MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Nov 09 2018, 9:16 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Laura Sorge Fattouch                                    Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael I. Keihn, Jr.,                                  November 9, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-118
        v.                                              Appeal from the Decatur Superior
                                                        Court
State of Indiana,                                       The Honorable Matthew D.
Appellee-Plaintiff.                                     Bailey, Judge
                                                        Trial Court Cause No.
                                                        16D01-1512-F4-768



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018             Page 1 of 7
                                Case Summary and Issue
[1]   Michael Keihn pleaded guilty to contributing to the delinquency of a minor, a

      Level 5 felony, and obstruction of justice, a Level 6 felony. The trial court

      sentenced him to 2,160 days in the Indiana Department of Correction with 180

      days suspended to probation for the Level 5 felony conviction and to a

      concurrent term of 900 days for the Level 6 felony. Keihn now appeals his

      sentence, contending it is inappropriate in light of the nature of his offenses and

      his character. Concluding the sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   In the summer of 2015, fourteen-year-old H.M. ran away from home and began

      living with Keihn, a longtime friend of her father’s. During H.M.’s time with

      Keihn, they engaged in sexual intercourse two times. Keihn also provided

      H.M. with methamphetamine on more than one occasion. When the situation

      was discovered and Keihn was arrested in late 2015, he reached out to H.M. to

      encourage her to lie because he wanted out of jail. By doing so, he also violated

      a no contact order. The State charged Keihn with sexual misconduct with a

      minor, a Level 4 felony; obstruction of justice, a Level 6 felony; invasion of

      privacy, a Class A misdemeanor; and two habitual offender enhancements.


[3]   In the fall of 2017, Keihn entered into a plea agreement pursuant to which the

      State amended the sexual misconduct charge to a charge of contributing to the

      delinquency of a minor, a Level 5 felony. Keihn pleaded guilty to that charge


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018   Page 2 of 7
      and obstruction of justice, a Level 6 felony, and the State dismissed the invasion

      of privacy count and the habitual offender enhancements. The trial court found

      three mitigating factors: 1) Keihn entered a guilty plea; 2) he has a history of

      substance abuse; and 3) he testified that long-term incarceration would be an

      undue hardship on his family. However, the trial court concluded that none of

      these mitigators were significant enough to warrant a mitigated sentence. The

      trial court identified two aggravating factors that it considered significant: 1)

      Keihn has a significant criminal history; and 2) he was on probation at the time

      he committed the instant offenses. Concluding the aggravating factors

      outweighed the mitigating factors, the trial court ordered Keihn to serve an

      aggregate sentence of 2,160 days with 180 days suspended to probation.

      Additional facts will be provided as necessary.



                                  Discussion and Decision
                                      I. Standard of Review
[4]   Keihn contends his sentence is inappropriate, specifically arguing that the

      nature and circumstances of his crime and his criminal history do not warrant

      an enhancement to the near-maximum sentence allowed by statute. Keihn

      pleaded guilty to a Level 5 felony,1 the sentence for which is a “fixed term of




      1
        Because Keihn’s two sentences were ordered to be served concurrently, we address only the longest
      sentence. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (noting we “should 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”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018                 Page 3 of 7
      between one (1) and six (6) years, with the advisory sentence being three (3)

      years.” Ind. Code § 35-50-2-6(b). The advisory sentence “is the starting point

      the Legislature has selected as an appropriate sentence for the crime

      committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Keihn

      received a sentence one month short of a maximum sentence.2


[5]   Indiana Appellate Rule 7(B) provides that this court “may 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 evaluate the trial court’s recognition or

      non-recognition of mitigators and aggravators to guide our determination.

      Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016). Upon review, our

      principal role is to “attempt to leaven the outliers . . . but not to achieve a

      perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

      (Ind. 2008). Whether a defendant’s sentence is inappropriate is grounded in

      “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.” Id. at 1224. The defendant bears the burden of persuading this court that

      his or her sentence is inappropriate under the standard. Childress, 848 N.E.2d at

      1080.




      2
       Six years from Keihn’s sentencing date would be December 15, 2023. His sentence of 2,160 days equates to
      an out date of November 14, 2023.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018               Page 4 of 7
                                 II. Inappropriate Sentence
[6]   To determine the nature of the offense, we examine the details and

      circumstances surrounding the offense. Washington v. State, 940 N.E.2d 1220,

      1222 (Ind. Ct. App. 2011), trans. denied. As Keihn notes, neither of the

      aggravating factors identified by the trial court concerned the specific nature

      and circumstances of the crime. Nonetheless, we may look to any factors

      appearing in the record in conducting 7(B) review. Reis v. State, 88 N.E.3d

      1099, 1102 (Ind. Ct. App. 2017). Keihn pleaded guilty to the offense of

      contributing to the delinquency of a minor for providing methamphetamine to

      H.M. He also pleaded guilty to invasion of privacy for violating a no contact

      order in H.M.’s favor. It appears from the record that H.M. is a troubled child,

      having run away on multiple occasions and having numerous encounters with

      police. Keihn acknowledged that H.M. was roughly the same age as his three

      daughters and that he was in a position as a friend of the family to help take

      care of H.M. after she ran away from her own parents. Yet, he failed to do so,

      instead providing methamphetamine to and having sexual intercourse with a

      fourteen-year-old girl. H.M. told police she saw Keihn as a friend but thought

      he had come to see her as a girlfriend and was trying to control her. Indeed,

      Keihn reached out to H.M. in violation of a no contact order to encourage her

      to lie about their activities so he could get out of jail. Nothing about the nature

      and circumstances of this crime leads us to the conclusion that Keihn’s sentence

      is inappropriate.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018   Page 5 of 7
[7]   A defendant’s life and conduct are illustrative of his or her character.

      Washington, 940 N.E.2d at 1222. As to Keihn’s character, he acknowledges his

      lengthy criminal history, but asserts that many of his crimes have been

      substance-abuse related and he expressed his desire for rehabilitation when

      pleading guilty. As the trial court did, we note Keihn did plead guilty.

      However, his plea came nearly two years after he was first charged, and he

      drastically reduced his sentencing exposure by pleading guilty to a Level 5

      felony rather than a Level 4 felony with the possibility of an habitual offender

      enhancement. Keihn’s criminal history consists of at least eighteen prior

      criminal convictions and at least eleven petitions to revoke probation. He was

      incarcerated from 2008 to 2012 for Class A felony dealing in methamphetamine

      and was still serving probation in that case at the time he committed these

      offenses. He also committed another offense while these charges were pending.

      Most of Keihn’s criminal convictions have stemmed from drugs, including the

      most serious offense he pleaded guilty to here. See Johnson v. State, 986 N.E.2d

      852, 857 (Ind. Ct. App. 2013) (noting the significance of a criminal history

      “varies based on the gravity, nature, and number of prior offenses in relation to

      the current offense”). Although Keihn has completed numerous drug

      awareness and rehabilitative programs while incarcerated, he acknowledges

      that he is a drug addict and it does not appear that he has sought any drug

      treatment on his own when out of prison, as he relapsed once released. Keihn

      did seem to offer a genuine apology to H.M., but he also acknowledged the

      damage he had done, stating at his sentencing hearing, “I can’t believe myself

      what I’ve done to this young girl.” Transcript of Evidence, Volume 2 at 22. As
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018   Page 6 of 7
      with the nature of the offenses, nothing about Keihn’s character leads us to the

      conclusion that his sentence is inappropriate.



                                              Conclusion
[8]   For the foregoing reasons, we conclude that Keihn’s sentence is not

      inappropriate in light of the nature of his offenses and his character. His

      sentence is therefore affirmed.


[9]   Affirmed.


      Baker, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018   Page 7 of 7
