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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. ATTORNEY FOR APPELLANT: JOHN PINNOW Special Assistant to the Public Defender Greenwood, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANDREW BRADY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 76A03-0703-CR-119

APPEAL FROM THE STEUBEN CIRCUIT COURT The Honorable Allen N. Wheat, Judge Cause No. 76C01-0603-FD-254

July 16, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following his plea of guilty to operating a vehicle while intoxicated, a Class D felony, Andrew Brady was sentenced to three years, to be served consecutively to his sentence for a prior unrelated conviction. He now appeals that sentence, asserting the trial court was required to impose an advisory sentence. Concluding the trial court did not abuse its discretion in sentencing Brady, we affirm. Facts and Procedural History On March 4, 2006, Police Officer Thomas Johnson stopped Brady for speeding. Upon encountering Brady, Officer Johnson also suspected that Brady was intoxicated. Brady attempted to perform field sobriety tests and took a breathalyzer test whose results showed that Brady's BAC was .19 percent. Brady had a prior conviction for operating a vehicle while intoxicated in Noble County and was on probation at the time of the instant offense. On March 6, 2006, the State charged Brady with operating a vehicle while intoxicated, as a Class C misdemeanor and as a Class D felony because of a prior conviction, operating a vehicle with at least .15 grams alcohol content, as a Class A misdemeanor and as a Class D felony because of a prior conviction, habitual traffic offender, and habitual substance offender. On December 4, 2006, Brady and the State entered into a plea agreement that provided for Brady to plead guilty to operating a vehicle while intoxicated, a Class D felony, with sentencing to be determined by the trial court. In return, the State would dismiss the

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remaining charges and also dismiss a charge in an unrelated case. At the change of plea hearing, Brady advised the trial court that he discussed the plea agreement with his attorney and also admitted to the essential facts of the crime in that he operated his vehicle knowing that he was intoxicated. Brady also admitted that he had a prior conviction for operating a vehicle while intoxicated in Noble County, from March 11, 2005. The court accepted Brady's guilty plea to operating a vehicle while intoxicated, a Class D felony. At sentencing, the court found Brady's extensive criminal history, as set out in the pre-sentence investigation report, and the fact that he was on probation when he committed the instant offense as significant aggravating circumstances. No significant mitigating factors were found. The court acknowledged that Brady did plead guilty, but that he received extensive benefits in return for his plea in the dismissal of the remaining charges and the dismissal of charges in an unrelated case. The trial court found the aggravating

circumstances far outweighed any mitigating circumstances. The trial court sentenced Brady to three years incarceration in the Department of Correction to be served consecutively to the sentence in Noble County. This is above the advisory sentence for the crime.1 The trial court further ordered that Brady could serve the entire sentence on work release. Brady now appeals his sentence. Discussion and Decision Brady asserts the trial court improperly sentenced him to serve a three-year sentence

The advisory sentence for operating a vehicle while intoxicated, a Class D felony, is one and onehalf years. Ind. Code

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