MEMORANDUM DECISION                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 18 2017, 9:26 am

this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
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
Gregory L. Fumarolo                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lynn Kohne,                                              April 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         01A02-1608-CR-1973
        v.                                               Appeal from the Adams Circuit
                                                         Court
State of Indiana,                                        The Honorable Chad Kukelhan,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         01C01-1511-F5-44



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017                Page 1 of 6
                                Case Summary and Issue
[1]   Lynn Kohne pleaded guilty without the benefit of a plea agreement to two

      counts of causing death while driving with an alcohol concentration equivalent

      greater than .08 as Level 5 felonies. The trial court sentenced Kohne to an

      aggregate sentence of twelve years in the Indiana Department of Correction

      (“DOC”), with two years suspended to probation. Kohne appeals, raising two

      issues for our review, one of which we find dispositive: whether Kohne’s

      sentence is inappropriate in light of the nature of the offenses and his character.

      Concluding Kohne’s sentence is inappropriate, we reverse and remand.



                            Facts and Procedural History
[2]   On November 21, 2015, Kohne visited a local establishment and consumed

      alcoholic beverages. Around 3:00 p.m. that afternoon, Kohne was driving his

      vehicle southbound on Highway 27 in Decatur, Indiana. At the same time,

      Gary Herriford, his wife Cynthia, and their thirteen-year-old daughter K.H.

      were traveling northbound. Kohne’s vehicle veered into the Herrifords’ lane

      and collided with their vehicle. Gary was pronounced dead at the scene and

      Cynthia was hospitalized with severe injuries. K.H. was also taken to the

      hospital but it does not appear she suffered injuries. A subsequent breath test

      revealed Kohne’s blood alcohol content was .13.


[3]   On November 23, 2015, the State charged Kohne with causing death while

      operating a motor vehicle with an alcohol concentration equivalent greater than


      Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017   Page 2 of 6
      .08 as a Level 5 felony and the same causing serious bodily injury as a Level 6

      felony. Thereafter, Cynthia succumbed to her injuries and the State amended

      the charging information to include only two counts of causing death while

      operating a motor vehicle with an alcohol concentration equivalent greater than

      .08 as Level 5 felonies. On June 27, 2016, Kohne pleaded guilty to both counts

      without the benefit of a plea agreement and the trial court accepted the plea.

      The trial court then entered judgement of conviction and sentenced Kohne on

      each count to six years, with five years executed and one year of probation, to

      be served consecutively for an aggregate sentence of twelve years in the DOC,

      with two years suspended to probation. This appeal ensued.



                                  Discussion and Decision                             1




[4]   Indiana Appellate Rule 7(B) provides, “The Court may 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.” The defendant bears the burden of

      persuading this court his or her sentence is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate

      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.”




      1
        Kohne also contends the trial court abused its discretion in sentencing him. Because we conclude his
      sentence is inappropriate, we need not address this claim.

      Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017            Page 3 of 6
      Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of

      appellate review is to “leaven the outliers,” not achieve the perceived “correct”

      result in each case. Id. at 1225.


[5]   The advisory sentence is the starting point the legislature selected as an

      appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d

      482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Here, Kohne was

      convicted of two counts of causing death while driving with an alcohol

      concentration equivalent greater than .08 as Level 5 felonies. Indiana Code

      section 35-50-2-6(b) states a person who commits a Level 5 felony shall be

      imprisoned for a fixed term of between one and six years, with the advisory

      sentence being three years. The trial court sentenced Kohne to six years in the

      DOC for each offense, with one year suspended to probation.


[6]   As to the nature of the offense, we certainly acknowledge the recklessness of

      Kohne’s choice to drive while under the influence of alcohol, the dire

      consequences of his conduct, and the tragic effect the accident had on the

      Herrifords’ family, including their young daughter, K.H. However, we must

      emphasize his conduct is what the elements of the crime already take into

      consideration: the reckless choice of driving under the influence and causing the

      death of an individual. As to Kohne’s character, we note Kohne was sixty

      years old with significant medical issues, including congenital heart failure, at

      the time of the sentencing hearing; he has been consistently employed for most,

      if not all, of his adult life; he has a clean criminal record; he accepted full

      responsibility for his actions; he showed remorse by apologizing to the

      Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017   Page 4 of 6
      Herrifords’ family and sought their forgiveness; and the pre-sentence

      investigation report indicates he is unlikely to reoffend.


[7]   In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied, the

      defendant was convicted of two counts of causing death while operating a

      motor vehicle with an alcohol concentration equivalent greater than .08 as

      Class C felonies and was sentenced to a maximum sentence of eight years on

      each count, to be served consecutively. Compare Ind. Code § 35-50-2-6(a)

      (providing a person convicted of a Class C felony committed prior to July 1,

      2014, shall be imprisoned between two and eight years, with the advisory

      sentencing being four years), with Ind. Code § 35-50-2-6(b) (providing a person

      convicted of a Level 5 felony after June 30, 2014, shall be imprisoned between

      one and six years, with the advisory sentence being three years). On appeal, the

      defendant challenged the appropriateness of his sentence. In reviewing the

      nature of the offenses, we noted two deaths resulted from the defendant’s crime

      and the defendant attempted to lie about who was driving the vehicles. As to

      the defendant’s character, we further noted the defendant had multiple prior

      convictions and probation violations and was dishonest about who was driving

      the vehicle, thus showing a lack of remorse and an inability to accept

      responsibility. In light of these observations, we concluded the defendant’s

      maximum sentence was not inappropriate. Ricci, 894 N.E.2d at 1095.


[8]   Similar to Ricci, Kohne’s offenses caused the death of two individuals and

      impacted the victims’ family members. In addition, we also note Kohne

      received the maximum sentence on each count, although one year was

      Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017   Page 5 of 6
       suspended. However, unlike the defendant in Ricci, Kohne has a clean criminal

       history, immediately took responsibility for his crimes, and showed remorse.


[9]    In short, two Level 5 felonies running consecutively to one another carry a

       maximum sentence of twelve years executed. The trial court sentenced Kohne

       to just below the maximum giving consideration to the suspended sentence:

       twelve years with two suspended to probation. In light of the nature of the

       offenses and Kohne’s character, we conclude this sentence is inappropriate. On

       remand, we direct the trial court to amend its abstract of judgment and/or

       sentencing order to reflect a sentence on each count of four years in the DOC,

       with one year suspended to probation. The sentences shall be served

       consecutively to one another for a total aggregate sentence of eight years in the

       DOC, with two years suspended to probation.



                                               Conclusion
[10]   Kohne’s sentence is inappropriate in light of the nature of the offenses and his

       character. Accordingly, we reverse and remand with instructions.


[11]   Reversed and remanded.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017   Page 6 of 6
