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                        Aug 29 2017, 9:06 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
Darren Bedwell                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Todd D. Keck,                                            August 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         66A03-1703-CR-628
        v.                                               Appeal from the Pulaski Superior
                                                         Court
State of Indiana,                                        The Honorable Patrick B.
Appellee-Plaintiff.                                      Blankenship, Judge
                                                         Trial Court Cause Nos.
                                                         66D01-1512-F6-121
                                                         66D01-1512-F5-048
                                                         66D01-1601-F5-2



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017       Page 1 of 13
                                         Statement of the Case
[1]   Todd D. Keck (“Keck”) appeals his sentences for his convictions of Class A

      misdemeanor domestic battery,1 Class A misdemeanor invasion of privacy,2 and

      Level 5 felony stalking,3 to which he pled guilty pursuant to a plea agreement.

      He argues that his sentence was inappropriate under Indiana Appellate Rule

      7(B) in light of the nature of his offense and his character. Because Keck has

      failed to show that his sentence is inappropriate, we affirm the trial court’s

      decision.


[2]   We affirm.


                                                        Issue
                 Whether Keck’s sentence was inappropriate under Indiana
                 Appellate Rule 7(B).

                                                       Facts
[3]   On the night of December 18, 2015, forty-seven-year-old Keck became irate

      with his then-girlfriend, Amanda Krintz (“Krintz”), and began threatening and

      yelling at her. He “head-butted” Krintz twice, causing her to have redness and

      swelling. (Tr. 65). As Keck was verbally and physically abusing Krintz, she




      1
          IND. CODE § 35-42-2-1.3(a).
      2
       I.C. § 35-46-1-15.1(5). We note that this statute was amended effective July 1, 2017. We will apply the
      version of the statute in effect at the time of Keck’s offense.
      3
          I.C. § 35-45-10-5(a).


      Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017           Page 2 of 13
      made a sixteen-minute audio recording of his threats. (Tr. 52). She then was

      able to flee from her house to call 9-1-1. (Tr. 52).


[4]   Keck was arrested and charged with Level 6 felony intimidation and Class A

      misdemeanor domestic battery in Cause Number 66D01-1512-F6-00121

      (“Cause 121”). The trial court then released Keck on bond. As a condition of

      his release, Keck was ordered not to contact Krintz “by telephone or letter,

      through an intermediary, or in any other way, directly or indirectly….” (App.

      Vol. 2 at 96).


[5]   In spite of this no-contact order, Keck sent Krintz text messages containing sad

      face emoticons on December 22 and 24, 2015. Then, on December 27, 2015,

      Keck sent Krintz a long, five-message text message apologizing for his previous

      actions and telling her that he was sober. In one of the five text messages, Keck

      admitted “I know I’m not supposed to text[.]” (App. Vol. 2 at 193). As a result

      of these violations of the no-contact order, the State charged Keck with Level 5

      felony stalking and three counts of Class A misdemeanor invasion of privacy in

      Cause Number 66D01-1512-F5-00048 (“Cause 48”) on December 29, 2015.


[6]   Thereafter, on January 5, 2016, Keck sent Krintz another text message. It

      stated:


                Just wanted to say hi just left an a.a. meeting I feel a lot better
                but sure miss you Amanda you know I don’t have to move back I
                sure wish you would give me the chance and see the [sic] I’m
                serious about living a better life hope all is well miss you.



      Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 3 of 13
      (App. Vol. 2 at 183) (improper grammar and punctuation in original). As a

      result of this contact, the State charged Keck with an additional count each of

      Level 5 felony stalking and Class A misdemeanor invasion of privacy in Cause

      Number 66D01-1601-F5-00002 (“Cause 2”).


[7]   On December 13, 2016, Keck and the State tendered a proposed plea agreement

      to the trial court. The agreement provided that Keck would plead guilty to

      Class A misdemeanor domestic battery in Cause 121, Class A misdemeanor

      invasion of privacy in Cause 48, and Level 5 felony stalking in Cause 2, and

      serve an aggregate sentence of four (4) years with 790 days executed and 670

      days suspended. The trial court rejected the proposed agreement.


[8]   Subsequently, Keck pled guilty to Class A misdemeanor domestic battery in

      Cause 121, Class A misdemeanor invasion of privacy in Cause 48, and Level 5

      felony stalking in Cause 2, and the State dismissed the remaining charges in all

      three causes.4 The trial court held a sentencing hearing on February 28, 2017.

      At the hearing, Krintz testified to the impact of Keck’s offenses. She said that

      she was still concerned for her safety and that the audio recording of Keck’s

      December 18, 2015 threats she had given to the police had been “just a small

      preview of what [she] [had] go[ne] through every night at home with [Keck].”

      (Tr. 52). She said that he had “terrorized [her] in [her] own house on a regular

      basis.” (Tr. 52). The State then introduced into evidence a copy of the audio



      4
       It is not clear whether the State and Keck entered into a written plea agreement. There is no written plea
      agreement in the record.

      Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017             Page 4 of 13
recording Krintz had made and played the recording for the court. In the

recording, Ketz made the following threats to Krintz, among others:


        I will ram my fucking fist down your fucking throat, Man. Fuck
        you Man. Fuck you Man. Fuck you. I will snatch you up, and I
        will put you through a fucking wall.

                                             *****

        You are a bitch, Man. You are a bitch. Straight up bitch. Bitch.
        Fuck with me Man. Every night, like tonight, I try to be cool,
        come in [sic], you’re a cunt, Man.

                                             *****

        I will come back fucking three months, eight months later, while
        you are all fucking sleeping comfortable in your bed, I will
        fucking burn your ass alive. I swear to fucking God I will, Man.
        I will fucking torture your ass. I promise. I promise.

                                             *****

        You’re a bitch, Man. You are a straight up, fucking bitch. And
        you know what, you fucking came across the wrong
        motherfucker, because I am going to tell you what, you have me
        locked up, put a restraining order on me, as soon as it is up bitch,
        when you are sleeping, I am going to come, and I am going to
        fuck you up. Understand that.

                                             *****

        I will fucking destroy you, Man. I am telling you what, if I – it
        might be three years, six months, make sure you do what you do,
        because I am going to tell you what . . . . When I get out, I am
        going to fuck you up. Don’t fuck with me, Man. I am telling
        you! You don’t fucking believe me, Man! I am telling you what,
        straight up.

                                             *****
Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 5 of 13
        I am fucking telling you, don’t fuck with me! I will fuck you up!
        I don’t take shit from no man, and I ain’t taking no shit from
        you. Understand what I am saying, Man, because I will crush
        you, Man. No, no, no, really[.]

                                             *****

        I will crush you.

                                             *****

        I will crush you.

                                             *****

        Enjoy your little cunt ass. Fucking take your little pizza king and
        shove it up your fucking cunt. I don’t need your shit. Don’t
        want your shit, don’t want your shit, don’t fucking—I am not
        fucking—no, I don’t need nothing you got for me, Man. No,
        fuck you. Cross me, I swear to fucking God man. What you
        want to fucking do my shit, and fucking run a background check,
        you better fucking check what you are fucking doing. I am
        telling you right now. I am not threatening you, but if you want
        me to be a fucking bitch, you want to run a background check on
        me, you better fucking check on my fucking family. You better
        check on my fucking friends. . . . They are not going to play
        fucking . . . . Be careful about what you are doing, Man, because
        them motherfuckers ain’t gonna play. I am not fucking with you.
        Don’t fuck with me Man. And I am going to tell you what right
        now, don’t fucking call the law on me, Man. . . . I will burn your
        fucking ass. I promise you I will. Another night, I want to come
        home. Fuck you, Man. It is over Man. I want [to] tip this table
        right over on your fucking ass and smash your fucking face.

                                             *****

        I am going to tell you right now, the best [sic], I will be out, and I
        will fucking find you. I promise you. Look in my eyes. Fucking


Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 6 of 13
        burn me, and I will fucking crush you. I fucking swear to fucking
        God. If you were a guy, I would fucking deck you right now.

                                               *****

        You ain’t seen shit. You know what, when I do get crossed end
        up with you, I will beat you like a guy. I will beat the fucking
        shit out of you, Man. I swear to fucking God. You think I am a
        pussy? I will fucking destroy your fucking punk ass. I promise
        you. I promise you. I promise you. . . . I am just telling you
        right now[.] I can’t be more fucking explicit to you. I tell you
        what, put a fucking restraining order on me, three months, and I
        will be out. I swear to fucking God. You better fucking leave
        this fucking town, because I swear to fucking God you do this
        shit to me[.]

                                               *****

        I will fucking find your ass in three months, six months, eight
        months down the road, I will fucking burn your ass in the house.
        I swear to fucking God. And your dog. Everybody. I promise.
        I fucking promise. I will fucking see you in hell. You are a bitch,
        Man. Enjoy your night.

(Tr. 54-62). At the end of the recording, Krintz told Keck “I will be back,” and

then the following exchange took place:


        [KECK:] I will be too, I have a gun loaded for your ass. Keep
        that in mind, Man.

        [KRINTZ:] You have got a gun?

        [KECK:] You don’t think so? . . . Huh? No, really.

                                               *****

        [KECK:] You are a fucking bitch, Man. Whatever cops you
        need to come here, come here bitch. I will fucking destroy you.


Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 7 of 13
       (Tr. 64).


[9]    Also at the hearing, the State presented evidence that Keck had a substantial

       criminal history. The pre-sentence investigation report (“PSI”) summarized his

       criminal history as follows:5


                [Keck’s] adult history is massive. He was first arrested as an
                adult at the age of nineteen. He has a total of fifty-nine (59)
                arrests, including the instant offenses, since he was nineteen years
                old. He has had 22 convictions which [led] to four different
                probations of which one was successfully completed. He has
                been sentenced to jail thirteen times and was sentenced to prison
                five times. Of the fifty-nine charges the Defendant had six
                acquittals, fifteen charges that were dismissed by plea
                agreements.

                [Keck’s] charges included twenty-two charges of Battery and
                Intimidation; twelve crimes involving drugs and alcohol; six
                charges involving Driving While Suspended; and ten charges of
                Theft, Conversion, and Check Deception.

       (App. Vol. 3 at 12).


[10]   At the conclusion of the hearing, the trial court sentenced Keck to six (6) years

       executed for his stalking conviction, three hundred and sixty-five (365) days

       executed for his invasion of privacy conviction, and one (1) year executed for

       his domestic battery conviction and ordered the sentences to run consecutively,




       5
         Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35-38-1-13, the PSI must be
       excluded from public access. However, in this case the information contained in the PSI is “essential to the
       resolution” of Keck’s claim on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included
       confidential information in this decision only to the extent necessary to resolve the appeal.

       Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017            Page 8 of 13
       resulting in an aggregate eight-year sentence. The court noted that Keck had

       not demonstrated any remorse or empathy for what he had done to Krintz,

       other than remorse for himself and his family, and that his previous crimes had

       similarly demonstrated his lack of empathy for others. It also found the

       following aggravating factors: (1) the harm and injury suffered by the victim

       (that Krintz “had to sit there for sixteen minutes and listen to how somebody

       was going to kill her”); (2) Keck’s extensive criminal history; (3) Keck had

       violated a protective order twice since being charged with domestic battery in

       Cause 121; and (4) Keck had threatened to harm Krintz when he got out of jail.

       (Tr. 85). Keck now appeals.


                                                   Decision
[11]   On appeal, Keck argues that his aggregate eight-year sentence for his three

       convictions was inappropriate in light of the nature of his offense and his

       character. In particular, he challenges his six-year maximum sentence for his

       stalking conviction and requests that we lower his stalking sentence to three

       years.


[12]   We may revise a sentence under Appellate Rule 7(B) if it is inappropriate in

       light of the nature of the offense and the character of the offender. Ind.

       Appellate Rule 7(B). The defendant has the burden of persuading us that his

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

       The principal role of a 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
       Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 9 of 13
       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). “Appellate Rule 7(B) analysis is not to determine whether another

       sentence is more appropriate but rather whether the sentence imposed is

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

       quotation marks and citation omitted), reh’g denied. Whether a sentence is

       inappropriate ultimately turns on “the culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224. We are supposed

       to 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. at 1225.


[13]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Keck was convicted of a Level 5 felony and two Class A misdemeanors.

       A Level 5 felony has a sentencing range of one (1) to six (6) years and an

       advisory sentence of four (4) years. I.C. § 35-50-2-6(b). A person who commits

       a Class A misdemeanor must not be sentenced to a term longer than one (1)

       year. I.C. § 35-50-3-2. As Keck received a sentence of six (6) years for his

       Level 5 felony conviction and one (1) year for each of his Class A misdemeanor

       convictions, to be served consecutively, he received the maximum possible

       aggregate sentence of eight years.




       Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 10 of 13
[14]   With regard to the nature of Keck’s offenses, the record revealed that Keck

       heinously and extensively threatened Krintz, including threats that if she

       reported him, he would “fucking burn [her] ass in the house” and her dog, no

       matter how long it took him to get out of jail; that he would “torture [her] ass’”

       that he would “destroy [her];” and that he would “fucking crush [her],” among

       other threats. (Tr. 56, 57, 61, 62). While he was verbally abusing her, he head-

       butted her twice, causing injury. Then, after Keck was arrested and charged

       with domestic battery and intimidation, he repeatedly contacted Krintz in

       violation of his no-contact order. This contact continued even after he had been

       charged with several counts of invasion of privacy for violating the no-contact

       order through his first texts.


[15]   Keck attempts to minimize the severity of these actions by arguing that his

       aggregate sentence, and his stalking sentence in particular, was inappropriate

       because the text messages he sent to Krintz “did not themselves contain threats

       or anything to provoke fear” and because “most stalking cases are [] based on

       conduct much worse than sending a text message.” (Keck’s Br. 12, 13).

       However, Keck’s arguments relate solely to the nature of his stalking

       conviction. As we stated above, we are supposed to 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.” Cardwell, 895

       N.E.2d at 1225. The nature of Keck’s combined offenses more than adequately

       supports his aggregate eight-year sentence.




       Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 11 of 13
[16]   Moreover, contrary to Keck’s argument, his texts were enough to provoke

       Krintz’s fear in light of his previous threats that he would find her and destroy

       her, regardless of legal repercussions. His act of contacting Krintz in spite of

       the no-contact order and the invasion of privacy charges reinforced this message

       that he would not be deterred by the law. Therefore, we are not persuaded that

       Keck’s sentences were inappropriate in light of the nature of his offenses.


[17]   Next, Keck argues that his sentence was inappropriate in light of positive

       evidence of his character, including that he has taken steps to deal with his

       substance abuse and to complete life skills programs since his offenses. We do

       not find this evidence persuasive considering the extensive evidence of Keck’s

       poor character. Keck has an appalling criminal history and has spent his entire

       adult life engaged in criminal activities. As the trial court summarized, in the

       thirty years Keck has been an adult, he has been arrested fifty-nine times and

       convicted twenty-two times. Significantly, twenty-two of those charges were

       related to battery or intimidation, like his domestic battery conviction here. Of

       the four times Keck has been on probation, he has violated his probation three

       times. These convictions and failures to abide by the terms of his probation

       demonstrate, like the nature of his offenses, that Keck does not have any respect

       for the law or believe that the law applies to him. Moreover, as the trial court

       noted, the nature of Keck’s prior convictions, including multiple convictions for

       battery and theft, demonstrate that he does not have any empathy for the

       suffering of others.




       Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 12 of 13
[18]   In light of this evidence of the nature of Keck’s offense and his character, we do

       not find his sentence inappropriate.


[19]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 66A03-1703-CR-628 | August 29, 2017   Page 13 of 13
