MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Aug 23 2019, 6:25 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
Chad A. Montgomery                                       Curtis T. Hill, Jr.
Montgomery Law Office                                    Attorney General of Indiana
Lafayette, Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brittany Leann Kehlhofer,                                August 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-404
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1804-F5-66



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019                     Page 1 of 7
                                       Statement of the Case

[1]   Brittany Kehlhofer (“Kehlhofer”) appeals the sentence imposed after she pled

      guilty to Level 5 felony possession of methamphetamine1 and Level 6 felony

      unlawful possession of a syringe.2 Kehlhofer argues that her sentence is

      inappropriate in light of the nature of the offense and her character.

      Concluding that Kehlhofer’s sentence is not inappropriate, we affirm her

      sentence.


[2]   We affirm.


                                                     Issue

                              Whether Kehlhofer’s sentence is inappropriate.


                                                     Facts

[3]   On April 5, 2018, officers located Kehlhofer in a motel room in Lafayette,

      Indiana. They were aware that she had an outstanding arrest warrant and took

      her into custody. A search of the motel room revealed 9.24 grams of

      methamphetamine, several syringes, scales, methamphetamine pipes,




      1
          IND. CODE § 35-48-4-6.1.
      2
          IND. CODE § 16-42-19-18.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019   Page 2 of 7
      marijuana, and approximately $13,800 of fraudulent U.S. currency in a

      backpack.


[4]   The State charged Kehlhofer with Level 5 felony possession of

      methamphetamine, Level 6 felony unlawful possession of a syringe, Class B

      misdemeanor possession of marijuana, Class C misdemeanor possession of a

      paraphernalia, and Level 6 felony counterfeiting. In December 2018, Kehlhofer

      pled guilty to Level 5 felony possession of methamphetamine and Level 6

      felony possession of a syringe.3 In exchange, the State dismissed the remaining

      charges. Sentencing was left to the discretion of the trial court.


[5]   At the sentencing hearing, the trial court found both mitigating and aggravating

      factors present. The trial court identified the following mitigating factors:


              [Kehlhofer] [pled] guilty and accepted responsibility; [Kehlhofer’s]
              substance abuse issues (diminished by her failure to take
              advantage of substance abuse programs previously provided).

      (App. 25). The trial court identified the following aggravating factors:


              [Kehlhofer’s] criminal history; [Kehlhofer] was on probation at the
              time of this offense; [Kehlhofer] has previously violated probation;
              [Kehlhofer’s] conduct while at the Tippecanoe County Jail
              (including a battery and failure to take advantage of rehabilitative
              programs available).




      3
       Pursuant to the plea agreement, Kehlhofer also admitted to violating her probation in cause number 79D02-
      1704-F5-49.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019                 Page 3 of 7
      (App. 25). The trial court then found that the aggravating factors outweighed

      the mitigating factors. The trial court sentenced Kehlhofer to five (5) years for

      the Level 5 felony conviction and two (2) years for the Level 6 felony

      conviction. The trial court ordered the sentences to be served concurrently, for

      an aggregate sentence of five (5) years. Of those five years, four (4) years were

      ordered executed at the Department of Correction, one (1) year on community

      corrections, and one (1) year was suspended to probation. Kehlhofer now

      appeals.


                                                  Decision

[6]   Kehlhofer argues that her aggregate sentence of five years is inappropriate in

      light of the nature of the offense and her character. This Court may revise a

      sentence if it is inappropriate in light of the nature of the offense and the

      character of the offender. Ind. Appellate Rule 7(B). “The 7(B)

      ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s

      judgment, not unlike the trial court’s discretionary sentencing determination.”

      Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,

      though, we conduct that review with substantial deference and give due

      consideration to the trial court’s decision—since the principal role of our review

      is to attempt to leaven the outliers, and not to achieve a perceived correct

      sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citation

      omitted). “Appellate Rule 7(B) analysis is not to determine whether another

      sentence is more appropriate but rather whether the sentence imposed is


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019   Page 4 of 7
      inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

      quotation marks and citation omitted), reh’g denied. The defendant has the

      burden of persuading the appellate court that his sentence is inappropriate.

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


[7]   “‘[R]egarding the nature of the offense, the advisory sentence is the starting

      point the Legislature has selected as an appropriate sentence for the crime

      committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting

      Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007)). Here, Kehlhofer was convicted of a Level 5 felony and a

      Level 6 felony. The sentencing range for a Level 5 felony is “for a fixed term of

      between one (1) and six (6) years, with the advisory sentence being three (3)

      years.” I.C. § 35-50-2-6(b). The sentencing range for a Level 6 felony is “for a

      fixed term of between six (6) months and two and one-half (2 ½) years, with the

      advisory sentence being one (1) year.” I.C. § 35-50-2-7(b). The trial court

      sentenced Kehlhofer to five (5) years for the Level 5 conviction and to a

      concurrent two (2) years for the Level 6 felony.


[8]   Kehlhofer argues that the nature of the offense does not support her aggregate

      five-year sentence. Specifically, she argues that the “non-violent nature” of the

      offense renders her sentence inappropriate. (Kehlhofer’s Br. 14). We disagree.

      The nature of Kehlhofer’s offense involves her possessing 9.24 grams of

      methamphetamine, approximately $13,800 of fraudulent U.S. currency,

      marijuana, and drug paraphernalia. Kehlhofer was also wanted on an arrest

      warrant. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (holding that a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019   Page 5 of 7
       trial court can consider the totality of criminal conduct and its review is not

       limited to what the defendant pled guilty to).


[9]    When considering the character-of-the-offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

       prior criminal history will vary “based on the gravity, nature and number of

       prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d

       261, 263 (Ind. 2008) (internal quotation marks and citation omitted).


[10]   Regarding Kehlhofer’s character, the record reveals that in September 2017, she

       was convicted of Level 5 felony possession of methamphetamine and Level 6

       felony unlawful possession of a syringe, which are the exact offenses that she

       committed in the underlying cause of this appeal. Two months later, she

       violated the terms and conditions of her community corrections placement and

       was ordered to serve 171 days in the Department of Correction. Thereafter, in

       April 2018, Kehlhofer committed the instant offenses. Furthermore,

       Kehlhofer’s continued drug-related behavior is indicative of a failure to take

       advantage of rehabilitative opportunities in the past and reflects poorly on her

       character. See, e.g., Phelps v. State, 969 N.E.2d 1009, 1021 (Ind. Ct. App. 2012)

       (stating that the defendant’s refusal to take advantage of rehabilitative efforts

       offered to him reflected poorly on his character), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019   Page 6 of 7
[11]   Kehlhofer has not persuaded us that the nature of the offense and her character

       make her sentence inappropriate. Therefore, we affirm the sentence imposed

       by the trial court.


[12]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019   Page 7 of 7
