MEMORANDUM DECISION                                                                FILED
                                                                               Apr 11 2018, 9:57 am

Pursuant to Ind. Appellate Rule 65(D),                                             CLERK
this Memorandum Decision shall not be                                          Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
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
Glen E. Koch, II                                         Curtis T. Hill, Jr.
Boren Oliver & Coffey, LLP                               Attorney General of Indiana
Martinsville, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kelly J. Gibson, Jr.,                                    April 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         55A04-1709-CR-2145
        v.                                               Appeal from the Morgan Superior
                                                         Court
State of Indiana,                                        The Honorable Peter R. Foley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         55D01-1210-FA-1509



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 55A04-1709-CR-2145| April 11, 2018              Page 1 of 7
                                             Case Summary
[1]   Kelly J. Gibson, Jr. appeals his forty-five year sentence for Class A felony

      kidnapping. We affirm.


                                                     Issue
[2]   The issue before us is whether Gibson’s forty-five year sentence for Class A

      felony kidnapping is inappropriate.


                                                     Facts
[3]   During the morning of October 15, 2012, Gibson used heroin. Once Gibson

      consumed all the heroin he had, he eventually became ill, and decided he

      needed money to acquire more of the drug. Gibson walked to the Circle K in

      Camby and waited outside until Sabrena Bewley, the store manager, was

      getting in her car to leave. Gibson’s wife had worked at the Circle K store in

      2006, so Gibson knew when the manager made deposits at the bank. As

      Bewley was getting into her car, Gibson approached and forced her to the

      passenger side of her car. Gibson showed Bewley that he had a gun and

      demanded money. Bewley gave Gibson the cash she had to deposit, which was

      about $7,900. Gibson then took control of Bewley’s car and drove her to

      Mooresville.


[4]   Once Gibson and Bewley reached Mooresville, Gibson forced Bewley out of

      the car at a set of railroad tracks and instructed her to walk north for ten

      minutes before making any calls. Bewley called 911 at approximately 1:45 p.m.

      After releasing Bewley, Gibson paid an acquaintance $300 so he could wait at
      Court of Appeals of Indiana | Memorandum Decision 55A04-1709-CR-2145| April 11, 2018   Page 2 of 7
      her house. Gibson called his wife, who came and picked him up. Gibson, his

      wife, and the acquaintance then drove to Indianapolis and used some of the

      money from the robbery to buy heroin. Gibson also bought a car, some clothes

      for his kids, and got items out of a pawn shop that he had pawned. Gibson had

      about $3,000 left when he was arrested on a warrant.


[5]   On October 19, 2012, the State charged Gibson with Class A felony

      kidnapping, Class B felony armed robbery, Class B felony carjacking, Class B

      felony criminal confinement, Class C felony carrying a handgun without a

      license, and a habitual offender enhancement. On September 16, 2013, the

      parties filed a plea agreement with the Court. The plea agreement called for

      Gibson to plead guilty to the charge of Class A felony kidnapping, pay a fine of

      $1.00 plus Court costs of $168.00, and be sentenced to no less than thirty years

      up to a maximum of fifty years, all executed and none suspended. That same

      day, Gibson pled guilty to Class A felony kidnapping and was sentenced to

      forty-five years, all executed.


[6]   When determining Gibson’s sentence, the trial court considered the

      psychological harm inflicted on Bewley, the use of a firearm, Gibson’s juvenile

      record that includes three offenses involving firearms, his violations of

      probation as a juvenile, his adult criminal history, his violations of conditional

      release, and the fact that he was on home detention at the time of this crime.

      The trial court concluded that Gibson was given six opportunities between

      being a juvenile and an adult “[a]nd he blew it all off.” Tr. p. 39. The trial



      Court of Appeals of Indiana | Memorandum Decision 55A04-1709-CR-2145| April 11, 2018   Page 3 of 7
      court found that Gibson’s criminal history outweighed any mitigating weight

      that his drug addiction might afford him. Gibson now appeals his sentence.


                                                  Analysis
[7]   Gibson’s argument is that his forty-five year sentence is inappropriate under

      Indiana Appellate Rule 7(B) in light of his character and the nature of the

      offense. Although Rule 7(B) does not require us to be “extremely” deferential

      to a trial court’s sentencing decision, we still must give due consideration to that

      decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

      also understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. “Additionally, a defendant bears the burden of

      persuading the appellate court that his or her sentence is inappropriate.” Id.


[8]   The principal role of Rule 7(B) review “should be 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). 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.” Id. Whether a sentence is inappropriate

      ultimately turns on 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. When reviewing the appropriateness of a sentence

      under Rule 7(B), we may consider all aspects of the penal consequences


      Court of Appeals of Indiana | Memorandum Decision 55A04-1709-CR-2145| April 11, 2018   Page 4 of 7
       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[9]    The sentencing range for a Class A felony is between twenty and fifty years,

       with the advisory sentence being thirty years. Ind. Code § 35-50-2-4(a).

       Regarding the nature of Gibson’s offense, we conclude that his crime was

       egregious. While coming off a heroin high, Gibson waited around a Circle K

       until the store manager was leaving to make a bank deposit. Gibson opened the

       manager’s car door, forced her into the passenger seat of her car, brandished a

       gun, and demanded the cash the manager had to deposit, which was about

       $7,900. Gibson then took control of the manager’s car, and drove her to

       Mooresville where he forced her out of the car at a set of railroad tracks and

       instructed her to walk north for ten minutes before making any calls. Gibson

       then used the money to purchase an automobile, some clothing for his children,

       and more heroin. The manager was an innocent party who was robbed,

       carjacked, kidnapped, and confined at gun point. Gibson committed this

       offense to fuel his drug habit.


[10]   Gibson’s character also amply justifies his sentence. Gibson has an extensive

       criminal history. Sentencing courts may consider the fact that “[t]he person has

       a history of criminal or delinquent activity” as either an aggravating

       circumstance or as favoring consecutive sentences. I.C. § 35-38-1-7.1(b)(2).

       The significance of a defendant’s criminal history in determining whether to

       impose a sentence enhancement will vary “based on the gravity, nature and

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       number of prior offenses as they relate to the current offense.” Smith v. State,

       889 N.E.2d 261, 263 (Ind. 2008).


[11]   As a juvenile, Gibson was charged with six misdemeanors, three of which

       involved a gun, and six felonies, three of which also involved a gun. Gibson’s

       juvenile charges include attempted armed robbery, burglary, theft, carrying a

       handgun without a license (twice), dangerous possession of a firearm, criminal

       recklessness with a deadly weapon, possession of a handgun and a firearm on

       school property, operating a motor vehicle without ever receiving a license,

       visiting a common nuisance, and possession of marijuana. Eleven out of twelve

       of Gibson’s juvenile charges resulted in delinquency adjudication. Gibson also

       had three probation violations as a juvenile. As an adult, Gibson has been

       charged with fourteen felonies, three of which involved a gun. Gibson’s adult

       charges include dealing in cocaine and marijuana, possession of cocaine and

       marijuana, burglary, theft, receiving stolen property (twice), fraud, kidnapping,

       armed robbery, carjacking, criminal confinement while armed with a deadly

       weapon, carrying a handgun without a license, and habitual offender. Five out

       of fourteen of Gibson’s adult charges resulted in conviction. As an adult,

       Gibson also has had two probation violations, one work release violation, and

       one home detention violation, which was when the current offenses were

       committed. During his lifetime, Gibson has been charged with twenty felonies,

       ten of which resulted in conviction. Gibson has been given seven different

       probation opportunities and has violated them every time. We agree with the




       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-CR-2145| April 11, 2018   Page 6 of 7
       trial court’s finding that Gibson’s criminal history outweighs any mitigating

       weight that his drug addiction might afford him.


[12]   Given the nature of Gibson’s offense and his poor character, in particular his

       extensive criminal history, we conclude that the forty-five year sentence is not

       inappropriate.


                                                 Conclusion
[13]   Gibson’s forty-five year sentence is not inappropriate. We affirm.


[14]   Affirmed.


       Najam, J., and Mathias, J., concur.




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