MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Aug 29 2017, 9:06 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Todd D. Keck, August 29, 2017
Appellant-Defendant, Court of Appeals Case No.
66A03-1703-CR-628
v. Appeal from the Pulaski Superior
Court
State of Indiana, The Honorable Patrick B.
Appellee-Plaintiff. Blankenship, Judge
Trial Court Cause Nos.
66D01-1512-F6-121
66D01-1512-F5-048
66D01-1601-F5-2
Pyle, Judge.
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Statement of the Case
[1] Todd D. Keck (“Keck”) appeals his sentences for his convictions of Class A
misdemeanor domestic battery,1 Class A misdemeanor invasion of privacy,2 and
Level 5 felony stalking,3 to which he pled guilty pursuant to a plea agreement.
He argues that his sentence was inappropriate under Indiana Appellate Rule
7(B) in light of the nature of his offense and his character. Because Keck has
failed to show that his sentence is inappropriate, we affirm the trial court’s
decision.
[2] We affirm.
Issue
Whether Keck’s sentence was inappropriate under Indiana
Appellate Rule 7(B).
Facts
[3] On the night of December 18, 2015, forty-seven-year-old Keck became irate
with his then-girlfriend, Amanda Krintz (“Krintz”), and began threatening and
yelling at her. He “head-butted” Krintz twice, causing her to have redness and
swelling. (Tr. 65). As Keck was verbally and physically abusing Krintz, she
1
IND. CODE § 35-42-2-1.3(a).
2
I.C. § 35-46-1-15.1(5). We note that this statute was amended effective July 1, 2017. We will apply the
version of the statute in effect at the time of Keck’s offense.
3
I.C. § 35-45-10-5(a).
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made a sixteen-minute audio recording of his threats. (Tr. 52). She then was
able to flee from her house to call 9-1-1. (Tr. 52).
[4] Keck was arrested and charged with Level 6 felony intimidation and Class A
misdemeanor domestic battery in Cause Number 66D01-1512-F6-00121
(“Cause 121”). The trial court then released Keck on bond. As a condition of
his release, Keck was ordered not to contact Krintz “by telephone or letter,
through an intermediary, or in any other way, directly or indirectly….” (App.
Vol. 2 at 96).
[5] In spite of this no-contact order, Keck sent Krintz text messages containing sad
face emoticons on December 22 and 24, 2015. Then, on December 27, 2015,
Keck sent Krintz a long, five-message text message apologizing for his previous
actions and telling her that he was sober. In one of the five text messages, Keck
admitted “I know I’m not supposed to text[.]” (App. Vol. 2 at 193). As a result
of these violations of the no-contact order, the State charged Keck with Level 5
felony stalking and three counts of Class A misdemeanor invasion of privacy in
Cause Number 66D01-1512-F5-00048 (“Cause 48”) on December 29, 2015.
[6] Thereafter, on January 5, 2016, Keck sent Krintz another text message. It
stated:
Just wanted to say hi just left an a.a. meeting I feel a lot better
but sure miss you Amanda you know I don’t have to move back I
sure wish you would give me the chance and see the [sic] I’m
serious about living a better life hope all is well miss you.
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(App. Vol. 2 at 183) (improper grammar and punctuation in original). As a
result of this contact, the State charged Keck with an additional count each of
Level 5 felony stalking and Class A misdemeanor invasion of privacy in Cause
Number 66D01-1601-F5-00002 (“Cause 2”).
[7] On December 13, 2016, Keck and the State tendered a proposed plea agreement
to the trial court. The agreement provided that Keck would plead guilty to
Class A misdemeanor domestic battery in Cause 121, Class A misdemeanor
invasion of privacy in Cause 48, and Level 5 felony stalking in Cause 2, and
serve an aggregate sentence of four (4) years with 790 days executed and 670
days suspended. The trial court rejected the proposed agreement.
[8] Subsequently, Keck pled guilty to Class A misdemeanor domestic battery in
Cause 121, Class A misdemeanor invasion of privacy in Cause 48, and Level 5
felony stalking in Cause 2, and the State dismissed the remaining charges in all
three causes.4 The trial court held a sentencing hearing on February 28, 2017.
At the hearing, Krintz testified to the impact of Keck’s offenses. She said that
she was still concerned for her safety and that the audio recording of Keck’s
December 18, 2015 threats she had given to the police had been “just a small
preview of what [she] [had] go[ne] through every night at home with [Keck].”
(Tr. 52). She said that he had “terrorized [her] in [her] own house on a regular
basis.” (Tr. 52). The State then introduced into evidence a copy of the audio
4
It is not clear whether the State and Keck entered into a written plea agreement. There is no written plea
agreement in the record.
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recording Krintz had made and played the recording for the court. In the
recording, Ketz made the following threats to Krintz, among others:
I will ram my fucking fist down your fucking throat, Man. Fuck
you Man. Fuck you Man. Fuck you. I will snatch you up, and I
will put you through a fucking wall.
*****
You are a bitch, Man. You are a bitch. Straight up bitch. Bitch.
Fuck with me Man. Every night, like tonight, I try to be cool,
come in [sic], you’re a cunt, Man.
*****
I will come back fucking three months, eight months later, while
you are all fucking sleeping comfortable in your bed, I will
fucking burn your ass alive. I swear to fucking God I will, Man.
I will fucking torture your ass. I promise. I promise.
*****
You’re a bitch, Man. You are a straight up, fucking bitch. And
you know what, you fucking came across the wrong
motherfucker, because I am going to tell you what, you have me
locked up, put a restraining order on me, as soon as it is up bitch,
when you are sleeping, I am going to come, and I am going to
fuck you up. Understand that.
*****
I will fucking destroy you, Man. I am telling you what, if I – it
might be three years, six months, make sure you do what you do,
because I am going to tell you what . . . . When I get out, I am
going to fuck you up. Don’t fuck with me, Man. I am telling
you! You don’t fucking believe me, Man! I am telling you what,
straight up.
*****
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I am fucking telling you, don’t fuck with me! I will fuck you up!
I don’t take shit from no man, and I ain’t taking no shit from
you. Understand what I am saying, Man, because I will crush
you, Man. No, no, no, really[.]
*****
I will crush you.
*****
I will crush you.
*****
Enjoy your little cunt ass. Fucking take your little pizza king and
shove it up your fucking cunt. I don’t need your shit. Don’t
want your shit, don’t want your shit, don’t fucking—I am not
fucking—no, I don’t need nothing you got for me, Man. No,
fuck you. Cross me, I swear to fucking God man. What you
want to fucking do my shit, and fucking run a background check,
you better fucking check what you are fucking doing. I am
telling you right now. I am not threatening you, but if you want
me to be a fucking bitch, you want to run a background check on
me, you better fucking check on my fucking family. You better
check on my fucking friends. . . . They are not going to play
fucking . . . . Be careful about what you are doing, Man, because
them motherfuckers ain’t gonna play. I am not fucking with you.
Don’t fuck with me Man. And I am going to tell you what right
now, don’t fucking call the law on me, Man. . . . I will burn your
fucking ass. I promise you I will. Another night, I want to come
home. Fuck you, Man. It is over Man. I want [to] tip this table
right over on your fucking ass and smash your fucking face.
*****
I am going to tell you right now, the best [sic], I will be out, and I
will fucking find you. I promise you. Look in my eyes. Fucking
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burn me, and I will fucking crush you. I fucking swear to fucking
God. If you were a guy, I would fucking deck you right now.
*****
You ain’t seen shit. You know what, when I do get crossed end
up with you, I will beat you like a guy. I will beat the fucking
shit out of you, Man. I swear to fucking God. You think I am a
pussy? I will fucking destroy your fucking punk ass. I promise
you. I promise you. I promise you. . . . I am just telling you
right now[.] I can’t be more fucking explicit to you. I tell you
what, put a fucking restraining order on me, three months, and I
will be out. I swear to fucking God. You better fucking leave
this fucking town, because I swear to fucking God you do this
shit to me[.]
*****
I will fucking find your ass in three months, six months, eight
months down the road, I will fucking burn your ass in the house.
I swear to fucking God. And your dog. Everybody. I promise.
I fucking promise. I will fucking see you in hell. You are a bitch,
Man. Enjoy your night.
(Tr. 54-62). At the end of the recording, Krintz told Keck “I will be back,” and
then the following exchange took place:
[KECK:] I will be too, I have a gun loaded for your ass. Keep
that in mind, Man.
[KRINTZ:] You have got a gun?
[KECK:] You don’t think so? . . . Huh? No, really.
*****
[KECK:] You are a fucking bitch, Man. Whatever cops you
need to come here, come here bitch. I will fucking destroy you.
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(Tr. 64).
[9] Also at the hearing, the State presented evidence that Keck had a substantial
criminal history. The pre-sentence investigation report (“PSI”) summarized his
criminal history as follows:5
[Keck’s] adult history is massive. He was first arrested as an
adult at the age of nineteen. He has a total of fifty-nine (59)
arrests, including the instant offenses, since he was nineteen years
old. He has had 22 convictions which [led] to four different
probations of which one was successfully completed. He has
been sentenced to jail thirteen times and was sentenced to prison
five times. Of the fifty-nine charges the Defendant had six
acquittals, fifteen charges that were dismissed by plea
agreements.
[Keck’s] charges included twenty-two charges of Battery and
Intimidation; twelve crimes involving drugs and alcohol; six
charges involving Driving While Suspended; and ten charges of
Theft, Conversion, and Check Deception.
(App. Vol. 3 at 12).
[10] At the conclusion of the hearing, the trial court sentenced Keck to six (6) years
executed for his stalking conviction, three hundred and sixty-five (365) days
executed for his invasion of privacy conviction, and one (1) year executed for
his domestic battery conviction and ordered the sentences to run consecutively,
5
Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI must be
excluded from public access. However, in this case the information contained in the PSI is “essential to the
resolution” of Keck’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included
confidential information in this decision only to the extent necessary to resolve the appeal.
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resulting in an aggregate eight-year sentence. The court noted that Keck had
not demonstrated any remorse or empathy for what he had done to Krintz,
other than remorse for himself and his family, and that his previous crimes had
similarly demonstrated his lack of empathy for others. It also found the
following aggravating factors: (1) the harm and injury suffered by the victim
(that Krintz “had to sit there for sixteen minutes and listen to how somebody
was going to kill her”); (2) Keck’s extensive criminal history; (3) Keck had
violated a protective order twice since being charged with domestic battery in
Cause 121; and (4) Keck had threatened to harm Krintz when he got out of jail.
(Tr. 85). Keck now appeals.
Decision
[11] On appeal, Keck argues that his aggregate eight-year sentence for his three
convictions was inappropriate in light of the nature of his offense and his
character. In particular, he challenges his six-year maximum sentence for his
stalking conviction and requests that we lower his stalking sentence to three
years.
[12] We may revise a sentence under Appellate Rule 7(B) if it is inappropriate in
light of the nature of the offense and the character of the offender. Ind.
Appellate Rule 7(B). The defendant has the burden of persuading us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of a Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
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‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. Whether a sentence is
inappropriate ultimately turns on “the culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Cardwell, 895 N.E.2d at 1224. We are supposed
to focus on “the forest—the aggregate sentence—rather than the trees—
consecutive or concurrent, number of counts, or length of the sentence on any
individual count.” Id. at 1225.
[13] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Here, Keck was convicted of a Level 5 felony and two Class A misdemeanors.
A Level 5 felony has a sentencing range of one (1) to six (6) years and an
advisory sentence of four (4) years. I.C. § 35-50-2-6(b). A person who commits
a Class A misdemeanor must not be sentenced to a term longer than one (1)
year. I.C. § 35-50-3-2. As Keck received a sentence of six (6) years for his
Level 5 felony conviction and one (1) year for each of his Class A misdemeanor
convictions, to be served consecutively, he received the maximum possible
aggregate sentence of eight years.
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[14] With regard to the nature of Keck’s offenses, the record revealed that Keck
heinously and extensively threatened Krintz, including threats that if she
reported him, he would “fucking burn [her] ass in the house” and her dog, no
matter how long it took him to get out of jail; that he would “torture [her] ass’”
that he would “destroy [her];” and that he would “fucking crush [her],” among
other threats. (Tr. 56, 57, 61, 62). While he was verbally abusing her, he head-
butted her twice, causing injury. Then, after Keck was arrested and charged
with domestic battery and intimidation, he repeatedly contacted Krintz in
violation of his no-contact order. This contact continued even after he had been
charged with several counts of invasion of privacy for violating the no-contact
order through his first texts.
[15] Keck attempts to minimize the severity of these actions by arguing that his
aggregate sentence, and his stalking sentence in particular, was inappropriate
because the text messages he sent to Krintz “did not themselves contain threats
or anything to provoke fear” and because “most stalking cases are [] based on
conduct much worse than sending a text message.” (Keck’s Br. 12, 13).
However, Keck’s arguments relate solely to the nature of his stalking
conviction. As we stated above, we are supposed to focus on “the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number
of counts, or length of the sentence on any individual count.” Cardwell, 895
N.E.2d at 1225. The nature of Keck’s combined offenses more than adequately
supports his aggregate eight-year sentence.
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[16] Moreover, contrary to Keck’s argument, his texts were enough to provoke
Krintz’s fear in light of his previous threats that he would find her and destroy
her, regardless of legal repercussions. His act of contacting Krintz in spite of
the no-contact order and the invasion of privacy charges reinforced this message
that he would not be deterred by the law. Therefore, we are not persuaded that
Keck’s sentences were inappropriate in light of the nature of his offenses.
[17] Next, Keck argues that his sentence was inappropriate in light of positive
evidence of his character, including that he has taken steps to deal with his
substance abuse and to complete life skills programs since his offenses. We do
not find this evidence persuasive considering the extensive evidence of Keck’s
poor character. Keck has an appalling criminal history and has spent his entire
adult life engaged in criminal activities. As the trial court summarized, in the
thirty years Keck has been an adult, he has been arrested fifty-nine times and
convicted twenty-two times. Significantly, twenty-two of those charges were
related to battery or intimidation, like his domestic battery conviction here. Of
the four times Keck has been on probation, he has violated his probation three
times. These convictions and failures to abide by the terms of his probation
demonstrate, like the nature of his offenses, that Keck does not have any respect
for the law or believe that the law applies to him. Moreover, as the trial court
noted, the nature of Keck’s prior convictions, including multiple convictions for
battery and theft, demonstrate that he does not have any empathy for the
suffering of others.
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[18] In light of this evidence of the nature of Keck’s offense and his character, we do
not find his sentence inappropriate.
[19] Affirmed.
Riley, J., and Robb, J., concur.
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