MEMORANDUM DECISION FILED
Sep 21 2017, 9:47 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Mullins Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelcey Dirk Sample, September 21, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1703-CR-706
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff Murray, Judge
Trial Court Cause No.
45G02-1502-F3-11
May, Judge.
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[1] Kelcey Dirk Sample appeals his sentence of three years for Level 5 felony
battery resulting in serious bodily injury. 1 He argues the trial court abused its
discretion when it sentenced him and that his sentence is inappropriate based
on the nature of the offense and his character. We affirm.
Facts and Procedural History
[2] On December 18, 2014, Sample went to Tiana Cody’s home. Sample and
Cody had been in a relationship and have a five-year-old daughter together.
While in Cody’s home, Sample pushed Cody into a mirror. The mirror broke
and cut Cody’s hand and wrist, requiring twenty stitches. Cody also had
bruising to her face, neck, and scalp. On February 23, 2015, the State charged
Sample with two counts of Level 3 felony criminal confinement, 2 and one count
each of Level 5 felony criminal confinement, 3 Level 5 felony battery resulting in
serious bodily injury, Level 6 felony criminal confinement, 4 Level 6 felony
strangulation, 5 Level 6 felony domestic battery, 6 Level 6 felony battery with
1
Ind. Code § 35-42-2-1(f) (2014).
2
Ind. Code § 35-42-3-3(b)(2) (2014).
3
Ind. Code § 35-42-3-3(b)(1) (2014).
4
Ind. Code § 35-42-3-3(a) (2014).
5
Ind. Code § 35-42-2-9(b) (2014).
6
Ind. Code § 35-42-2-1.3(b) (2014).
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moderate bodily injury, 7 and Class A misdemeanor battery resulting in bodily
injury. 8
[3] In August 2016, the State charged Sample with two counts of Level 5 felony
criminal confinement and one count each of Level 6 felony criminal
confinement, Level 6 felony battery resulting in moderate bodily injury, and
Class A misdemeanor battery for an incident involving Lori Gonzalez. Sample
and Gonzalez had been in a relationship, and it was alleged he attacked her,
resulting in a black eye. Gonzalez indicated she also had to attend physical
therapy because of her injuries.
[4] After multiple continuances and changes in counsel, Sample was scheduled to
go to trial for the nine charges involving Cody on January 23, 2017. The same
day, Sample and the State reached a plea agreement under which Sample
would plead guilty to one count of Level 5 felony battery resulting in serious
bodily injury and the State would dismiss the other eight charges in that case, as
well as dismiss the five counts in the case involving Gonzalez. The plea
agreement provided for a sentence of no more than three years, to be
determined after the parties argued their respective positions before the trial
court.
7
Ind. Code § 35-42-2-1(d) (2014).
8
Ind. Code § 35-42-2-1(c) (2014).
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[5] On March 1, 2017, the trial court held a sentencing hearing. After receiving
argument from counsel and testimony from Cody, Gonzalez, and Sample, the
trial court sentenced Sample to three years incarcerated, noting: “I’m
constrained by the terms of this plea agreement. It calls for a cap of three years.
So the Court cannot impose a sentence beyond that. But had the parties put a
higher number in that category, then I would have had leeway to impose a
longer sentence.” (Sent. Tr. at 32-3.)
Discussion and Decision
Abuse of Discretion
[6] Sentencing decisions rest within the sound discretion of the trial court and we
review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court or the reasonable, probable, and actual
deductions drawn therefrom. Id. We review for an abuse of discretion the
court’s finding of aggravators and mitigators to justify a sentence, but we
cannot review the relative weight assigned to those factors. Id. at 490-491.
When reviewing the aggravating and mitigating circumstances identified by the
trial court in its sentencing statement, we will remand only if “the record does
not support the reasons, or the sentencing statement omits reasons that are
clearly supported by the record, and advanced for consideration, or the reasons
given are improper as a matter of law.” Id.
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[7] Sample’s plea agreement capped his sentence at three years, which is the
advisory sentence for a Level 5 felony. See Ind. Code § 35-50-2-6(b) (a person
who commits a Level 5 felony “shall be imprisoned for a fixed term of between
one (1) and six (6) years, with the advisory sentence being three (3) years”).
Sample argues the trial court abused its discretion when it considered as an
aggravator a felony conviction in Sample’s presentence report which, upon
Sample’s completion of probation in that case, was reduced to a Class A
misdemeanor conviction. Sample does not challenge any of the trial court’s
other aggravators.
[8] In sentencing Sample, the trial court found three aggravators:
1. The has [sic] defendant has [a] history of juvenile
adjudications, misdemeanor and felony convictions. Defendant
has violated probation in the past. Defendant has a history of
arrests involving domestic battery.
2. The Court finds the nature and circumstances of the crime
to be a significant aggravating factor in that the victim was
attacked in her own home without provocation.
3. Defendant is unapologetic and claims he is being found
guilty of “breaking women’s hearts,” and not battery.
(App. Vol. II at 54.) “A single aggravating circumstance may be sufficient to
enhance a sentence.” Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). The
State presented evidence Sample had an extensive criminal history including
multiple misdemeanor convictions, had violated probation, and had a history of
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arrests involving domestic violence dating back many years. In his plea
agreement, Sample stipulated he entered Cody’s house, he intentionally pushed
her causing injury, and she did not consent to Sample’s contact. Further,
Sample stated during his sentencing hearing, “Legally, I’ve been charged with
battery, but morally and realistically I’ve been found guilty for playing with
women’s hearts. . . . It’s a matter of broken hearts as to why they want me
convicted today.” (Sent. Tr. at 24-5.)
[9] Even without the contested consideration of Sample’s felony-turned-
misdemeanor conviction, there existed a plethora of aggravators to justify
Sample’s three-year sentence. See Edrington v. State, 909 N.E.2d 1093, 1101
(Ind. Ct. App. 2009) (proper to affirm sentence even if improper aggravator is
considered, if we have “confidence that the trial court would have imposed the
same sentence” regardless), trans. denied.
Inappropriate Sentence
[10] Sample argues his seven-year sentence is inappropriate under Indiana Appellate
Rule 7(B). Under this rule, we may revise a sentence if, after due consideration
of the trial court’s decision, we find the sentence inappropriate in light of the
nature of the offense and the character of the offender. Williams v. State, 891
N.E.2d 621, 633 (Ind. Ct. App. 2008). Our review is deferential to the trial
court’s decision, and our goal is to determine whether the defendant’s sentence
is inappropriate, not whether some other sentence would be more appropriate.
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant
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bears the burden of demonstrating his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a sentence is inappropriate
depends on “our sense of the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[11] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. A person who commits a Level 5 felony “shall be imprisoned for a fixed
term of between one (1) and six (6) years, with the advisory sentence being
three (3) years.” Ind. Code § 35-50-2-6(b). Sample’s plea agreement capped his
sentence at three years. While Sample urges us to consider his sentence as the
“maximum penalty” for his crime, (Br. of Appellant at 11), we note his
sentence was the advisory for a Level 5 felony.
[12] Sample argues Cody’s injuries, which included a cut requiring twenty stitches,
was “an unexpected result” of pushing her into a mirror. (Id. at 12.) Further,
Sample argues “while Sample took responsibility for his action and the resulting
injuries in accepting the plea, it cannot be said that it was Sample’s intent to
bring about these serious, yet somewhat remote and unforeseeable, injuries.”
(Id.) Sample’s characterization of the events leading to his conviction are
laughable at best and highlight his continued failure to take responsibility for his
actions. As the trial court noted, Sample’s “attitude seems to be more that he is
the victim, more so than these women. It’s their fault for falling in love with
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him. That’s what it sounds like. That’s arrogance on a scale that I just seldom
hear.” (Sent. Tr. at 33.)
[13] Sample stipulated, as part of his plea agreement, that he “intentionally pushed
Tiana Cody into a mirror causing the mirror to break and Tiana Cody to cut her
hand.” (App. Vol. II at 50.) He also stipulated Cody “cut her hand and wrist
and needed over 20 stitches and had bruising on her face, neck, and scalp.”
(Id.) He did not claim his touching was accidental. We conclude Sample’s
sentence is not inappropriate based on the nature of his offense. See Perry v.
State, 78 N.E.3d 1, 13 (Ind. 2017) (two and a half year sentence appropriate
when offender admitted his participation in the battery, but continued to blame
the victim).
[14] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. While a record of arrests may not be used as
evidence of criminal history, it can be “relevant to the trial court’s assessment of
the defendant’s character in terms of the risk that he will commit another
crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).
[15] Sample has a lengthy criminal history with multiple juvenile adjudications,
misdemeanor convictions, and felony arrests for battery, including one in 2008
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involving Gonzalez. In addition, while Sample claims to have taken
responsibility for his actions, he stated during his sentencing hearing:
First and foremost, I do want to apologize to [sic] my
contributions to the accident that brings us here today. I am
pleading guilty today for what I know that I done [sic], and I am
remorseful. . . . A lot of why I’m here has to do with playing with
a woman’s heart. Legally, I’ve been charged with battery, but
morally and realistically, I’ve been found guilty for [sic] playing
with woman’s hearts.
(Sent. Tr. at 23-4.) This statement is an illustration of Sample’s refusal to do
exactly what he touts—express remorse and accept responsibility. Taking
together Sample’s criminal history and lack of remorse, we cannot say his
sentence is inappropriate based on his character. See Perry, 78 N.E.3d at 13
(sentence appropriate when offender had an extensive criminal history and
expressed veiled remorse for his crimes).
Conclusion
[16] As the trial court considered several proper aggravators when sentencing
Sample, it did not abuse its discretion in sentencing him. Further, we conclude
Sample’s sentence is not inappropriate based on the nature of the offense or his
character. Accordingly, we affirm his three-year sentence.
[17] Affirmed.
Barnes, J., and Bradford, J., concur.
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Kelcey Dirk Sample v. State of Indiana (mem. dec.)
Combined Opinion