      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any                       Jun 23 2017, 8:32 am
      court except for the purpose of establishing
                                                                           CLERK
      the defense of res judicata, collateral                          Indiana Supreme Court
                                                                          Court of Appeals
      estoppel, or the law of the case.                                     and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Adam C. Squiller                                         Curtis T. Hill, Jr.
      Squiller & Hamilton, LLP                                 Attorney General of Indiana
      Auburn, Indiana                                          James B. Martin
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Paul Michael Kage, Jr.,                                  June 23, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               76A04-1611-CR-2616
              v.                                               Appeal from the Steuben Superior
                                                               Court
      State of Indiana,                                        The Honorable William C. Fee,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               76D01-1509-F5-750



      Mathias, Judge.


[1]   Paul Michael Kage, Jr., ("Kage") was convicted in Steuben Superior Court of

      Level 5 felony operating a motor vehicle after forfeiture of license for life, and


      Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017     Page 1 of 5
      he was ordered to serve six years executed in the Department of Correction.

      Kage was also adjudicated a habitual offender and was ordered to serve an

      additional two years executed. Kage appeals and argues that his aggregate

      eight-year sentence is inappropriate in light of the nature of his offense and his

      character.


[2]   We affirm.


                                 Facts and Procedural History

[3]   On September 27, 2015, Indiana State Police Trooper Chris Kinsey (“Trooper

      Kinsey”) observed Kage leave a gas station in a vehicle. Trooper Kinsey knew

      Kage from past law enforcement contact and confirmed with a license check by

      Steuben County Communications that Kage was a habitual traffic violator.

      Trooper Kinsey and Patrolman Matt Kling of the Angola Police Department

      subsequently stopped and arrested Kage without incident.

[4]   Kage was charged with Level 5 felony operating a motor vehicle after forfeiture

      of license for life. He was also charged as a habitual offender based on more

      than two prior, unrelated felonies. In September 2016, a jury trial was held and

      Kage was convicted of both charges.

[5]   Kage's sentencing hearing was held on October 17, 2016. The trial court

      observed that Kage’s decision to operate his vehicle despite knowing that he

      had forfeited his license was not mitigated by any emergency circumstance. The

      trial court considered Kage’s criminal history as an aggravating circumstance.

      In addition to the four prior felony convictions used in the state’s habitual
      Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017   Page 2 of 5
      offender allegation against him, Kage’s criminal history includes numerous

      prior felony and misdemeanor convictions. These include convictions for drug

      offenses, battery, invasion of privacy, operating a vehicle while intoxicated, and

      other driving-related offenses. Kage’s criminal history also includes four

      probation revocations. The trial court found no mitigating factors. The trial

      court ordered Kage to serve an aggregate sentence of eight years executed in the

      Department of Correction. Kage now appeals.


                                     Discussion and Decision

[6]   Kage argues that his aggregate eight-year executed sentence is inappropriate in

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

      Appellate Rule 7(B) provides that “[t]he 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.” In conducting our review, “[w]e do not look

      to determine if the sentence was appropriate; instead, we look to make sure the

      sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

      2012). “[S]entencing is principally a discretionary function in which the trial

      court's judgment should receive considerable deference.” Cardwell v. State, 895

      N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant's character (such as substantial virtuous traits of persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Kage

      Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017   Page 3 of 5
      bears the burden to establish that his sentence is inappropriate. Rutherford v.

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


[7]   When considering the nature of the offense, we observe that "the advisory

      sentence is the starting point the Legislature selected as appropriate for the

      crime committed." Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Courts may

      consider the advisory sentence for a crime when imposing a sentence, but courts

      are not required to use an advisory sentence. Ind. Code § 35-50-2-1.3(a-b). The

      advisory sentence for a Level 5 felony is three years, with a sentencing range of

      one to six years. Ind. Code § 35-50-2-6(b). Kage's six-year sentence is the

      maximum available in the Level 5 felony sentencing range. Courts may

      sentence habitual offenders convicted of a Level 5 felony to an additional fixed

      term between two and six years. Ind. Code § 35-50-2-8(i)(2). Kage's two-year

      habitual offender enhancement results in an aggregate sentence of eight years.

      When evaluating whether a sentence is inappropriate, “appellate review should

      focus on the forest – the aggregate sentence – rather than the trees – consecutive

      or concurrent… or length of the sentence on any individual count.” Cardwell,

      895 N.E.2d at 1225.


[8]   The nature of Kage's offense is closely related to the nature of Kage's character.

      Excluding his juvenile criminal history, Kage has exhibited “constant criminal

      activity” since 1997. Appellant’s App. p. 27. The trial court agreed with the

      presentence investigation report conclusion; Kage's criminal history is

      “massive.” Tr. p. 105. His criminal history includes the following offenses

      related to his current offense: two convictions for operating vehicle while

      Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017   Page 4 of 5
       intoxicated, one conviction for driving while suspended, one conviction for

       driving while license not valid, one conviction for habitual traffic offender, and

       one conviction for operating a motor vehicle after a lifetime suspension. Past

       offenses unrelated to the present offense include convictions relating to

       violence, invasion of privacy, drugs, and alcohol. The trial court characterized

       Kage’s criminal history as “on point” with the nature of his present crime. Tr.

       p. 105.


[9]    The trial court found that although Kage cooperated during his arrest and

       respected the court proceedings, his behavior did little to mitigate “a criminal

       history that is this long.” Tr. p. 106. In the court's view, Kage's pattern of

       recidivism is “reflective of [his] mindset” and “disrespectful of the rule of law.”

       Tr. p. 105-6. Considering the length of Kage's criminal history and its relation

       to his most recent convictions, we agree with the trial court that the aggregate

       eight-year sentence is “earned and appropriate.” Tr. p. 106. We conclude that

       Kage has not met his burden of persuading us that his eight-year sentence is

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

       offender. See Anglemyer, 896 N.E.2d at 494.


[10]   Affirmed.


       Kirsch, J., and Altice, J., concur.




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