MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Feb 19 2018, 9:47 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle Stacy,                                              February 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1710-CR-2479
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff                                       Hopkins, Judge
                                                         Trial Court Cause Nos.
                                                         34D04-1608-F5-132
                                                         34D04-1702-CM-15



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1710-CR-2479 | February 19, 2018        Page 1 of 5
                                        Statement of the Case
[1]   Kyle Stacy appeals his sentence following his conviction for operating a motor

      vehicle after forfeiture of license for life, a Level 5 felony, pursuant to a guilty

      plea. Stacy presents a single issue for our review, namely, whether his sentence

      is inappropriate in light of the nature of the offense and his character. We

      affirm, but we remand to correct a scrivener’s error in the sentencing order.


                                  Facts and Procedural History
[2]   On August 1, 2016, Stacy, who was then thirty-five years old but had never

      obtained a driver’s license, was driving in Kokomo when a police officer saw

      him disregard a stop sign. The officer conducted a traffic stop and learned that

      Stacy did not have a driver’s license and was a habitual traffic offender. On

      August 3, the State charged Stacy with operating a motor vehicle after forfeiture

      of license for life, a Level 5 felony.


[3]   On August 24, 2017, Stacy pleaded guilty as charged.1 Stacy’s plea agreement

      provided that his sentence would be “five (5) years, with the manner and

      duration of time executed to be determined by the Court, but not to exceed two

      (2) years.” Appellant’s App. Vol. II at 50. Following a guilty plea hearing, the




      1
        On February 14, 2017, the State charged Stacy in Cause No. 34D04-1702-CM-15 with possession of
      paraphernalia, as a Class C misdemeanor, and his August 2017 plea agreement included a guilty plea to that
      charge. But Stacy does not appeal his sentence for that conviction.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1710-CR-2479 | February 19, 2018        Page 2 of 5
      trial court sentenced Stacy to five years, with two years executed and 1,095

      days2 on supervised probation. This appeal ensued.


                                      Discussion and Decision
[4]   Stacy contends that his sentence is inappropriate in light of the nature of the

      offense and his character. As we have explained:


              Indiana Appellate Rule 7(B) permits an Indiana appellate court
              to “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.” We assess the trial court’s
              recognition or nonrecognition 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). The principal role of appellate review is to “leaven
              the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). A defendant must persuade the appellate court that his or
              her sentence has met the inappropriateness standard of review.
              Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


      Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[5]   The sentencing range for a Level 5 felony is one year to six years, with an

      advisory sentence of three years. Ind. Code § 35-50-2-6 (2018). In light of




      2
        The sentencing order erroneously states that Stacy shall serve 1,095 months on supervised probation. The
      State agrees that this is a scrivener’s error and needs to be corrected on remand.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1710-CR-2479 | February 19, 2018         Page 3 of 5
      Stacy’s substantial criminal history, the trial court imposed a five-year sentence,

      with two years executed.


[6]   Stacy asserts that his sentence is inappropriate in light of the nature of the

      offense because he “was testing his wife’s brakes when he was arrested a few

      blocks from home. There was no accident, no injury to anyone.” Appellant’s

      Br. at 10. Given that the trial court imposed an executed sentence below the

      advisory sentence for a Level 5 felony, we cannot say that his sentence is

      inappropriate in light of the nature of the offense.


[7]   Stacy next contends that his sentence is inappropriate in light of his character

      because he “look[s] . . . good” for a drug addict because he has “no failed drug

      screens,” he works full-time, he attends college, and he supports his family. Id.

      But, as the State points out, “it is [Stacy’s] character that fully demonstrates that

      the sentence is not inappropriately harsh.” Appellee’s Br. at 12. This

      conviction is Stacy’s sixth conviction related to driving without a driver’s

      license. And Stacy’s criminal history includes sixteen felony convictions

      overall, as well as six misdemeanor convictions. Further, as stated in the

      presentence investigation report,


              [Stacy] has served seven executed sentences, and [he has] been
              placed on probation seven times. He has also been placed in the
              Alcohol and Drug Program twice, work release twice,
              community corrections once, and in the Drug Court once. He
              was removed from Drug Court for violating the program, and he
              has also incurred six other violations of his suspended sentences.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1710-CR-2479 | February 19, 2018   Page 4 of 5
      Appellant’s App. Vol. III at 33. In other words, Stacy has not been successful

      at prior attempts to break his drug addiction, and he has not complied with

      alternative sentencing. We hold that Stacy’s sentence is not inappropriate in

      light of his character, and we affirm his sentence.


[8]   We remand to the trial court with instructions to fix the scrivener’s error in the

      sentencing order. Stacy’s sentence on the Level 5 felony conviction should state

      the duration of supervised probation as 1,095 days, not 1,095 months.


[9]   Affirmed and remanded.


      Mathias, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1710-CR-2479 | February 19, 2018   Page 5 of 5
