MEMORANDUM DECISION
                                                                      Jun 24 2015, 10:27 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Matthew J. McGovern                                       Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kylie Lin Jenks,                                         June 24, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         22A04-1411-CR-522
        v.                                               Appeal from the Floyd Circuit Court
                                                         Lower Court Cause No.
State of Indiana,                                        22C01-1402-FA-285
                                                         The Honorable J. Terrence Cody,
Appellee-Plaintiff.
                                                         Judge




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015           Page 1 of 9
                                          Statement of the Case

[1]   Kylie Lin Jenks (“Jenks”) appeals her sentence for Class B felony conspiracy to

      commit arson.1 On appeal, she argues that the trial court abused its discretion

      at sentencing by considering a pending charge as part of her criminal history.

      In addition, she claims that her sentence is inappropriate in light of the nature

      of the offense and her character. Concluding that the trial court did not err by

      considering her pending charge during sentencing and that her sentence is not

      inappropriate, we affirm her sentence.


[2]   We affirm.


                                                        Issues
               1. Whether the trial court abused its discretion in sentencing
                  Jenks.

               2. Whether Jenks’s sentence is inappropriate under Indiana
                  Appellate Rule 7(B)

                                                        Facts
[3]   The record reveals that Jenks and her three codefendants, Cody Cashion

      (“Cashion”), Shelby Makowsky (“Makowsky”), and A.A., a juvenile, were part

      of a larger group of individuals committing various property crimes in the New




      1
       IND. CODE §§ 35-43-1-1; 35-41-5-2. We note that, effective July 1, 2014, a new version of this arson statute
      was enacted and that Class B felony arson is now a Level 4 felony. Because Jenks committed her crimes in
      January of 2014, we will apply the statute in effect at that time.



      Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015                Page 2 of 9
      Albany area. In late December 2013, Cashion was arrested for shoplifting, and

      Jenks was attempting to raise money to pay his bond by selling stolen items. A

      man who regularly bought stolen items from the group, Jonathan Stewart

      (“Stewart,” a/k/a “Udy”), took stolen items from Jenks without paying for

      them. When discussing Stewart’s theft on Facebook with another person, Jenks

      said, “Well I would[’]ve [paid Cashion’s bond] if [Udy had not] [f]**kin run off

      with all of our [f]**king shit[.] I’m gonna kill him . . . it[’]s all his bitch asses

      fault or else [C]ody would be out right[] now[.]” (State’s Ex. 1, at 2).


[4]   Cashion was released a few days later, and in the early morning hours of

      January 4, 2014, Jenks drove Cashion, Makowsky, and A.A. to 335 Ealy Street

      where the group thought Stewart was staying. However, Stewart was not home

      at the time. Cashion fired a shell from a flare gun at the front of the home. The

      flare landed in a bedroom where a six-year-old, a five-year-old, a four-year-old,

      and a two-year-old child were sleeping. The room erupted in flames, and only

      the five-year-old child was able to escape; the other children were killed.


[5]   Detectives investigating the case eventually received information that

      implicated Cashion and Jenks in the fire. The detectives found Jenks in New

      Albany and interviewed her. She told them that Cashion had fired a flare into

      the home and that she had been driving the car when he did it. On February

      14, 2014, the State charged Jenks with one count of conspiracy to commit arson

      resulting in serious bodily injury as a Class A felony. On July 12, 2014, Jenks

      pled guilty to a lesser included offense of conspiracy to commit arson as a Class



      Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015   Page 3 of 9
B felony. The parties agreed that the trial court would decide her sentence after

argument from the parties.


The trial court held a sentencing hearing on October 16, 2014.2 After taking

evidence and testimony, the trial court found Jenks’s show of remorse, her

cooperation with law enforcement, her age, her academic achievement in high

school, her guilty plea, and the fact that she did not flee when charges were filed

as mitigating circumstances. The trial court found her criminal history, the fact

that she was on probation at the time of the offense, the fact that three children

died and one was seriously injured, that all of the children were younger than

twelve years old, and her conduct before she was arrested as aggravating

circumstances. In relevant part, the trial court stated the following about her

criminal history:

        Now granted, [m]inor [c]onsumption is a misdemeanor with
        minimal penalties. The [effect] of that . . . if that were her only
        conviction I would not consider that an aggravating factor. But
        then we’ve[] not long after that we have a [c]onversion charge
        where she [pled] guilty and was placed on [p]robation. A few
        months later[,] she’s charged with a C felony drug offense and I
        understand that that might be [pled] out to something far less.
        However, she was on [p]robation so I do have to say that her
        history of criminal behavior [is an aggravating circumstance].


(Tr. 106).




2
 Jenks waived her right to be sentenced within thirty days pursuant to Indiana Criminal Rule 11, and the
hearing was continued twice to October 16, 2014.

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[6]   The trial court sentenced Jenks to twenty (20) years in the Department of

      Correction, and she now appeals her sentence.


                                                Discussion
[7]   Jenks appeals her sentence, claiming that the trial court abused its discretion by

      considering a pending charge in her criminal history. She also claims that her

      sentence is inappropriate under Ind. Appellate Rule 7(B). We address each of

      her claims separately.


      1. Abuse of Discretion

[8]   Notwithstanding the authority afforded to appellate courts by Indiana Appellate

      Rule 7(B), “sentencing decisions rest within the sound discretion of the trial

      court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v.

      State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds 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 to be drawn therefrom.” K.S. v.

      State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637,

      640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in sentencing a

      defendant by: (1) failing to enter a sentencing statement; (2) entering a

      sentencing statement that explains reasons for imposing the sentence but the

      record does not support the reasons; (3) omitting reasons that are clearly

      supported by the record and advanced for consideration; or (4) imposing a




      Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015   Page 5 of 9
       sentence for reasons that are improper as a matter of law. Anglemyer, 868

       N.E.2d at 490.


[9]    Jenks relies on Tunstill v. State, 568 N.E.2d 539 (Ind. 1991) to argue that the trial

       court cannot consider a pending criminal charge as part of a criminal history for

       purposes of sentencing. There, the trial court made the following statement at

       sentencing:


               The Court would enter judgment of conviction against the
               defendant for voluntary manslaughter as a Class B felony. The
               Court has read the pre-sentence, the Court did hear the testimony
               that was submitted during the trial on this matter. The Court
               does find the following aggravating circumstances: That the
               defendant was on probation at the time the offense was
               committed. That the defendant’s prior criminal history,
               consisting of an arrest on February 3, 1970, of carrying a
               concealed weapon, an arrest on May 18, 1971, for assault and
               battery with intent to kill, an arrest on March 13, 1983 for battery
               with injury, and other arrests indicating that the defendant’s
               conduct was in fact escalated from carrying a concealed weapon,
               to in fact, voluntary manslaughter.


       Id. at 543. Our supreme court found that the statements about Tunstill’s arrests

       were error because “the [trial] court inferred that appellant actually committed

       the crimes for which he was arrested[.]” Id. at 545. (emphasis added).


[10]   In Jenks’s case, the trial court mentions the pending drug charge but

       acknowledges that it could be “pled to something far less.” (Tr. 106).

       Moreover, unlike Tunstill, the trial court commented on a charge pending at

       sentencing and not arrests without any further disposition. A charge pending at

       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015   Page 6 of 9
       the time of sentencing is a proper aggravating circumstance “and may be

       considered by a sentencing court as being reflective of the defendant’s character

       and as indicative of the risk that he will commit other crimes in the future.

       Tunstill, 568 N.E.2d at 545; See also IND. CODE § 35-38-1-7.1. Accordingly, the

       trial court did not abuse its discretion in sentencing Jenks.


       2. Inappropriate Sentence

[11]   Jenks claims that her sentence is inappropriate given the nature of the offense

       and her character. She suggests that we revise her sentence downward with a

       portion suspended to probation.


[12]   Rule 7(B) of the Indiana Rules of Appellate Procedure gives this Court the

       power to revise an inappropriate sentence in light of the nature of the offense

       and character of the offender, giving due consideration to the trial court’s

       decision. The defendant must persuade us that his or her sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Under

       Rule 7(B), we seek “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). Whether a sentence is inappropriate

       ultimately depends upon “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.” Id. at 1224.




       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015   Page 7 of 9
[13]   In determining whether a sentence is inappropriate, we first look to the advisory

       sentence provided by statute. Childress, 848 N.E.2d at 1081. Arson resulting in

       serious bodily injury, including death, is a class A felony; the sentencing range

       at this level is between twenty (20) and fifty (50) years, with an advisory

       sentence of thirty (30) years. I.C. § 35-50-2-4. However, as a result of plea

       negotiations, Jenks was allowed to plead guilty to conspiracy to commit arson

       as a Class B felony; it carries a sentencing range between six (6) and twenty (20)

       years, with an advisory sentence of ten (10) years. I.C. § 35-50-2-5(a).


[14]   As to the nature of the offense and Jenks’s character, three children perished in

       a fire and another was seriously injured because Jenks and her codefendants

       sought revenge against Stewart for stealing property from them, property that

       they themselves had stolen from others. Jenks asks us to note that she “was

       unaware that any children were in the home, [and] the outcome in this case was

       utterly unintended.” (Jenks’s Br. 14). However, she and her codefendants

       conspired to commit an inherently dangerous act that included the foreseeable

       risk of destruction of property and loss of life. The fact that three innocent

       children lost their lives over nothing more than a dispute between thieves makes

       this offense particularly horrendous. While Jenks’s criminal history is not

       extensive, the fact that she was on probation and had a pending felony charge at

       the time she was sentenced does not reflect the character of someone deserving

       of a revised sentence. Jenks has failed to persuade us that the nature of the

       offense and her character makes her sentence inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015   Page 8 of 9
[15]   We affirm.3


       Crone, J., and Brown, J., concur.




       3
        We affirmed Makowsky’s twenty (20) year sentence for her role in the fire in a memorandum decision on
       January 28, 2015. Makowsky v. State, No. 22A04-1406-CR-295, 2015 WL 410453 (Ind. Ct. App. 2015), trans.
       denied. Cashion did not appeal his sentence for his part in this crime.

       Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015          Page 9 of 9
