MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 09 2019, 9:26 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
Ethan G. Bartanen                                        Curtis T. Hill, Jr.
Bartanen Law Office, LLC                                 Attorney General of Indiana
Salem, Indiana                                           J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyla Kinslow,                                            September 9, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-738
        v.                                               Appeal from the Washington
                                                         Superior Court
State of Indiana,                                        The Honorable Frank Newkirk,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         88D01-1712-F2-883



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019                Page 1 of 9
[1]   Kyla Kinslow appeals her sentence for dealing in methamphetamine as a level 2

      felony. She raises three issues which we consolidate and restate as whether her

      sentence is inappropriate in light of the nature of the offense and her character.

      We affirm.


                                      Facts and Procedural History

[2]   In December 2017, a warrant was issued for Kinslow’s arrest under cause

      number 88D01-1712-F3-871 (“Cause No. 871”) for: Count I, dealing in

      methamphetamine/delivery of methamphetamine as a level 3 felony; Count II,

      dealing in methamphetamine as a level 3 felony; Count III, possession of

      methamphetamine as a level 5 felony; Count IV, neglect of a dependent as a

      level 5 felony; Count V, possession of methamphetamine as a level 5 felony;

      Count VI, maintaining a common nuisance as a level 6 felony; and Count VII,

      maintaining a common nuisance as a level 6 felony.


[3]   When the warrant was executed on December 18, 2017, Kinslow was in her

      home with numerous plastic baggies containing at least ten grams of

      methamphetamine. The State charged Kinslow under cause number 88D01-

      1712-F2-883 (“Cause No. 883”) with Count I, dealing in methamphetamine as

      a level 2 felony; Count II, maintaining a common nuisance as a level 6 felony;

      Count III, possession of marijuana as a class B misdemeanor; and Count IV,

      possession of paraphernalia as a class C misdemeanor.


[4]   On December 18, 2018, Kinslow filed a plea agreement in which she agreed to

      plead guilty to dealing in methamphetamine as a level 2 felony in Cause No.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019   Page 2 of 9
      883 and the State agreed to dismiss all other counts under that cause number as

      well as the counts under Cause No. 871.


[5]   On December 19, 2019, the court held a hearing, and Kinslow pled guilty. On

      March 5, 2019, the court held a sentencing hearing. The State presented the

      testimony of Eric Mills, an employee of the Salem City Police Department

      assigned to the Drug Task Force, who stated that he was familiar with Kinslow

      and obtained an arrest warrant and a search warrant based on two controlled

      buys. He indicated that one of the conversations recorded during a controlled

      buy mentioned that Kinslow was headed to swim practice, and he learned

      through his investigation that she was a coach for a local swim club and had

      been offered a position to teach a middle school swim team. He testified that

      there were multiple adults and three children, including Kinslow’s own child,

      present when the search warrant was executed, and that methamphetamine

      residue on a mirror or piece of glass was present in the general area of the home

      and would have been accessible to multiple people in the home. He testified

      that some drug paraphernalia was found in a child’s room and a glass smoking

      pipe was found in the living room. He also indicated that Kinslow stated that

      she sold to about twenty-five people in the community. The court admitted

      recordings of the controlled buys, conversations regarding drug dealing which

      occurred on Facebook, and letters Kinslow wrote to another person while they

      were both incarcerated.


[6]   Kinslow presented the testimony of her mother who stated that she believed her

      daughter was an addict and that long-term separation would have a negative

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019   Page 3 of 9
      effect on Kinslow’s child. Garo Kashian testified that he worked with jail

      programs, that he met Kinslow on February 13, 2018, that she participated and

      successfully completed three programs with him including a certified substance

      abuse education program, and that it was possible that she would turn her life

      around. Reverend Anastassia Zinke testified that he believed Kinslow’s

      daughter would be significantly harmed by a long incarceration period. Valerie

      Richardson testified that Kinslow worked as one of her accountants for years

      and that she thought Kinslow needed rehab.


[7]   Kinslow testified that she was high most of the time between August and

      December 2017 “with the exception of a few hours here and there.” Transcript

      Volume II at 86. When asked if she did what she could to protect her daughter,

      she answered: “Yes and no. Yes, because despite everything else I love my

      daughter. Um, and even if I wasn’t selling drugs in front of her or directly in

      her presence, I still placed her in a position that was unsafe for her.” Id. She

      testified that she was previously addicted to cocaine, overcame that addiction,

      was clean for seven years before using methamphetamine, and believed she

      could overcome that addiction. She stated “I’m ashamed of the depth to which

      . . . I had fallen” and “I’ve placed this undue burden on my community, on my

      family, on the people that knew me and respected me.” Id. at 98. She also

      stated: “I know that I am fully accountable and I know that there are

      consequences for my actions. I just want to say that I’m sorry. Deeply sorry.”

      Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019   Page 4 of 9
[8]   The probation officer who completed the presentence investigation report

      (“PSI”) recommended a sentence of twenty years with two years suspended to

      supervised probation. The PSI also states:


              This officer spoke with Shawn Hurst of the Hoosier Hills PACT
              Office Community Corrections. Shawn stated that she felt it
              would be beneficial for the defendant to receive Purposeful
              Incarceration while at the Indiana Department of Correction.
              She also stated that if the defendant doesn’t receive Purposeful
              Incarceration, she would recommend that any suspended time
              would be done with Day Reporting as a term of the defendant’s
              probation.


      Appellant’s Appendix Volume II at 31. The prosecutor recommended a

      sentence of twenty-five years with five years suspended. Kinslow’s counsel

      stated: “I don’t care how long the sentence is. I care how it is spent.”

      Transcript Volume II at 103. He also stated: “We would ask the Court to

      suspend a portion of the time sentenced, Your Honor, and allow my client to

      participate in the available rehabilitation within the prisons or without the

      prison so that we can get back to what we can do.” Id.


[9]   The court stated:


              [T]he aggravating circumstances include that you do have a
              history of criminal activity. Mitigating that you did admit your
              crime and you’ve entered into an open plea accepting the
              judgment of the Court. But one of the things that the State
              brought up had to do with character and whether to, how your
              character might figure into this. And actually as I thought more
              and more about it and considered the exhibits, I want to tell you
              some things that I saw about character. One is you did have

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019   Page 5 of 9
        your children around during drug sales. You had drugs and
        paraphernalia where the children had access to it. And I realize
        you have one child, but there are other children in the house.
        That in your text messages you talked about giving Xanax to the
        children before bedtime. And of course, whether you did or you
        didn’t, it is clear from your text messages that you were out
        making drug deliveries while your child was home in bed.
        Which is, you know, just one piece of the puzzle here in trying to
        figure out what your character is. You were breaking the jail
        rules by passing notes and letters and in the letter or in your
        explanation yesterday that it was because you were expecting
        that he was going to be out. It’s clear from the context of the
        letter that you knew he wasn’t out. You were talking about how
        you were working, you were sorry you weren’t able to get him
        out yet. You recruited other people to sell drugs for you. You
        were supplying a large number of people with drugs. You said,
        in one of your letters, and I think this is very telling. I mean you
        were running this as a business. It wasn’t, as the prosecutor
        pointed out, it wasn’t like somebody who was using drugs and
        selling a little bit once in a while to get by, you had an ongoing
        business. Which was organized with ledgers and associates and
        underlings that were doing your bidding. And you said in one of
        your letters that you wanted this other person out of jail so that
        he could get rid of your snitches. That’s ruthless, that’s criminal
        activity. That’s exactly what the drug dealing statutes are meant
        to deal with. You’re getting the advisory sentence of seventeen
        and a half years. None of it is suspended. . . . The other charges,
        the other counts are being dismissed as a part of the agreement.
        And I’m not recommending purposeful incarceration. You may
        have a drug issue but this is mainly criminal activity and not
        addiction.


Id. at 107-108. In its order, the court also mentioned a reduced sentence would

depreciate the seriousness of the charges. The court sentenced Kinslow to

seventeen and one-half years.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019   Page 6 of 9
                                                   Discussion

[10]   The issue is whether Kinslow’s sentence is inappropriate in light of the nature of

       the offense and her character. Kinslow argues that her willingness to plead

       guilty should serve as a positive when examining her character. She asserts that

       she was a productive member of society as someone who worked in a tax

       business and as a youth swim coach prior to her relapse. She also argues that

       some suspended time or purposeful incarceration should have been considered

       to allow for rehabilitation and treatment under the monitoring of the probation

       department. The State argues that the advisory sentence, which was less than

       that recommended by the probation officer in the PSI, was not inappropriate.


[11]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court's decision, [we find] that the

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

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[12]   Ind. Code § 35-50-2-4.5 provides that a person who commits a level 2 felony

       shall be imprisoned for a fixed term of between ten and thirty years with the

       advisory sentence being seventeen and one-half years.


[13]   Our review of the nature of the offense reveals that Kinslow committed dealing

       in methamphetamine in the same house in which children were present

       including her own daughter. Our review of the character of the offender reveals


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019   Page 7 of 9
       that Kinslow pled guilty to dealing in methamphetamine as a level 2 felony and

       the State agreed to dismiss counts of maintaining a common nuisance as a level

       6 felony, possession of marijuana as a class B misdemeanor, and possession of

       paraphernalia as a class C misdemeanor under Cause No. 883 as well as counts

       under Cause No. 871. As an adult, Kinslow was charged with theft as a class D

       felony and forgery as a class C felony in 2007, and she pled guilty in 2008 to

       theft as a class D felony. In 2009, she was charged with forgery as a class C

       felony and theft as a class D felony, but the charges were dismissed in 2010 by

       agreement. The PSI indicates that Kinslow previously had part of a suspended

       sentence revoked based upon new charges and had to serve a portion of her

       suspended sentence incarcerated in Kentucky. She joined the United States

       Navy in 2006 and reported that she completed basic training but received an

       “other than honorable discharge” after she started using again. Appellant’s

       Appendix Volume II at 29.


[14]   She reported that she began smoking marijuana when she was about eighteen

       years old, smoked it on a regular basis until 2002, tried cocaine for the first time

       in 2004 which escalated into a habit, was sober from 2009 to 2016, and tried

       methamphetamine in December 2016 and “it quickly went out of control.” Id.

       The PSI indicates that her overall risk assessment score places her in the

       moderate risk to reoffend category.


[15]   After due consideration, we conclude that Kinslow has not sustained her

       burden of establishing that the advisory sentence is inappropriate in light of the



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019   Page 8 of 9
       nature of the offense and her character. 1 To the extent Kinslow asserts that the

       trial court erred in not recommending her for the purposeful incarceration

       program, we note that the trial court stated that it was not recommending her

       for purposeful incarceration and stated: “You may have a drug issue but this is

       mainly criminal activity and not addiction.” Transcript Volume II at 108. In

       light of the evidence including Mills’s testimony in which he indicated that

       Kinslow stated that she sold to twenty-five people in the community, we cannot

       say that reversal is warranted on this basis.


[16]   For the foregoing reasons, we affirm Kinslow’s sentence.


[17]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       1
         To the extent Kinslow argues that the court abused its discretion by failing to consider her remorse, the
       undue hardship on her child imprisonment would cause, and her drug addiction as mitigators, we need not
       address this issue because we find that her sentence is not inappropriate under Ind. Appellate Rule 7(B). See
       Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order,
       Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence
       pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013)
       (holding that “even if the trial court did abuse its discretion by failing to consider the alleged mitigating factor
       of residual doubt, this does not require remand for resentencing”), trans. denied. Even if we were to consider
       Kinslow’s abuse of discretion argument, we would not find it to be persuasive in light of the trial court’s
       comments and the record.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-738 | September 9, 2019                        Page 9 of 9
