MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 19 2018, 9:47 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle Stacy, February 19, 2018
Appellant-Defendant, Court of Appeals Case No.
34A02-1710-CR-2479
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable George A.
Appellee-Plaintiff Hopkins, Judge
Trial Court Cause Nos.
34D04-1608-F5-132
34D04-1702-CM-15
Najam, Judge.
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Statement of the Case
[1] Kyle Stacy appeals his sentence following his conviction for operating a motor
vehicle after forfeiture of license for life, a Level 5 felony, pursuant to a guilty
plea. Stacy presents a single issue for our review, namely, whether his sentence
is inappropriate in light of the nature of the offense and his character. We
affirm, but we remand to correct a scrivener’s error in the sentencing order.
Facts and Procedural History
[2] On August 1, 2016, Stacy, who was then thirty-five years old but had never
obtained a driver’s license, was driving in Kokomo when a police officer saw
him disregard a stop sign. The officer conducted a traffic stop and learned that
Stacy did not have a driver’s license and was a habitual traffic offender. On
August 3, the State charged Stacy with operating a motor vehicle after forfeiture
of license for life, a Level 5 felony.
[3] On August 24, 2017, Stacy pleaded guilty as charged.1 Stacy’s plea agreement
provided that his sentence would be “five (5) years, with the manner and
duration of time executed to be determined by the Court, but not to exceed two
(2) years.” Appellant’s App. Vol. II at 50. Following a guilty plea hearing, the
1
On February 14, 2017, the State charged Stacy in Cause No. 34D04-1702-CM-15 with possession of
paraphernalia, as a Class C misdemeanor, and his August 2017 plea agreement included a guilty plea to that
charge. But Stacy does not appeal his sentence for that conviction.
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trial court sentenced Stacy to five years, with two years executed and 1,095
days2 on supervised probation. This appeal ensued.
Discussion and Decision
[4] Stacy contends that his sentence is inappropriate in light of the nature of the
offense and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and
the character of the offender.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[5] The sentencing range for a Level 5 felony is one year to six years, with an
advisory sentence of three years. Ind. Code § 35-50-2-6 (2018). In light of
2
The sentencing order erroneously states that Stacy shall serve 1,095 months on supervised probation. The
State agrees that this is a scrivener’s error and needs to be corrected on remand.
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Stacy’s substantial criminal history, the trial court imposed a five-year sentence,
with two years executed.
[6] Stacy asserts that his sentence is inappropriate in light of the nature of the
offense because he “was testing his wife’s brakes when he was arrested a few
blocks from home. There was no accident, no injury to anyone.” Appellant’s
Br. at 10. Given that the trial court imposed an executed sentence below the
advisory sentence for a Level 5 felony, we cannot say that his sentence is
inappropriate in light of the nature of the offense.
[7] Stacy next contends that his sentence is inappropriate in light of his character
because he “look[s] . . . good” for a drug addict because he has “no failed drug
screens,” he works full-time, he attends college, and he supports his family. Id.
But, as the State points out, “it is [Stacy’s] character that fully demonstrates that
the sentence is not inappropriately harsh.” Appellee’s Br. at 12. This
conviction is Stacy’s sixth conviction related to driving without a driver’s
license. And Stacy’s criminal history includes sixteen felony convictions
overall, as well as six misdemeanor convictions. Further, as stated in the
presentence investigation report,
[Stacy] has served seven executed sentences, and [he has] been
placed on probation seven times. He has also been placed in the
Alcohol and Drug Program twice, work release twice,
community corrections once, and in the Drug Court once. He
was removed from Drug Court for violating the program, and he
has also incurred six other violations of his suspended sentences.
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Appellant’s App. Vol. III at 33. In other words, Stacy has not been successful
at prior attempts to break his drug addiction, and he has not complied with
alternative sentencing. We hold that Stacy’s sentence is not inappropriate in
light of his character, and we affirm his sentence.
[8] We remand to the trial court with instructions to fix the scrivener’s error in the
sentencing order. Stacy’s sentence on the Level 5 felony conviction should state
the duration of supervised probation as 1,095 days, not 1,095 months.
[9] Affirmed and remanded.
Mathias, J., and Barnes, J., concur.
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