Anthony Kutch v. State of Indiana (mem. dec.)

A
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                          Dec 28 2020, 10:25 am

court except for the purpose of establishing                                            CLERK
                                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                                Court of Appeals
                                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                      Curtis T. Hill, Jr.
Navarre, Florida                                        Attorney General of Indiana

                                                        Sierra A. Murray
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony Kutch,                                          December 28, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-CR-763
        v.                                              Appeal from the La Porte Superior
                                                        Court No. 1
State of Indiana,                                       The Honorable Michael S.
Appellee-Plaintiff                                      Bergerson, Judge
                                                        Trial Court Cause No.
                                                        46D01-1809-F4-1075



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020              Page 1 of 9
[1]   Anthony Kutch appeals the six-year sentence imposed following his conviction

      of Level 4 felony burglary. 1 He raises two issues on appeal, which we revise

      and restate as: (1) whether the trial court abused its discretion in imposing his

      sentence; and (2) whether Kutch’s sentence is inappropriate given the nature of

      his offense and his character. We affirm.



                                   Facts and Procedural History
[2]   After Justin and Brynn Keist noticed food missing from their house on several

      occasions, they installed surveillance cameras inside their house. On August

      25, 2018, the surveillance cameras captured Kutch enter the house through a

      window. He then rummaged through a dresser and left the house with items

      concealed in his front sweatshirt pockets. The Keists contacted the La Porte

      Police Department, and officers arrested Kutch. The State charged Kutch with

      Level 4 felony burglary.

[3]   On January 16, 2020, Kutch and the State entered into a plea agreement

      whereby Kutch agreed to plead guilty and the State agreed to argue sentencing

      to the court with six years being the maximum sentence the court could impose.

      The trial court held a change of plea hearing and set the matter for a sentencing

      hearing on February 27, 2020. In a statement Kutch submitted as part of his

      Pre-Sentence Investigation report, Kutch stated, “I know what I did was wrong




      1
          Ind. Code § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 2 of 9
      and I don’t deny the fact that I broke the law. Not only did I let myself down as

      a man but I also let my friends and family down[.]” (App. Vol. II at 92.) At the

      sentencing hearing, Kutch stated that he was addicted to heroin at the time of

      the offense, and he attributed his twelve juvenile referrals to “a very rough

      childhood.” (Tr. Vol. II at 23.) The State noted that while Kutch’s criminal

      history was not “excessive,” it was “somewhat troubling,” and the State

      characterized Kutch as a high risk to re-offend. (Id. at 24.) In addition to the

      juvenile referrals, Kutch had been convicted of Class B felony aiding, inducing

      or causing robbery 2 and had served time in the Indiana Department of

      Correction (“DOC”). The State asked the court to impose a six-year executed

      sentence. Kutch argued that, while he had a significant juvenile history, he was

      in his mid-thirties at the time of sentencing. Kutch also explained that he used

      to live with the Keists, and he knew they would not be home when he broke

      into their house.

[4]   The trial court found two mitigating circumstances: (1) “The Defendant pled

      guilty and saved the State the time and the expense of having to bring this case

      to trial;” and (2) “Defendant is a decent candidate for rehabilitation.” (App.

      Vol. II at 115.) The court also found three aggravating circumstances: (1) “12

      previous referrals to the Juvenile Justice System;” (2) “One prior adult felony;”

      and (3) “The Defendant is a high risk to reoffend.” (Id.) The trial court found

      the aggravating circumstances outweighed the mitigating circumstances and



      2
          Ind. Code § 35-42-5-1 (1984) & Ind. Code § 35-41-2-4.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 3 of 9
      imposed a six-year sentence. The trial court also noted Kutch could petition for

      a sentence modification after serving “three (3) actual years” and completing a

      substance abuse program while incarcerated. (Id. at 116.)



                                Discussion and Decision
                                       I. Abuse of Discretion
[5]   Kutch argues the trial court abused its discretion at sentencing by omitting

      mitigating circumstances supported by the record. Our standard of review is

      well-settled:

              Sentencing decisions rest within the sound discretion of the trial
              court, and we review such decisions only for an abuse of
              discretion. Morrell v. State, 118 N.E.3d 793, 796 (Ind. Ct. App.
              2019), clarified on reh’g on other grounds, 121 N.E.3d 577 (Ind. Ct.
              App. 2019), trans. denied. “An abuse of discretion occurs if the
              decision is clearly against the logic and effect of the facts and
              circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct.
              App. 2007). When a trial court imposes a felony sentence, it is
              required to issue a sentencing statement “that includes a
              reasonably detailed recitation of the trial court’s reasons for
              the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-
              85 (Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218
              (Ind. 2007). If the court finds aggravating or mitigating
              circumstances, “the statement must identify all significant
              mitigating and aggravating circumstances and explain why each
              circumstance has been determined to be mitigating or
              aggravating.” Id. at 490.


              A trial court may abuse its discretion in imposing a sentence by
              failing to enter a sentencing statement, identifying aggravating
              and mitigating factors the record does not support, omitting
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 4 of 9
              reasons clearly supported in the record and advanced for
              consideration, or stating reasons for sentence that are improper
              as a matter of law. Id. at 490-91.


      Belcher v. State, 138 N.E.3d 318, 327 (Ind. Ct. App. 2019), trans. denied. A trial

      court does not have to “accept the defendant’s arguments regarding what

      constitutes a mitigating factor or assign proposed mitigating factors the same

      weight as the defendant.” Mehringer v. State, 152 N.E.3d 667, 673 (Ind. Ct.

      App. 2020), trans. denied.


[6]   Kutch argues the trial court abused its discretion by not crediting his expression

      of remorse as a mitigating circumstance. He did express sorrow and regret in

      his Pre-Sentence Investigation statement. However, “our review of a trial

      court’s determination of a defendant’s remorse is similar to our review of

      credibility judgments: without evidence of some impermissible consideration by

      the trial court, we accept its determination.” Hape v. State, 903 N.E.2d 977,

      1002-03 (Ind. Ct. App. 2009), trans. denied. When the court questioned Kutch

      at the sentencing hearing about why he committed the burglary, Kutch blamed

      his childhood and his addiction, and the trial court observed, “I don’t hear any

      acceptance at all in your, in your, your response.” (Tr. Vol. II at 23.) The trial

      court was free to discredit Kutch’s Pre-Sentence Investigation statement given

      his refusal to accept responsibility for his actions at the sentencing hearing. We

      hold that the trial court did not abuse its discretion by not finding remorse to be

      a mitigating circumstance. See Hape, 903 N.E.2d at 1003 (holding trial court did




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 5 of 9
      not abuse its discretion when it failed to recognized defendant’s alleged remorse

      as a significant mitigating circumstance).

[7]   Kutch contends the trial court also abused its discretion by not crediting his

      heroin addiction as a mitigating circumstance. Kutch’s Pre-Sentence

      Investigation report indicates that he began using marijuana in his late teens.

      He became addicted to pain pills in his early thirties, and then he transitioned to

      heroin. Kutch reported that he completed a substance abuse program in 2015,

      and he attended counseling “under the order of Child Protective Services.”

      (App. Vol. II at 89.) However, Kutch was using heroin daily at the time of the

      instant offense. While Kutch’s substance abuse issues persisted for years prior

      to the instant offense, he did not seek out and get the treatment he needed to

      overcome his addiction. The trial court did not thoroughly ignore Kutch’s

      substance abuse issues. It found his prospect for rehabilitation to be a

      mitigating circumstance. The court recommended that Kutch be placed in the

      IDOC’s Recovery While Incarcerated program and noted that completion of

      the program would reflect positively on him in a future petition for sentence

      modification. Therefore, we hold the trial court did not abuse its discretion in

      failing to credit Kutch’s addiction as a mitigating circumstance. See Hape, 903

      N.E.2d at 1002 (holding trial court did not abuse its discretion in failing to

      credit defendant’s substance abuse as a significant mitigating circumstance).




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 6 of 9
                               II. Appropriateness of Sentence
[8]   Kutch also argues that his sentence is inappropriate due to the nature of his

      offense and his character. Our standard of review regarding the appropriateness

      of an offender’s sentence is likewise well-settled:

              We “may revise a sentence authorized by statute if, after due
              consideration of the trial court’s decision, [we find]
              the sentence is inappropriate in light of the nature of the offense
              and the character of the offender.” Ind. App. R. 7(B). Our role
              in reviewing a sentence pursuant to Appellate Rule 7(B) “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 ‘correct’
              result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
              (Ind. 2008). “The defendant bears the burden of persuading this
              court that his or her sentence is inappropriate.” Kunberger v.
              State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015). “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.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).


      Belcher, 138 N.E.3d at 328.


[9]   We use the advisory sentence as a starting point in determining the

      appropriateness of a sentence. Anglemyer, 868 N.E.2d at 494. A Level 4 felony

      is punishable by imprisonment for a fixed term between two years and twelve

      years, with the advisory sentence being six years. Ind. Code § 35-50-2-5.5. We

      assess “whether there is anything more or less egregious about the offense

      committed by the defendant that makes it different from the ‘typical’ offense


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 7 of 9
       accounted for by the legislature when it set the advisory sentence.” Johnson v.

       State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). Here, the trial court imposed

       the advisory sentence, which was also the maximum sentence available

       pursuant to the plea agreement. A defendant appealing the imposition of an

       advisory sentence faces a “particularly heavy burden” in persuading us that his

       sentence is inappropriate. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct.

       App. 2011), trans. denied.


[10]   Regarding the nature of Kutch’s offense, he does not attempt to distinguish his

       offense from a “typical” Level 4 felony burglary. The State notes Kutch

       committed multiple crimes on the day of the burglary because he consumed

       heroin prior to committing the burglary. However, we do not see how Kutch’s

       consumption of heroin beforehand made the burglary itself more abhorrent

       than a typical burglary. Consequently, Kutch’s offense was not more or less

       egregious than the typical burglary offense. Rich v. State, 890 N.E.2d 44, 54

       (Ind. Ct. App. 2008) (holding defendant’s burglary offense was not more or less

       egregious than a typical burglary), trans. denied.


[11]   “When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. The significance of criminal history varies based

       on the gravity, nature, and number of prior offenses in relation to the current

       offense.” Maffett v. State, 113 N.E.3d 278, 286 (Ind. Ct. App. 2018) (internal

       citation omitted). Kutch argues his juvenile referrals do not reflect his current

       character because they stemmed from his difficult childhood and a substantial

       period of time has passed between the juvenile referrals and his current

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 8 of 9
       conviction. However, as an adult, Kutch served time in DOC for robbery. He

       also pled guilty to Class A misdemeanor theft. 3 The Pre-Sentence Investigation

       Report noted Kutch had two active bench warrants from California at the time

       of sentencing because he failed to comply with the terms of his probation

       following misdemeanor convictions for corporal injury on a spouse/cohabitant.

       Kutch’s criminal history reflects poorly on his character. While Kutch claims

       to want to overcome his addiction, his professed desire does not merit a lesser

       sentence. We hold that Kutch’s sentence is not inappropriate given the nature

       of his offense and his character. See George v. State, 141 N.E.3d 68, 74 (Ind. Ct.

       App. 2020) (holding sentence not inappropriate given defendant’s criminal

       history), trans. denied.



                                               Conclusion
[12]   The trial court did not abuse its discretion at sentence by not crediting Kutch’s

       expression of remorse or his addiction to heroin as mitigating circumstances.

       We also cannot say that Kutch’s sentence is inappropriate given his criminal

       history. Therefore, we affirm the trial court.

[13]   Affirmed.

       Kirsch, J., and Bradford, C.J., concur.




       3
           Ind. Code § 35-43-4-2 (2018).


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020   Page 9 of 9

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