MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Apr 30 2019, 11:48 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
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General
Brooklyn, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas M. Kirby,                                          April 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-3058
        v.                                                Appeal from the Parke Circuit
                                                          Court
State of Indiana,                                         The Honorable Sam A. Swaim,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          61C01-1808-F5-236




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3058 | April 30, 2019                    Page 1 of 5
                                              Case Summary
[1]   Thomas M. Kirby appeals the sentence imposed following his guilty plea to

      level 5 felony intimidation, level 6 felony criminal recklessness, and class A

      misdemeanor battery.1 He argues that his placement in the Department of

      Correction (“DOC”) rather than on home detention is inappropriate based on

      the nature of the offenses and his character. Concluding that Kirby has failed to

      carry his burden to show that his placement is inappropriate, we affirm.


                                  Facts and Procedural History
[2]   On July 19, 2018, Kirby and Vickie Whitesell argued about loud music that was

      playing in the car Kirby was sitting in. Kirby got out of the car and threatened

      Whitesell. He pushed Whitesell against the vehicle and struck her in the jaw.

      Another person present made a comment, and Kirby pulled out a knife and

      began threatening to kill everyone involved.


[3]   The State charged Kirby with level 5 felony intimidation, level 6 felony criminal

      recklessness, and class A misdemeanor battery. Kirby pled guilty to all charges.

      The probation officer recommended a total executed sentence of three years to

      be served in the DOC but suggested that the trial court consider allowing Kirby

      to serve the executed portion of his sentence on home detention. Appellant’s

      App. Vol. 2 at 126. Consistent with the probation officer’s recommendation,




      1
       The appealed order also addresses a probation violation in cause number 61C01-1511-F3-244. However,
      Kirby specifically states that he is not appealing the sentence he received for the probation violation.
      Appellant’s Br. at 7 n.1.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3058 | April 30, 2019                 Page 2 of 5
      the trial court sentenced Kirby to concurrent executed terms of 1095 days for

      his intimidation conviction and 365 days each for the criminal recklessness and

      battery convictions, for an aggregate term of three years.2 As for Kirby’s

      placement, the trial court considered home detention but decided against it:


               Given the severity of the offense, the defendant’s prior history,
               the fact that the Town of Rosedale is a small town, I don’t think
               that home detention would be appropriate given that the
               defendant has not done well on probation either and I don’t think
               that he would do well on home detention. So all this time is to be
               served executed in the Department of Correction.


      Tr. Vol. 2 at 24. This appeal ensued.


                                        Discussion and Decision
[4]   Kirby asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B),

      which states, “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.” When reviewing a sentence, our principal role is to leaven the

      outliers rather than necessarily achieve what is perceived as the correct result in

      each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not

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




      2
         Kirby states that the trial court ordered an aggregate term of four years, but that includes 365 days that the
      trial court reinstated for Kirby’s probation violation in cause number 61C01-1511-F3-244, and Kirby is not
      appealing that sentence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3058 | April 30, 2019                        Page 3 of 5
      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, 895 N.E.2d

      at 1222. “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 or persistent examples of good

      character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess

      the nature of the offenses and character of the offender, “we may look to any

      factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.

      Ct. App. 2013). “The location where a sentence is to be served is an

      appropriate focus for application of our review and revise authority.” King v.

      State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). “Nonetheless, we note that it

      will be quite difficult for a defendant to prevail on a claim that the placement of

      his sentence is inappropriate.” Id. Kirby has the burden to show that his

      sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      clarified on reh’g 875 N.E.2d 218.


[5]   Specifically, Kirby argues that his placement in the DOC is inappropriate and

      that he should serve his sentence on home detention. As for the nature of his

      offenses, his sole contention is that the serious nature of the offenses was

      accounted for in the elevation of the sentences for intimidation and criminal

      recklessness to felonies. We fail to see how this contention bears on the

      appropriateness of his placement in the DOC. Rather, the nature of the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3058 | April 30, 2019   Page 4 of 5
      offenses shows that Kirby brandished a knife during the encounter, creating a

      risk of substantial bodily injury that does not suggest that placement in the

      DOC is inappropriate.


[6]   As for his character, Kirby asserts that he accepted responsibility by pleading

      guilty and has endured hardships that exemplify his character. The presentence

      investigation report shows that he served in the United States Navy in the 1970s

      and was honorably discharged; is disabled and receives V.A. benefits; is under

      the care of the V.A. hospital in Danville, Illinois, for post-traumatic stress

      disorder and liver, kidney, and prostate problems; is blind in his left eye and

      deaf in his right ear; overcame an opioid addiction and has been clean for three

      years; and attempted suicide in 1995 when he shot himself in the head. Kirby

      has experienced hardships, and we are sympathetic to his situation, but these

      hardships alone do not evince virtuous traits and good character. The record

      shows that Kirby was convicted of level 5 felony aggravated battery by means

      of a deadly weapon in January 2017 and was on probation for that conviction

      when he committed the current offenses. These offenses constitute the second

      violation of his probation. His criminal history reflects poorly on his character.

      We conclude that Kirby has failed to carry his burden to show that his

      placement in the DOC is inappropriate in light of the nature of the offenses and

      his character. Therefore, we affirm his sentence.


[7]   Affirmed.


      Bradford, J., and Tavitas, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3058 | April 30, 2019   Page 5 of 5
