Marilyn Viers v. State of Indiana (mem. dec.)
20A04-1609-CR-2070
| Ind. Ct. App. | Jan 27, 2017Background
- On December 22, 2015, Marilyn Viers drank beer, drove multiple times that afternoon, and was involved in a parking‑lot collision.
- The State charged her with level 6 felony OWI with a prior, Class A misdemeanor OWI endangering a person, and Class D misdemeanor BAC ≥ .08.
- Viers pled guilty without an agreement to the level 6 felony OWI with a prior conviction.
- The trial court sentenced Viers to two years (the statutory maximum for a Level 6 felony), with one year on home detention and the second year suspended to probation.
- Viers appealed under Indiana Appellate Rule 7(B), arguing the two‑year sentence is inappropriate in light of the nature of the offense and her character and requesting full suspension because she cannot afford home‑detention fees.
- The Court of Appeals affirmed, emphasizing Viers’s repeated OWI convictions, prior felony OWI while on probation, and the dangerousness of driving intoxicated despite lack of physical injuries in this incident.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Viers) | Held |
|---|---|---|---|
| Whether the two‑year sentence is inappropriate under Ind. App. R. 7(B) | Sentence is appropriate given prior OWI convictions, prior felony while on probation, and public‑safety risk | Sentence is excessive: minor collision, only slightly over legal BAC, no injuries, and demonstrated recent treatment efforts | Affirmed: sentence not inappropriate; deference to trial court and prior pattern of offending justified sentence |
| Whether sentence should be revised due to inability to pay home‑detention fees | Trial court considered indigence and financial issues; imposed fee relief and scheduled financial hearing | Requests fully suspended sentence because home detention fees and restrictions impede earning income | Denied: trial court addressed financial issues (waived some fees, suspended fine, appointed pauper counsel); not a basis to revise sentence |
Key Cases Cited
- Childress v. State, 848 N.E.2d 1073 (Ind. 2006) (defendant bears burden to show sentence is inappropriate under Rule 7(B))
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (appellate review should give considerable deference to trial court’s sentencing judgment)
- Fuller v. State, 9 N.E.3d 653 (Ind. 2014) (advisory sentence is the legislature’s starting point for evaluating the nature of the offense)
- Davidson v. State, 926 N.E.2d 1023 (Ind. 2010) (appellate review considers all penal consequences including suspended portions and other sentencing tools)
- Rutherford v. State, 866 N.E.2d 867 (Ind. Ct. App. 2007) (defendant’s criminal history is relevant to assessment of character)