Martinsville Police Department transported Schafer to the hospital for a blood draw. While at the hospital, Officer Richards overheard Schafer talking on his cell phone. Schafer was informing someone that he had been in a crash and that it had ruined his day. Tr. p. 231. Schafer seemed aloof and more concerned that this crash had ruined his day than with the condition of the other drivers. Id. The blood draw revealed the presence of marijuana and methadone in Schafer`s blood.1 The parties stipulated that Schafer`s driver privileges, license or permit was suspended or revoked at the time of the crash. State`s Exhibit 22. The State charged Schafer with Count I, Class B felony causing death when operating a motor vehicle with a schedule I or II controlled substance in his blood; Count II, Class C felony causing death when operating a motor vehicle while intoxicated; Count III, Class C felony causing death when operating a motor vehicle with a schedule I or II controlled substance in his blood; Count IV, Class A infraction driving while suspended; Count V, Class B felony causing death when operating a motor vehicle while intoxicated (enhancement to Count II); and Count VI, Class B felony causing death when operating a motor vehicle with a schedule I or II controlled substance in his blood (enhancement to Count III). A jury found Schafer guilty of Counts I through IV, and the State did not proceed on Counts V and VI.

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At the time of the crash, Schafer was on his way to a methadone clinic for treatment. The charges relate to the marijuana in his blood.

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At the sentencing hearing, the trial court merged Counts II and III with Count I. The trial court found no mitigating factors and found Schafer`s criminal history and the nature of the offense as aggravating factors. The trial court sentenced Schafer to eighteen years for Count I and imposed no additional time or fines for Count IV. Schafer now appeals. Analysis I. Abuse of Discretion Schafer argues that the trial court abused its discretion by failing to consider certain proposed mitigators and by considering the nature of the offense as an aggravating factor. Sentencing decisions are within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh`g, 875 N.E.2d 218. However, a trial court may be found to have abused its sentencing discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that explains reasons for imposing a sentence where the record does not support the reasons; (3) entering a sentencing statement that omits reasons that are clearly supported by the record and advanced for consideration; and (4) entering a sentencing statement in which the reasons given are improper as a matter of law. Id. at 490

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