MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 11 2019, 10:20 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
James Harper                                             Curtis T. Hill, Jr.
Valparaiso, Indiana                                      Attorney General of Indiana

                                                         Michael Vo Sherman
                                                         Certified Legal Intern

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Billy E. McKinney, III,                                  October 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-620
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas J.
Appellee-Plaintiff                                       Alevizos, Judge
                                                         Trial Court Cause No.
                                                         46C01-1810-F5-1195



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019                 Page 1 of 7
                                               Case Summary
[1]   After pleading guilty to one count of failure to register as a sex offender with a

      prior conviction, a Level 5 felony, the trial court sentenced Billy McKinney to

      four years in the Department of Correction (DOC). On appeal, McKinney

      argues that his sentence is inappropriate in light of the nature of the offense and

      his character.


[2]   We affirm.


                                    Facts & Procedural History
[3]   McKinney was convicted of Class C felony child molesting on March 25, 1996,

      and was classified as a sex offender with a lifetime registration requirement. On

      October 28, 2018, Officer Jacob Koch of the LaPorte County Sheriff’s

      Department was notified that McKinney was listed as non-compliant on the

      LaPorte County Sex and Violent Offender Registry (the Registry) due to his

      failure to register his change of address, employment status, and Facebook

      account with the Registry.


[4]   According to the probable cause affidavit 1 prepared by Officer Koch, McKinney

      had been living with his brother and sister-in-law at a residence on Porter Street

      in LaPorte, but they “kicked [him] out of the house” on September 18, 2018,

      after he failed to pay his part of the rent. McKinney also worked at Kingsbury




      1
       The probable cause affidavit was attached to the presentence investigation report that was admitted into
      evidence without objection.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019                   Page 2 of 7
      Elevator most recently from June 27, 2018 until July 25, 2018, when he left his

      employment claiming he was going to work for another company. In addition,

      following up on an anonymous tip, it was discovered that McKinney had a

      social media account through Facebook. Officer Koch confirmed that

      McKinney was not living at the house listed on the Registry and was

      unemployed.


[5]   On October 30, 2018, the State filed an information charging McKinney with

      three different Level 5 felonies: Count I, failure to register a change in his

      employment, Count II, failure to register his change in primary residence within

      seventy-two hours, and Count III, failure to register his social media account

      (Facebook). All three charges alleged that McKinney has a prior, unrelated

      conviction for failure to register. The trial court issued a warrant for

      McKinney’s arrest.


[6]   Around 12:00 p.m. on November 15, 2018, Detective Nick Krause of the

      Fugitive Apprehension Street Team, observed McKinney, who he knew had an

      outstanding arrest warrant, driving a car on Franklin Street. Detective Krause

      was in an unmarked police car, so he requested assistance from a marked patrol

      unit. A traffic stop was initiated in the rear parking lot of a McDonald’s on

      Franklin Street. McKinney was arrested without incident.


[7]   On January 18, 2019, McKinney, pursuant to a plea agreement, pled guilty to

      Count II, and the State agreed to dismiss the remaining charges. The trial court

      held a sentencing hearing on February 15, 2019. The court found McKinney’s


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019   Page 3 of 7
      criminal history, which includes five felony convictions for failing to register, a

      felony conviction for attempted burglary (Mississippi), and several

      misdemeanor convictions, to be an aggravating factor. The court also noted

      that McKinney had numerous violations of probation and had his placement

      revoked several times. With regard to mitigating factors, the court identified

      McKinney’s guilty plea. Finding that the aggravators outweighed the

      mitigators, the trial court sentenced McKinney to four years in the DOC.

      McKinney now appeals. Additional facts will be provided as necessary.


                                       Discussion & Decision
[8]   McKinney argues that his four-year sentence is inappropriate. Pursuant to Ind.

      Appellate Rule 7(B), we “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.” Our Supreme Court has explained that our principal role should be

      to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result in

      each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “‘[W]e must

      and should exercise deference to a trial court’s sentencing decision, both

      because Rule 7(B) requires us to give ‘due consideration’ to that decision and

      because we understand and recognize the unique perspective a trial court brings

      to its sentencing decisions.’” Rogers v. State, 878 N.E.2d 269, 275 (Ind. Ct. App.

      2007) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans.

      denied.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019   Page 4 of 7
[9]    The determination of whether we regard a sentence as inappropriate “turns on

       our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). “The question under

       App. R. 7(B) is ‘not whether another sentence is more appropriate’ but rather

       ‘whether the sentence imposed is inappropriate.’” Miller v. State, 105 N.E.3d

       194, 196 (Ind. Ct. App. 2018) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.

       Ct. App. 2008)). McKinney bears the burden of persuading us that his sentence

       is inappropriate. See id.


[10]   In reviewing the appropriateness of a sentence, we first look to the statutory

       range for the instant offense. The sentencing range for a Level 5 felony is a

       fixed term of between one and six years, with the advisory sentence being three

       years. Ind. Code § 35-50-2-6. The trial court sentenced McKinney to one year

       above the advisory sentence.


[11]   With regard to the nature of the offense, McKinney asserts that “[w]hile

       serious, nothing in the record indicates that the failure to register in this case is

       worse than similar failure to register offenses” and that he “ha[d] simply fallen

       on hard times and made a mistake by failing to change his register.” Appellant’s

       Brief at 10. We note, however, that a sex offender is required to notify local law

       enforcement of a change of principal residence address within seventy-two

       hours. Ind. Code § 11-8-8-8(c). Here, McKinney admitted that he was not

       residing at his registered residence for the twenty-eight-day period identified in

       the charging information. This is well beyond the required seventy-two-hour

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019   Page 5 of 7
       reporting period and indicative of something greater than a mere mistake.

       There is no indication in the record that McKinney ever intended to change his

       registered address. See Rogers v. State, 958 N.E.2d 4, 10 (Ind. Ct. App. 2011)

       (upholding imposition of maximum three-year sentence for Class D felony

       failing to register in light of nature of the offense where defendant “failed to

       register for 26 days” and it was “impossible to predict how long [defendant]

       would have failed to register” if the State had not filed charges). The nature of

       the offense does not warrant a lesser sentence.


[12]   With regard to the character of the offender, McKinney argues that he accepted

       responsibility for his actions, that he was getting married so he had a reason to

       “do what [he has] to do now,” that he was “getting ready to reregister” but “just

       didn’t do it,” and that he promised “with all [his] heart” to obey the law and

       abide by the conditions of probation. Transcript Vol. II at 15-16. McKinney’s

       criminal history, however, is more indicative of his character than his plea to

       the court for leniency. Indeed, this offense is McKinney’s sixth felony

       conviction for failure to register by failing to report to law enforcement changes

       to his Registry information. McKinney also has a felony conviction for

       attempted burglary and several misdemeanor convictions. Further reflecting his

       poor character is McKinney’s extensive history of violating the terms of

       probation and various placements. For example, in 2003, McKinney received

       the benefit of five years of a ten-year sentence being suspended to post-release

       supervision. The post-release supervision was revoked after a short time. In

       2015, McKinney was convicted of Level 5 felony failure to register and received


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019   Page 6 of 7
       the benefit of serving the balance of his four-year sentence in Community

       Corrections. Three months later, his Community Corrections placement was

       revoked after he violated the conditions of work release. Despite being afforded

       leniency, McKinney has failed to alter his behavior and remains undeterred

       from committing new crimes. McKinney’s character does not warrant a lesser

       sentence.


[13]   In light of the nature of the offense and the character of the offender, we

       conclude that McKinney’s four-year sentence is not inappropriate.


[14]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019   Page 7 of 7
