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                               Jun 26 2018, 9:16 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
Jane Ann Noblitt                                         Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin E. Bell,                                           June 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         40A05-1712-CR-2977
        v.                                               Appeal from the Jennings Circuit
                                                         Court
State of Indiana,                                        The Honorable Jon W. Webster,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         40C01-1609-F5-65



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018                Page 1 of 8
                                          Case Summary
[1]   On September 17, 2016, Kevin Bell was driving a vehicle without a valid

      driver’s license. At some point, the vehicle he was driving went down a ravine

      and crashed. His girlfriend, who was a passenger in the vehicle, died as a result

      of the crash. Approximately three days later, the police became aware of the

      accident. The State subsequently charged Bell with a number of crimes,

      including Level 5 felony driving while suspended. Bell pled guilty to Level 5

      felony driving while suspended. In exchange for Bell’s guilty plea, the State

      agreed to drop all of the remaining charges. Although the length of Bell’s

      sentence was left to the discretion of the trial court, the terms of the plea

      agreement indicated that none of the sentence would be suspended. The trial

      court accepted Bell’s guilty plea and sentenced him to an executed four-year

      term. Bell contends both that his sentence is inappropriate and that the trial

      court abused its discretion in failing to find certain mitigating factors.

      Concluding otherwise, we affirm.



                            Facts and Procedural History
[2]   On September 17, 2016, Bell and his girlfriend Nikki Reed were driving

      together from Pennsylvania to Indiana to attend Reed’s son’s birthday party.

      Despite knowing that his driver’s license was suspended, Bell drove Reed’s

      vehicle. While driving on U.S. 50 in Jennings County, Bell veered off the road

      into a ravine and struck a tree. Reed died as a result of the impact.



      Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018   Page 2 of 8
[3]   Bell remained in the vehicle for the next three days. On September 20, 2016, he

      crawled out a broken window and attempted to climb out of the ravine. As he

      did this, he found his cellular phone, which had two percent of the battery

      power remaining. Instead of immediately calling 911, Bell informed his

      employer that he had been in an accident. Bell did not notify 911 of the

      accident before the phone’s battery died.


[4]   Bell eventually climbed out of the ravine and flagged down a passing motorist,

      who called 911. Indiana State Trooper Rick Hewitt responded to the 911 call.

      When Trooper Hewitt arrived, Bell informed Trooper Hewitt that he had fallen

      down into the ravine. Upon receiving Bell’s name, Trooper Hewitt learned that

      Bell was associated with Reed who had been reported missing by her ex-

      husband. When Trooper Hewitt inquired about Reed, Bell had a “surprised

      look” on his face and told Trooper Hewitt that “she was probably still in the

      truck.” Appellant’s App. Vol. II, p. 26. After Trooper Hewitt asked “what

      truck,” Bell admitted that there was a vehicle at the bottom of the ravine.

      Appellant’s App. Vol. II, p. 26. Trooper Hewitt observed that the location of

      the crashed vehicle was “at the bottom of a heavily wooded ravine and was not

      visible from the roadway due to thick vegetation.” Appellant’s App. Vol. II, p.

      26. Bell initially told Trooper Hewitt that Reed had been driving at the time of

      the accident but later admitted that he was driving when the accident occurred.


[5]   On September 27, 2016, the State charged Bell with Level 5 felony driving

      while suspended, Level 5 felony leaving the scene of an accident resulting in

      death, Class A misdemeanor failure to report a dead body, Class A

      Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018   Page 3 of 8
      misdemeanor driving while suspended, and Class B misdemeanor false

      informing. Bell subsequently pled guilty to Level 5 felony driving while

      suspended. In exchange for Bell’s guilty plea, the State agreed to drop all of the

      remaining charges. The plea agreement left the length of Bell’s sentence to the

      trial court but provided that none of the sentence would be suspended. The trial

      court accepted Bell’s guilty plea and sentenced him to an executed four-year

      term.



                                 Discussion and Decision
[6]   Bell challenges his sentence on appeal. First, he contends that his four-year

      sentence is inappropriate. Next, he contends that the trial court abused its

      discretion by failing to consider certain mitigating factors. We disagree with

      both contentions.


                             I. Appropriateness of Sentence
[7]   Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “‘concentrate

      less on comparing the facts of [the case at issue] to others, whether real or

      hypothetical, and more on focusing on the nature, extent, and depravity of the

      offense for which the defendant is being sentenced, and what it reveals about

      the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

      2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
      Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018   Page 4 of 8
      denied). The defendant bears the burden of persuading us that his sentence is

      inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[8]   In this case, Bell was involved in a traffic accident while driving without a valid

      driver’s license. His girlfriend, who was a passenger in the vehicle, died as a

      result of the accident. When Bell finally exited the vehicle, he did not

      immediately notify the police of the accident, despite having the brief

      opportunity to do so. In addition, when he finally did speak to police, he

      initially lied and said that he had fallen down the ravine. He only admitted that

      he had been driving in a vehicle in which Reed was a passenger when

      specifically asked about her whereabouts.


[9]   As for Bell’s character, Bell admits that despite having limited mental function,

      he understands right from wrong and knows what he should and should not do.

      At the time of his arrest, there was an active bench warrant for his arrest

      stemming from a harassment case in Pennsylvania. Moreover, although Bell’s

      criminal history involved only one other criminal conviction, this prior

      conviction also involved a traffic accident that resulted in the death of another

      person. Similar to this case, following the first accident, Bell did not

      immediately report the accident but rather waited a number of days before

      coming forward to report his involvement. Further, it does not reflect well on

      his character that when speaking to police, Bell was not immediately forthright

      about the circumstances surrounding the most recent accident. Bell has failed

      to persuade us that his four-year sentence is inappropriate.



      Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018   Page 5 of 8
                                     II. Abuse of Discretion
[10]   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), modified 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.” Id.

       (quotation omitted).


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence-including a finding of aggravating and
               mitigating factors if any-but 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. Under
               those circumstances, remand for resentencing may be the
               appropriate remedy if we cannot say with confidence that the
               trial court would have imposed the same sentence had it properly
               considered reasons that enjoy support in the record.


       Id. at 490–91. A single aggravating factor may support an enhanced sentence.

       Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).


[11]   In sentencing Bell, the trial court found Bell’s criminal history including his

       prior felony conviction and the outstanding active warrant for his arrest and the

       fact that he “delayed 3–4 days in calling anyone or looking for help while lying

       in a ravine” to be aggravating factors. Appellant’s App. Vol. II, p. 62. The trial

       Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018   Page 6 of 8
       court also found the fact that Bell (1) admitted his crime without the necessity

       of a trial, (2) is a high school graduate, (3) is a low risk to reoffend, and (4) “has

       some functional disabilities arising from complications with his birth” to be

       mitigating factors. Appellant’s App. Vol. II, p. 62. Bell does not argue on

       appeal that these factors are not supported by the record. Rather, he claims that

       the trial court abused its discretion by failing to also find his “extreme remorse”

       and the “likelihood he would respond affirmatively to probation or short-term

       incarceration” to be mitigating factors. Appellant’s Br. p. 14.


[12]   Although a sentencing court must consider all evidence of mitigating factors

       offered by a defendant, the finding of mitigating factors rests within the court’s

       discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is

       neither required to find the presence of mitigating factors, Fugate, 608 N.E.2d at

       1374 (citing Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)), nor obligated

       to explain why it did not find a factor to be significantly mitigating. Sherwood v.

       State, 749 N.E.2d 36, 38 (Ind. 2001) (citing Birdsong v. State, 685 N.E.2d 42, 47

       (Ind. 1997)). “A court does not err in failing to find mitigation when a

       mitigation claim is highly disputable in nature, weight, or significance.”

       Henderson, 769 N.E.2d at 179 (internal quotations omitted). Furthermore, while

       Indiana law mandates that the trial judge not ignore facts in the record that

       would mitigate an offense, and a failure to find mitigating factors that are

       clearly supported by the record may imply that the trial court failed to properly

       consider them, id., an allegation that the trial court failed to find a mitigating

       factor requires the defendant to establish that the mitigating evidence is both


       Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018   Page 7 of 8
       significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835,

       838 (Ind. 1999).


[13]   With respect to Bell’s claimed remorse, we have previously concluded that

       “substantial deference must be given to a trial court’s evaluation of remorse

       [because t]he trial court, which has the ability to directly observe the defendant

       and listen to the tenor of his or her voice, is in the best position to determine

       whether the remorse is genuine.” Corralez v. State, 815 N.E.2d 1023, 1025 (Ind.

       Ct. App. 2004). Like in Corralez, we conclude that Bell’s reference to statements

       articulating his remorse is insufficient to establish an abuse of discretion. See id.


[14]   As for Bell’s claim that he would have responded well to probation or a short

       term of imprisonment, the record reveals that pursuant to the terms of Bell’s

       plea agreement, “none” of his sentence was to be suspended. Appellee’s App.

       Vol. II, p. 5. In addition, despite having previously received a short term of

       incarceration in connection to his first conviction, Bell did not reform his

       behavior. Further, when Bell first spoke to police, he was not initially forthright

       about the circumstances surrounding the accident. We cannot say that the trial

       court abused its discretion by failing to find Bell’s claim that he might have

       responded affirmatively to probation or short-term imprisonment to be a

       significant mitigating factor.


[15]   The judgment of the trial court is affirmed.


       Baker, J., and Kirsch, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 40A05-1712-CR-2977 | June 26, 2018   Page 8 of 8
