MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 16 2019, 7:54 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
ANTHONY S. CHURCHWARD, P.C. Attorney General of Indiana
Fort Wayne, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle S. Skelton, January 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2036
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
02D04-1708-F6-972
02D05-1802-F6-124
Bailey, Judge.
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Case Summary
[1] Kyle S. Skelton (“Skelton”) argues that he received inappropriate sentences
upon two counts of Unlawful Possession of a Syringe, Level 6 felonies, 1 and
one count of Possession of Paraphernalia, as a Class C misdemeanor,2 because
no portion was suspended to probation.
[2] We affirm.
Facts and Procedural History
[3] In August 2017, the State charged Skelton with Unlawful Possession of a
Syringe, a Level 6 felony, and Possession of Paraphernalia, as a Class C
misdemeanor. These charges were filed under cause number 02D04-1708-F6-
000972 (“F6-972”). While Skelton was released on conditions, he was charged
with a new offense: Unlawful Possession of a Syringe, a Level 6 felony. This
charge was filed under cause number 02D05-1802-F6-000124 (“F6-124”).
[4] On February 12, 2018, the trial court held a hearing at which Skelton pleaded
guilty to all three offenses, and agreed to participate in the Allen County Drug
Court Program. The trial court took Skelton’s guilty pleas under advisement
and placed him in the program. Thereafter, the State petitioned to terminate
Skelton’s participation, alleging that Skelton had violated the terms of the
1
Ind. Code § 16-42-19-18.
2
I.C. § 35-48-4-8.3.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2036 | January 16, 2019 Page 2 of 5
program by being unsuccessfully discharged from transitional housing on two
occasions. At a hearing in July 2018, Skelton admitted to the allegations in the
petition. The trial court then revoked Skelton’s participation. The trial court
set the matter for a sentencing hearing, which it held on July 31, 2018. With
respect to the count in the F6-124 cause, the court imposed a sentence of one
year in the Indiana Department of Correction. As to the counts in the F6-972
cause, the trial court imposed concurrent sentences of one year on the Level 6
felony and sixty days on the Class C misdemeanor, to be served in the Indiana
Department of Correction, consecutive to the sentence in the F6-124 cause.
[5] Skelton filed a Notice of Appeal in each cause, and we granted Skelton’s
motion to consolidate the appeals.
Discussion and Decision
[6] Pursuant to Article 7 of the Indiana Constitution, as implemented through
Indiana Appellate Rule 7(B), appellate courts have the authority to revise any
criminal sentence that “is inappropriate in light of the nature of the offense and
the character of the offender.” In revising sentences, our principal role is to
“leaven the outliers,” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008), and
we reserve appellate revision “for exceptional cases.” Livingston v. State, No.
18S-CR-623, slip op. at 4 (Ind. Dec. 28, 2018). “[T]he place where a sentence is
to be served is . . . an appropriate focus for our review under 7(B).” Id.
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[7] Skelton does not appear to challenge the aggregate length of his sentence—two
years—which was the aggregate sentence length Skelton requested during his
hearing. Skelton instead “requests that this Court modify his sentence by
suspending a portion thereof and placing him on probation.” Br. of Appellant
at 16. We nevertheless note that Skelton received the advisory sentence of one
year for each Level 6 felony, see I.C. § 35-50-2-7, and he received the advisory
sentence of sixty days for the Class C misdemeanor, see I.C. § 35-50-3-4.
Moreover, because Skelton committed the offense under F6-124 while on pre-
trial release, the trial court was obligated—under Indiana Code Section 35-50-1-
2(e)—to order consecutive sentences between the causes. It so ordered.
[8] In discussing his offenses, Skelton acknowledges that his first offenses arose
after an overdose and that the latter offense arose after officers found him
unconscious in a vehicle. Skelton minimizes the nature of these offenses,
arguing that he endangered only himself. As to his character, Skelton directs us
to his struggles with substance abuse, noting that his adult criminal history
consists of eleven misdemeanor convictions that all relate to the use of alcohol
or drugs. In support of his character, Skelton also argues that he accepted
responsibility and pleaded guilty without a plea agreement. According to
Skelton, he “received only the benefit of the Drug Court Treatment Program,”
Br. of Appellant at 16, and should have received a partially suspended sentence.
[9] Yet, in his prior interactions with the criminal justice system, Skelton had been
afforded leniency. Indeed, the trial court observed that Skelton had received
“short jail sentences, longer jail sentences, unsupervised probation, services at
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Criminal Division Services, services at Allen County Community Corrections,
and then the Drug Court program,” but that Skelton continued to reoffend. Tr.
Vol. II at 81. The trial court remarked that Skelton is a “really intelligent man”
who knows what he must do but “continue[s] to make the wrong choices.” Id.
The court also observed that, after one unsuccessful discharge from transitional
housing, there had been a petition to revoke Skelton’s participation. Skelton
admitted to the allegation, and the court took the petition under advisement.
Yet, twelve days later, Skelton was again unsuccessfully discharged. The court
remarked that Skelton’s non-compliance “look[ed] willful on [his] part.” Id.
[10] Skelton has not persuaded us that he received an inappropriate sentence.
[11] Affirmed.
Bradford, J., and Brown, J., concur.
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