Wendy Thompson v. State of Indiana
2014 Ind. App. LEXIS 52
| Ind. Ct. App. | 2014Background
- Thompson drove after consuming alcohol and a benzodiazepine, had BAC 0.25, and caused a multi-vehicle crash that produced serious injuries (including traumatic brain injuries to Redman and severe finger injury to her daughter H.M.).
- State charged eight felonies; Thompson pled guilty to four counts of Class D felony: operating a vehicle with BAC ≥ .08 causing serious bodily injury (IC 9-30-5-4(a)(1)); other counts were dismissed under the plea agreement.
- Trial court found three aggravators (serious victim harm, high BAC + medication, prior DWI) and two mitigators (likely to respond to short-term incarceration/probation; only one prior conviction) and imposed consecutive sentences totaling seven years (five executed, two suspended), plus restitution.
- Thompson appealed arguing (1) her convictions were not "crimes of violence" for purposes of the consecutive-sentencing statute (Ind. Code § 35-50-1-2) so the aggregate sentence exceeded the statutory consecutive cap, and (2) the sentence was inappropriate under App. R. 7(B).
- The court held that the statutory reference in § 35-50-1-2(a)(15) to IC 9-30-5-4 includes the subsection for BAC-based offenses (a)(1), so her convictions are "crimes of violence," and therefore the consecutive-sentence cap did not apply.
- On the 7(B) appropriateness claim the court affirmed: sentences were within statutory ranges, the conduct caused substantial and lasting harm, and Thompson’s character (prior DWI, minimization of alcohol problem) supported the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Class D felony operating a vehicle with BAC ≥ .08 causing serious bodily injury is a "crime of violence" under I.C. § 35-50-1-2(a) | Thompson: The statute’s text references operating while intoxicated causing SBI, a different offense; BAC-based offense (§ 9-30-5-4(a)(1)) is not the same and thus not included | State: The parenthetical statutory citation is to § 9-30-5-4 (whole statute), so the BAC subsection is encompassed and is a listed "crime of violence" | Court: The citation to § 9-30-5-4 includes (a)(1); BAC-based SBI offense is a "crime of violence," so the consecutive-sentence cap does not apply |
| Whether Thompson’s aggregate seven-year sentence is inappropriate under Appellate Rule 7(B) | Thompson: Sentence is excessive given her character, mitigation, and analogies to Davis | State: Waiver for inadequate 7(B) briefing; otherwise facts and harm justify sentence | Court: Considered merits; sentence within statutory ranges and justified by severity of harm and defendant’s character — affirmed |
Key Cases Cited
- Nicoson v. State, 938 N.E.2d 660 (Ind. 2010) (statutory interpretation reviewed de novo)
- Mask v. State, 829 N.E.2d 932 (Ind. 2005) ("terms of imprisonment" includes suspended time)
- Harris v. State, 861 N.E.2d 1182 (Ind. 2007) (consecutive-sentence limitation explained)
- Warner v. State, 497 N.E.2d 259 (Ind. Ct. App. 1986) (distinguishing per se BAC offense from non-per-se intoxication offense)
- N.D.F. v. State, 775 N.E.2d 1085 (Ind. 2002) (courts should recognize what statute does not say as well as what it does)
- Davis v. State, 851 N.E.2d 1264 (Ind. Ct. App. 2006) (sentencing comparators; appellate 7(B) relief in DWI-related context)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (scope and purpose of Rule 7(B) review)