Father convicted of OWI with child in car loses appeal of 6-year sentence

A man convicted of operating a vehicle while intoxicated with his toddler in the car could not convince the Court of Appeals of Indiana that he was denied his right to allocution or that his sentence should be reconsidered.

Stemming from an incident in March 2020, Cole Strack was sentenced to six years, with two years suspended to probation, for convictions of operating a vehicle while intoxicated and possession of marijuana.

At the time, Strack was driving a vehicle that was pulled over for an inoperable license plate light. An officer smelled alcohol as he spoke to Strack and another passenger in the vehicle, which also held Strack’s toddler-aged daughter.

Strack, who admitted to consuming several beers and to possessing the marijuana located in the driver’s side door pocket, failed field sobriety tests and was subsequently arrested. A chemical later test revealed the presence of marijuana metabolites in his blood, and a breath test revealed a blood alcohol content of .098%.

Strack was charged with Level 6 felony OWI with a habitual vehicular substance offender enhancement; Class C misdemeanor operating a vehicle with an alcohol concentration equivalent of .08 or more; Class B misdemeanor possession of marijuana; and Level 6 felony operating a vehicle with a controlled substance in the blood with a prior offense.

Following a subsequent charge of domestic battery against his girlfriend, Strack was also arrested for violating the terms of his pretrial release.

Strack pleaded guilty to all charges without a plea agreement, but the Wells Superior Court dismissed the Class C misdemeanor and Level 6 felony operating with a controlled substance charges for double jeopardy. The court found as aggravating factors Strack’s pretrial release violation and criminal history, but found no mitigators in imposing the sentence.

The COA affirmed the trial court’s decision in Cole G. Strack v. State of Indiana, 21A-CR-922, finding that because Strack had an opportunity to be heard by the trial court, including an opportunity for allocution after his testimony, the trial court did not err in that regard.

However, it noted that the trial court “failed to clarify an ambiguity here, and, as a result, Strack did not understand that he was not required to submit to cross-examination.”

“We reiterate that trial courts must be ever vigilant in providing clarity, both in their procedures and in the exposition of the rights of criminal defendants,” Judge Elizabeth Tavitas wrote for the appellate court.

As to his mitigating factor arguments, the COA agreed with Strack that the trial court committed error by disallowing evidence pertinent to his daughter’s circumstances while living with her mother. However, that error was harmless, it concluded.

“Assuming, arguendo, that the trial court had permitted evidence pertaining to the (Department of Child Services) investigations and Mother’s unsuitability to care for her daughter, that does not give rise to a reasonable doubt that the sentence would have differed from the one actually imposed,” Tavitas wrote.

Further, considering Strack’s criminal history and his decision to get behind the wheel after drinking with his daughter in the car, the COA determined she would be no better off if Strack were to serve his sentence in community corrections and regain custody.

The appellate panel also concluded the trial court should have afforded Strack’s entry of a guilty plea mitigating weight, but could not confidently conclude that the trial court would have ordered a different sentence if it had attributed mitigating weight to Strack’s guilty plea.

Finally, the court declined to remand for resentencing due to the abuse of discretion and alleged cumulative effect of the trial court’s error.

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