Preview:

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: TIMOTHY P. BRODEN Lafayette, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana SCOTT L. BARNHART Deputy Attorney General Indianapolis, Indiana

FILED
Dec 22 2009, 10:19 am
of the supreme court, court of appeals and tax court

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

CLERK

No. 79A04-0909-CR-535

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-0807-FC-67

December 22, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Christopher Weaver appeals his sentence following his convictions for two counts of Operating a Vehicle While Intoxicated Causing Death, as Class C felonies, pursuant to a plea agreement. He presents the following issues for our review: 1. Whether his sentence is inappropriate in light of the nature of the offenses and his character. Whether the trial court erred when it ordered his five-year license suspension to commence upon his release from incarceration.

2.

We affirm. FACTS AND PROCEDURAL HISTORY Early in the morning on June 1, 2008, nineteen-year-old Weaver was driving his car in Lafayette, and his friends Benjamin Howard-Shaw and Demetrius Fikes were riding in the car as passengers. Weaver was intoxicated and traveling at more than ninety miles per hour when he lost control of the vehicle and collided with a guard rail. The force of the collision resulted in fatal injuries to Howard-Shaw and Fikes, who were twenty years old and seventeen years old, respectively. Weaver admitted to police that he had been drinking before the collision and submitted to urine and blood tests. His blood alcohol level was measured at .15%. The State charged Weaver with eight felonies and one misdemeanor, and Weaver ultimately pleaded guilty to two counts of operating a vehicle while intoxicated causing death, as Class C felonies. The State dismissed the other charges. The plea agreement left sentencing to the trial courts discretion. Family members of the victims made statements at Weavers sentencing hearing. And the trial court identified the following aggravators: Weavers history of criminal or
2

delinquent behavior;1 Weaver had recently violated the terms of his probation, diversion, and pre-trial release; and the fact that there were multiple victims. The trial court identified the following mitigators: that Weaver has made or will make restitution to the victims families; his guilty plea and acceptance of responsibility; his participation in rehabilitative programs; his cooperation with law enforcement; his remorse; and his familys support. The trial court found that the aggravators outweighed the mitigators and imposed consecutive six-year sentences, for an aggregate sentence of twelve years.2 Of that aggregate sentence, eight years will be executed, including two years with Tippecanoe County Community Corrections, and four years suspended to probation. This appeal ensued. DISCUSSION AND DECISION Issue One: Sentence Weaver contends that his sentence is inappropriate in light of the nature of the offenses and his character. Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution "authorize[] independent appellate review and revision of a sentence imposed by the trial court." Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This appellate authority is implemented through Indiana Appellate

Weavers juvenile history consists of adjudications for minor consumption, public intoxication, possession of marijuana, and possession of paraphernalia, for which he was placed on probation. Thereafter, in October 2006, Weaver was subsequently arrested and charged with public intoxication and minor consumption, and that cause was waived to adult court. Weaver entered into a diversion agreement with the State. Then, in January 2008, Weaver was charged with minor consumption, and that charge was pending at the time of the offenses in the instant case.
1

The advisory sentence for a Class C felony ranges from two years to eight years. See Ind. Code

Download Christopher Weaver v. State of Indiana.pdf

Indiana Law