Vaidik, C.J.
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Morgan Mannix struck and killed Alex Trabbert, who was walking along the road, when she was driving home around 2:30 a.m. Mannix stopped her car and briefly looked around but then left when she did not see anything. Mannix later consented to a blood draw, which occurred approximately seven and a half hours after the accident. The results showed that Mannix’s blood-alcohol concentration was 0.10.
After a jury trial, Mannix was convicted of Class C felony failure to stop after an accident resulting in death and Class C felony operating while intoxicated causing death. Despite noting that he had never seen more compelling mitigators than in this case, the trial judge sentenced Mannix to an above advisory term of six years for each conviction, to be served concurrently. The judge suspended two years and ordered one year of probation.
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Mannix … argues that her consent was not voluntary because the implied-consent law requires chemical tests to be administered within three hours of the accident [as I.C. § 9-30-7-3(b) requires], but her test was administered approximately seven and a half hours after the accident. . . . There are no provisions in Chapter 9-30-7 that address what happens if the chemical test is not administered within three hours of the accident.
We, however, have held that some provisions in Chapters 9-30-6 and 9-30-7 should be read together. [Citation omitted.] For example, we have specifically applied Indiana Code section 9-30-6-15, which addresses what happens if the chemical test is not administered within three hours, to Chapter 9-30-7. [Citation omitted.] Section 9-30-6-15 * * * allows a jury to relate the driver’s blood-alcohol concentration at the time of the chemical test back to the time of the accident [by rebuttable presumption]. [Citations omitted.] If the State fails to prove that the chemical test occurred within three hours, it is not allowed to rely on the presumption. [Citation omitted.]
Mannix was charged with operating while intoxicated causing death under Indiana Code chapter 9-30-5. [Record citations omitted throughout.] Accordingly, Indiana Code section 9-30-6-15 applies. But because Mannix’s blood was drawn more than three hours after the accident, the State was deprived of the rebuttable presumption in Section 9-30-6-15(b) and therefore must have provided extrapolation evidence relating Mannix’s blood-alcohol concentration at the time of the test back to the time of the accident[, which it did]. [Citations omitted.]
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Mannix makes several challenges to her sentence, including that the trial court erred by relying on the elements of the offenses to sentence her to an above-advisory term for each conviction.
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Here, the trial judge said that “in [his] career,” he had never seen more “compelling” mitigators than in this case. The judge then appeared to justify imposing an above-advisory sentence for each conviction by relying on “both counts and the elements” as aggravators. [Footnote omitted.] We find this problematic for two reasons. First, the sentencing statement did not include a reasonably detailed explanation of why both counts and the elements of the offenses were aggravating. Second, the judge essentially relied on the elements of one offense to support an above-advisory sentence for the other offense, and vice versa. In other words, the judge relied on (1) the fleeing element from Mannix’s conviction for failure to stop after an accident resulting in death to support an above-advisory sentence for OWI causing death and (2) the intoxication element from Mannix’s conviction for OWI causing death to support an above-advisory sentence for failure to stop after an accident resulting in death. Because the judge relied on the elements, he was required to identify something unique about the circumstances that would justify deviating from the advisory sentence. The judge’s failure to do this was improper as a matter of law.
Where the trial court has erred in sentencing a defendant, there are several options for the appellate court. [Citation omitted.] * * * We choose to exercise our authority to review and revise Mannix’s sentence … to the advisory term of four years with one year suspended for each conviction, to be served concurrently, and one year of probation.
Affirmed in part and reversed in part.
Bailey, J., concurs.
Crone, J., concurs in part and dissents in part.
Crone, Judge, concurring in part and dissenting in part.
I fully concur as to [the evidentiary issue]. As to [the sentencing issue], I respectfully dissent.
… Gomillia [v. State, 13 N.E.3d 846, 852 (Ind. 2014)] does not prohibit [relying on the elements of one offense to support an above-advisory sentence for the other offense, and vice versa], nor does it require that a trial court find “something unique about the circumstances that would justify deviating from the advisory sentence” for an offense based on an element of another offense. [Citation omitted.] But even if the trial court had been required to do so in this case, I believe that the distinguishing elements of the offenses (fleeing, intoxication) are self-evident and therefore sufficient to support the trial court’s sentence.
On a more basic level, it is beyond dispute that committing multiple offenses is worse than committing one offense. Just as a person who harms multiple victims may deserve more punishment than a person who harms one victim, [footnote omitted] a person who commits multiple offenses may deserve more punishment than a person who commits only one offense. I fail to see how the commission of two offenses cannot be considered an aggravating circumstance compared to the commission of one offense.
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Mannix’s “nature of the offense” argument is based solely on the trial court’s reliance on the elements of one offense to support an enhanced sentence for the other offense. This is more properly characterized as a claim that the trial court abused its discretion in considering aggravating factors, which requires a separate analysis. [Citation omitted.] I would find no abuse of discretion for the reasons given above, and I would also find that Mannix has waived her inappropriateness argument as to the nature of her offenses.
Waiver notwithstanding, … Mannix has failed to persuade me that the trial court’s sentence is inappropriate, and therefore I would affirm it.