MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jun 12 2019, 9:08 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Hubert A. Kraemer,                                       June 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-122
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D06-1702-F1-564



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019                       Page 1 of 7
                                                Case Summary
[1]   Hubert A. Kraemer (“Kraemer”) challenges his sentence, following a guilty

      plea, for his convictions for neglect of a dependent, as a Level 3 felony,1 and

      four counts of neglect of a dependent, as Level 6 felonies. 2 The only issue he

      raises on appeal is whether his sentence is inappropriate in light of the nature of

      the offenses and his character.


[2]   We affirm.



                                 Facts and Procedural History
[3]   Approximately nine years ago, Kraemer and his wife, Robin (“Wife”), adopted

      C.H. (“Child”) when he was three days old. App. Vol. II at 127. Child was

      blind and had cerebral palsy. Child lived in the family home his whole life.

      Kraemer’s grandson, Chad (“Chad”), Chad’s girlfriend, and their two children,

      Ly.K. and Le.K., also lived in the home.


[4]   On February 21, 2017, officers were dispatched to Kraemer’s home due to

      reports that Child was in cardiac arrest. Child was transported to the hospital

      but died shortly thereafter. After Child had been taken to the hospital, officers

      spoke to Kraemer, who told them the extent of Child’s medical issues.

      Kraemer stated that Child had been receiving medical treatment previously



      1
          Ind. Code § 35-46-1-4(b)(2) (2017).
      2
          I.C. § 35-46-1-4(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019   Page 2 of 7
      from Child’s primary-care physician, but, after the physician’s divorce, Child

      had to go to Riley Children’s Hospital for treatment. Kraemer stated that he

      did not know the name of any doctor at Riley who allegedly treated Child. He

      also told the officers that he had taken Child to his own doctor, Dr. Gopala,

      within the last week for pneumonia treatment. However, officers also spoke to

      Wife who said that Child had not been to a doctor in a year, and Dr. Gopala

      later informed the police that he had never treated Child.


[5]   The cause of Child’s death was starvation. At nine years old Child weighed just

      under fifteen pounds. App. Vol. II at 20. Child’s “skin appeared to be stretched

      over [his] bones,” and he died with methamphetamine in his system. App. Vol.

      II at 21. Subsequent testing revealed that the two other children living in

      Kraemer’s home, five-year-old Ly.K. and two-year-old Le.K., had

      methamphetamine in their systems as well. Police also tested all the adults

      living in the home, and Kraemer, Wife, Chad, and Chad’s girlfriend all tested

      positive for methamphetamine.


[6]   The State charged Kraemer with: one count of neglect of a dependent resulting

      in death, a Level 1 felony;3 one count of neglect of a dependent resulting in

      serious bodily injury, as a Level 3 felony; one count of failure to make a report,

      as a Class B misdemeanor;4 four counts of neglect of a dependent, as Level 6




      3
          I.C. § 35-46-1-4(b)(3).
      4
          I.C. § 31-33-22-1(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019   Page 3 of 7
      felonies; one count of maintaining a common nuisance, as a Level 6 felony;5

      and one count of visiting a common nuisance, as a Class A misdemeanor.6 On

      November 14, 2018, Kraemer entered into a plea agreement with the State

      whereby he pled guilty to Level 3 felony neglect of a dependent resulting in

      serious bodily injury and four counts of Level 6 felony neglect of a dependent in

      exchange for dismissal of the remaining charges and an agreement that the

      sentences would all run concurrently.


[7]   On December 14, 2018, the case proceeded to sentencing. The court found

      Child’s death, which was a more severe injury than was required to prove the

      Level 3 felony, was an aggravator. The court found Kraemer’s health issues and

      guilty plea were mitigators, but determined that the aggravator of Child’s death

      “substantially outweigh[ed]” any mitigators. Tr. at 21-22. The court sentenced

      Kraemer to concurrent sentences of one year for each of the Level 6 felony

      convictions, and to twelve years, with four years suspended, for the Level 3

      felony conviction. Thus, Kraemer received an aggregate sentence of twelve

      years, with four years suspended, for his five felony convictions.




      5
          I.C. § 35-45-1-5(c).
      6
          I.C. § 35-45-1-5(b)(2)(B).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019   Page 4 of 7
                                 Discussion and Decision
[8]   Kraemer maintains that his sentence is inappropriate in light of the nature of

      the offense and his character. Article 7, Sections 4 and 6, of the Indiana

      Constitution authorize independent appellate review and revision of a trial

      court’s sentencing order. E.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind.

      2018). This appellate authority is implemented through Indiana Appellate Rule

      7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to

      demonstrate that his sentence is inappropriate in light of the nature of his

      offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866

      N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or

      non-recognition of aggravators and mitigators as an initial guide to determining

      whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d

      142, 147 (Ind. Ct. App. 2006). We consider not only the aggravators and

      mitigators found by the trial court, but also any other factors appearing in the

      record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans.

      denied. It is the defendant’s burden to “persuade the appellate court that his or

      her sentence has met th[e] inappropriateness standard of review.” Roush v.

      State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). And the

      defendant “bears a particularly heavy burden in persuading us that his sentence

      is inappropriate when the trial court imposes the advisory sentence.” Fernbach

      v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.


[9]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019   Page 5 of 7
       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns 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.” Id. at 1224. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[10]   We begin by noting that Kraemer’s eight-year executed sentence is one year

       below the advisory sentence for a Level 3 felony, and the advisory sentence “is

       the starting point the Legislature selected as appropriate for the crime

       committed.” Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014); I.C. § 35-50-2-5(b)

       (providing the advisory sentence for a Level 3 felony is between three and

       sixteen years). Moreover, the nature of his offenses were severe and prolonged

       and resulted in greater injury than necessary to prove the commission of neglect

       of a dependent as a Level 3 felony; Kraemer starved his nine-year-old child to

       death, and the child also had methamphetamine in his system. See Cardwell,

       895 N.E.2d at 1224; I.C. § 35-38-1-7.1(a)(1). Kraemer’s crimes were not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019   Page 6 of 7
       accompanied by any show of “restraint” on his part, Stephenson, 29 N.E.3d at

       122; his victim was very disabled, I.C. § 35-38-1-7.1(a)(7); and the crimes

       resulted in the death of a child over whom Kraemer had care and control, I.C. §

       35-38-1-7.1(a)(8). His sentence is not inappropriate in light of the nature of his

       offenses.


[11]   Nor does Kraemer’s character support a sentence revision. He has a criminal

       history which, although remote, nevertheless reflects poorly on his character.

       See Rutherford, 866 N.E.2d at 874. Moreover, Kraemer lied to the police when

       he claimed he had taken Child to his own doctor recently; that too reflects

       poorly on his character. While we acknowledge—as the trial court did—the

       mitigating factors that Kraemer pled guilty and has his own health problems,

       we agree with the trial court that those factors are far outweighed by the

       horrendous fact that Kraemer starved his disabled child to death. Kraemer has

       failed to carry his burden of persuading us that his sentence is inappropriate.


[12]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019   Page 7 of 7
