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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: DONALD R. SHULER Barkes, Kolbus & Rife, LLP Goshen, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana TAMARA WEAVER Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

May 25 2011, 9:50 am

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

CLERK

No. 43A04-1011-CR-697

APPEAL FROM THE KOSCIUSKO SUPERIOR COURT The Honorable Joe V. Sutton, Judge Cause No. 43D03-1008-FD-123

May 25, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Mark Smith appeals the sentence imposed following his guilty plea to class D felony operating a vehicle while intoxicated. The trial court sentenced Smith to eighteen months' imprisonment and suspended his driving privileges for one year. On appeal, Smith invites us to revise his sentence asserting that it is inappropriate in light of the nature of the offense and his character. Finding that Smith has not met his burden to persuade us that his sentence is inappropriate, we decline his invitation and affirm the sentence imposed by the trial court. Facts and Procedural History On July 31, 2010, at approximately 2:00 a.m., Smith was operating a vehicle in Kosciusko County. Prior to driving, Smith consumed three cans of Colt 45, a malt liquor. Indiana State Police Officer Ryan McNamara was on patrol when he observed Smith's vehicle cross the center line. Officer McNamara stopped Smith and conducted several field sobriety tests, all of which Smith failed. A certified blood test subsequently performed at the hospital revealed that Smith's blood alcohol content was .082 gram of alcohol per 100 milliliters of blood. The State charged Smith with two counts of operating a vehicle while intoxicated and two counts of operating a vehicle with a controlled substance in the body. Smith pled guilty to operating a vehicle while intoxicated, as a class C misdemeanor, and operating a vehicle

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while intoxicated as a class D felony.1 During sentencing, the trial court found Smith's criminal history to be an aggravating factor and his guilty plea to be a mitigating factor. Finding that the aggravating factor and the mitigating factor balanced each other, the trial court sentenced Smith to the eighteen-month advisory sentence for a class D felony. The trial court further concluded that it would consider a six-month sentence modification/reduction if Smith completed a drug and alcohol program through the Department of Correction. Discussion and Decision Smith's sole contention on appeal is that his eighteen-month sentence is inappropriate in light of the nature of the offense and his character. The sentencing range for a class D felony is between six months and three years, with the advisory sentence being eighteen months. Ind. Code

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