Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                      Sep 11 2013, 5:49 am
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

STEVEN RIPSTRA                                     GREGORY F. ZOELLER
Ripstra Law Office                                 Attorney General of Indiana
Jasper, Indiana
                                                   JODI KATHRYN STEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

JANE KLEAVING,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 74A04-1209-CR-472
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE SPENCER CIRCUIT COURT
                            The Honorable Jon A. Dartt, Judge
                              Cause No. 74C01-1111-FA-245



                                       September 11, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Following a jury trial, Jane Kleaving (“Kleaving”) appeals her conviction for

conspiracy to commit murder as a Class A felony,1 raising the following three restated issues:

        I.        Whether the State presented sufficient evidence to support the
                  conviction;

        I.        Whether the trial court erred when it excluded Kleaving’s proffered
                  evidence that she suffered from diminished mental capacity; and

        III.      Whether Kleaving’s thirty-year sentence was proper.

        We affirm.

                            FACTS AND PROCEDURAL HISTORY

        Kleaving and her husband, Kevin, are the parents of Laura, who has a daughter, A.K.,

born in January 2006. A.K.’s father is Kyle McPherson (“McPherson”). Laura, McPherson,

and A.K. lived with Kleaving and Kevin at their home in Tell City, Indiana, for several years,

starting in late 2004 or early 2005. McPherson’s job as a boilermaker required him to travel

and be gone for weeks at a time, and Laura worked and took college courses; while A.K.’s

parents were gone, Kleaving was her primary caregiver.

        The facts most favorable to the jury’s verdict show that in April 2006, a few months

after A.K.’s birth, and without McPherson’s knowledge, Kleaving and Kevin filed for a

temporary guardianship of A.K, which may have been intended for the purpose of acquiring

health insurance for the child.2 In any event, relationships deteriorated, and in June 2008,


        1
            See Ind. Code §§ 35-42-1-1, 35-41-5-2.
        2
          The affidavit filed with the court in support of service by publication of the guardianship petition
stated that “[t]he exact whereabouts of [McPherson] is not known,” although McPherson was living with
Kleaving at her residence at the time. Tr. at 698-99.


                                                      2
McPherson permanently moved out of Kleaving’s residence. McPherson learned about the

guardianship proceedings in late 2008 or early 2009. In December 2008, McPherson filed a

paternity action to establish his fatherhood of A.K. and establish visitation with her.

Extensive litigation ensued, including various allegations that McPherson abused A.K.

Multiple allegations of abuse were lodged against McPherson, but they were not

substantiated. The trial court ordered that McPherson have supervised visitation with A.K.,

and McPherson sought to modify the order to gain joint custody.

       Kleaving continued to harbor the belief and concern that McPherson was abusive to

A.K., and she became increasingly protective and possessive of A.K. In early 2010,

Kleaving obtained a psychic reading from a paranormal consultant and life coach named

Rich Hayes (“Hayes”). Hayes told Kleaving he was concerned about A.K. and her safety

and, based on his future predictions, if things did not change, A.K. would kill herself before

the end of 2012. In an effort to help Kleaving, Hayes introduced Kleaving to Kathy

Griepenstroh (“Griepenstroh”), who was a massage therapist and reflexologist, but who also

conducted private investigative work, often at no charge. Kleaving and Griepenstroh became

close friends.   Kleaving told Griepenstroh that McPherson was abusing A.K., and

Griepenstroh agreed to help Kleaving investigate the matter. Griepenstroh began following

and videotaping McPherson during his visits with A.K. Kleaving began to convince

Griepenstroh that McPherson was abusing A.K., and Griepenstroh increased her involvement

on Kleaving’s behalf by contacting child protective services, law enforcement, television

stations, child advocacy groups, the Governors’ offices of Indiana and Kentucky, and


                                              3
Michelle Obama. Kleaving talked with Griepenstroh about the abuse “[a]ll the time” in front

of A.K., as well as her dislike for McPherson. Tr. at 1002. At some point, Kleaving told

Griepenstroh that she wished McPherson would die.

       Eventually, in September 2010, Kleaving asked Griepenstroh to kill McPherson for

her. “You love [A.K.], kill [McPherson] for her.” Id. at 1003, 1006. Griepenstroh refused

and advised Kleaving that it was “so wrong,” but Kleaving stated that she did not care and

would talk to other people to accomplish it. Id. at 1003.

       At some point, Kleaving contacted a long-time family acquaintance, Jeff Schneider

(“Schneider”), and told him she believed McPherson was abusing A.K. and that a psychic

had told her that McPherson was going to make A.K. disappear. Kleaving indicated she

would personally make McPherson disappear if she could get away with it. Although he

made reference to the idea that she could stage a hunting accident, Schneider encouraged

Kleaving to let the court system handle the situation.

       Around the same time frame, Kleaving asked Griepenstroh to find a hit man for her.

Griepenstroh agreed but privately intended, at this point, to contact the authorities. In order

to have cell phones not associated with her name, in September 2011, Kleaving contacted her

cousin, who lived in Florida, and asked her to purchase and mail a GoPhone to Griepenstroh,

which the cousin did.

       On September 13, 2011, Griepenstroh contacted authorities, who upon investigation,

determined that Kleaving posed a threat to McPherson. The Jasper Police Department

contacted Sergeant Steven Sands (“Sergeant Sands”) of the Indiana State Police for


                                              4
assistance with the murder-for-hire investigation. Griepenstroh provided the Florida

GoPhone to Sergeant Sands, who it was decided would pose as a contract killer, and

Griepenstroh provided the authorities with Kleaving’s TracPhone number, which had a Texas

area code. On Tuesday November 8, Sergeant Sands, using the GoPhone and identifying

himself with the fictitious name of “Vic,” contacted Kleaving on her TracPhone. Tr. at 529.

Kleaving confirmed she was expecting his call. Sergeant Sands suggested that they meet,

and Kleaving replied, “where and when?” Id. at 601. Sergeant Sands suggested that they

meet two days later, on Thursday, at the Troy Boat Ramp, but Kleaving said that Thursday

was not a good day, so Sergeant Sands suggested that they meet on Friday (November 11).

He told Kleaving he would need a picture of McPherson and an address for him. When

Sergeant Sands suggested that they meet at 9:00 a.m. at the boat ramp, Kleaving asked Sands

if he could wait until after the paternity court ruling regarding custody and visitation, and he

told Kleaving it was her decision and, in fact, noted she might not have to go through with it

if the judge made some sort of ruling. Id. at 603; State’s Ex. 12 at 11. Kleaving reiterated

that she wanted “him” to go away, never ever come home and never be found. State’s Ex.

12 at 12. Later that night, Kleaving talked to Griepenstroh, telling her that she had arranged

to meet the hit man on Friday and pay him $500, but she had changed her mind.

Griepenstroh told Kleaving she was pleased to hear that Kleaving had changed her mind.

       However, on the morning of Friday November 11, Kleaving called Sergeant Sands.

She requested to change their meeting location from Troy Boat Ramp to Lincoln Ferry Park

at 11:00 a.m. because she was concerned that Kevin was working in the area of the boat


                                               5
ramp. She gave Sergeant Sands directions to Lincoln Ferry Park. At 11:00 a.m. Sergeant

Sands proceeded to Lincoln Ferry Park. Kleaving was already there and waiting in her

vehicle when he arrived. Sergeant Sands pulled his vehicle next to hers, and he invited

Kleaving to sit in his vehicle, which she did. Sergeant Sands had three recording devices in

operation. Kleaving handed Sergeant Sands a sealed envelope containing $500 in cash, a

photograph of McPherson, and computer printout of information about McPherson. She

advised Sergeant Sands where McPherson was working, and she described the vehicle he

drove.

         Kleaving told Sergeant Sands, “I don’t have a lot of money because I’ve spent it all on

investigators,” to which Sergeant Sands responded, “[I]t’s going to cost you 10, plus the

expense money.” State’s Ex. 13 at 9. Kleaving asked if he could come down in price or even

do it for free, and he replied he would not. Kleaving offered her Yukon vehicle as $3,000

partial payment, which was acceptable to Sergeant Sands. She then retrieved the Yukon title

and gave it to Sergeant Sands. During the conversation, Sergeant Sands suggested that, to

obtain the remaining $6,500, they could stage a burglary at Kleaving’s residence, where he

would steal items the value of which he would apply toward the remaining money owed.

Kleaving could later seek insurance money to cover the theft. Kleaving agreed and stated she

would contact him with a date when she was certain no one would be home. She also

indicated she would unlock the gun safe in the basement for him so that its contents could

easily be accessed.




                                                6
       At one point, Kleaving expressed her thoughts that perhaps they should wait to learn

the court’s ruling regarding custody and visitation before taking further steps; Sergeant Sands

responded that the decision if and how to proceed was hers, but noted he could not wait a

month or else it would cost her more since he would need to travel back to Texas and then

return to Indiana. Kleaving did not end the meeting or further indicate her desire to terminate

the plan. Rather, Kleaving talked at length about her belief that McPherson had abused A.K.,

that the psychic had said A.K. would commit suicide in the year 2012, and that she was

convinced McPherson would eventually harm or kill A.K. While Kleaving stated she did not

want to know the details of how McPherson was killed, and just wanted him to go away and

never be seen again, she told Sergeant Sands to cut off McPherson’s penis and “stick it up his

ass” and suggested that McPherson’s body could be dumped at the Addison Dam. Id. at 6,

23-26, 30. Their meeting concluded with Sergeant Sands advising Kleaving he would be

waiting to hear from her, and she stated, “I’ll call and tell you when.” Id. at 49. Kleaving

was arrested as she left.

       The State charged her with Class A felony conspiracy to commit murder and Class D

felony conspiracy to commit insurance fraud. Prior to trial, the State filed a motion in limine

to exclude the testimony of Dr. Thomas Holsworth, Ph.D. (“Dr. Holsworth”), who met with

Kleaving in January 2012, two months after her arrest and while she was incarcerated, and

performed a psychological evaluation. The State argued that the report was prepared after

Kleaving’s incarceration and was not relevant to her state of mind at the time of the offense

and, further, was prepared for legal purposes, not for her diagnosis or treatment; thus, the


                                              7
alleged hearsay and self-serving statements were not admissible under any hearsay exception.

The trial court took the motion under advisement, but prior to trial, it granted the motion “for

trial purposes,” stating that the doctor’s testimony and report were not admissible at trial, but

that it might be admissible at sentencing and would be considered at that time. Tr. at 344.

       Kleaving asserted the defense of entrapment, and the jury was instructed on the

defense in both preliminary and final instructions. Appellant’s App. at 269, 303. Kleaving

did not offer Dr. Holsworth’s testimony or report during the July 2012 trial or make any offer

of proof.

       The jury acquitted Kleaving on the insurance fraud charge but found her guilty of

conspiracy to commit murder. At the conclusion of the sentencing hearing, the trial court

identified as aggravating circumstances Kleaving’s lack of remorse and that a reduced

sentence would depreciate the seriousness of the crime. “Were it not for Indiana State Police

intervention in this case, this case could very well have resulted in a homicide.” Sent. Hr’g

Tr. at 103. The trial court recognized as mitigating factors that Kleaving did not have a

criminal history and that she had mental health issues. Ultimately, the trial court determined

that the advisory thirty-year sentence for the Class A felony was just and appropriate.

Kleaving now appeals.

                              DISCUSSION AND DECISION

                             I.     Sufficiency of the Evidence

       Kleaving contends that the evidence was not sufficient to support a conspiracy to

commit murder conviction. To convict Kleaving of conspiracy to commit murder, the State


                                               8
had to prove that, while having the intent to commit murder, Kleaving entered into an

agreement to commit murder and she performed an overt act in furtherance of the agreement.

Ind. Code § 35-41-5-2; Dickenson v. State, 835 N.E.2d 542, 549 (Ind. Ct. App. 2005), trans.

denied. Conspiracy to commit murder requires proof of an agreement, but not necessarily of

a killing. Smith v. State, 655 N.E.2d 532, 546 (Ind. Ct. App. 1995), trans. denied. On

appeal, Kleaving concedes that “[she] objectively exhibited the intent to have McPherson

killed,” and she does not challenge the existence of an agreement or overt act in furtherance

of it; rather, she maintains that “[she] is not culpable because she was entrapped.”

Appellant’s Br. at 8.

       When we review a claim of entrapment, we use the same standard that applies to other

challenges to the sufficiency of evidence. Lahr v. State, 640 N.E.2d 756, 760 (Ind. Ct. App.

1994), trans. denied.

       We consider only the evidence that supports the verdict, and we draw all
       reasonable inferences from that evidence. We will neither reweigh the
       evidence nor judge the credibility of witnesses. We will uphold a conviction if
       the record supports it with substantial evidence of probative value from which
       a reasonable trier of fact could infer that the appellant was guilty beyond a
       reasonable doubt.

Ferge v. State, 764 N.E.2d 268, 270 (Ind. Ct. App. 2002).

       Indiana Code section 35-41-3-9 defines the defense of entrapment and provides:

       (a) It is a defense that:

              (1) the prohibited conduct of the person was the product of a law
              enforcement officer, or his agent, using persuasion or other means
              likely to cause the person to engage in the conduct; and

              (2) the person was not predisposed to commit the offense.

                                             9
       (b) Conduct merely affording a person an opportunity to commit the offense
       does not constitute entrapment.

Ferge, 764 N.E.2d at 271. When an accused raises this defense, the prosecution must prove

that he was not innocently lured and enticed into the criminal activity. Williams v. State, 274

Ind. 94, 97, 409 N.E.2d 571, 574 (Ind. 1980). The defense of entrapment turns upon the

defendant’s state of mind, or whether the criminal intent originated with the defendant. Kats

v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied.

       The defense of entrapment may be rebutted by showing the defendant had a

predisposition to commit the crime. Lahr, 640 N.E.2d at 760. The following factors are

important in determining whether a defendant was predisposed to commit the charged crime:

       1) the character or reputation of the defendant, 2) whether the suggestion of
       criminal activity was originally made by the government, 3) whether the
       defendant was engaged in criminal activity for a profit, 4) whether the
       defendant evidenced reluctance to commit the offense, overcome by
       government persuasion, and 5) the nature of the inducement or persuasion
       offered by the government.

Ferge, 764 N.E.2d at 271. Whether a defendant was predisposed to commit the crime

charged is a question for the trier of fact. Id. The State must prove the defendant’s

predisposition beyond a reasonable doubt. Id.

       Kleaving argues on appeal that the police “fueled and encouraged her fear” that A.K.

was going to be harmed or killed and tried to “lure” her into committing the crime.

Appellant’s Br. at 7, 14. We disagree. The record before us reveals that Kleaving became

increasingly obsessed with her granddaughter, A.K. Harboring concern that the child was

being abused by McPherson, Kleaving sought out advice from Hayes, a psychic reader, who

                                              10
predicted the child’s demise in 2012 if circumstances did not change. Through Hayes,

Kleaving met Griepenstroh who agreed to use her private investigation skills to assist

Kleaving, and who then followed and videotaped McPherson and contacted a variety of

officials and media outlets on Kleaving’s behalf. Eventually, Kleaving asked Griepenstroh to

kill McPherson, but Griepenstroh refused.          Kleaving also discussed the matter with

Schneider, a family friend, who mentioned the idea that a hunting accident could be staged.

Continuing on the course of eliminating McPherson, Kleaving obtained what she believed to

be untraceable pre-paid cell phones, asking her Florida cousin to purchase a GoPhone and

mail it to Griepenstroh, with the plan that Griepenstroh give that phone to a hit man who

would have instructions to call Kleaving with it. Once she received that phone call from

“Vic,” who was actually Sergeant Sands, Kleaving asked “where and when” they should

meet. Tr. at 601. Kleaving arrived at the designated location with $500 in cash, along with

the title to her vehicle as additional payment. When Sergeant Sands mentioned the idea of

faking a burglary to her home, for which she could later seek insurance money, Kleaving

agreed and offered the idea of leaving open her husband’s gun safe so that its contents could

easily be accessed. During the meeting with Sergeant Sands, she suggested the idea of

disposing of McPherson’s body at a location called Addison’s Dam, where his body would

not be found. From these facts, the jury had ample evidence to find that Kleaving was

predisposed to commit the crime.

       Kleaving asserts that the authorities, through the conduct of Sergeant Sands, were

controlling her in a number of ways. For instances, she argues, police, not Kleaving, initiated


                                              11
the meeting, when Sergeant Sands called her on November 8. In his testimony, Sergeant

Sands explained that he contacted her because he understood Kleaving was awaiting the call

from the hit man. Consistent with that, the record reveals that upon receiving the phone call,

Kleaving did not inquire who was calling or why. Instead, her reaction was that she was

expecting the call. Further, when Sergeant Sands suggested they meet in person, her first

response was “where and when.” Tr. at 601.

       Kleaving also asserts that Sergeant Sands was controlling her when she met with him

a few days later on November 11 because he expressed an unwillingness to wait too long to

proceed, which she claims imposed a sense of urgency upon her. Sergeant Sands testified

that it was his job to determine her level of commitment and assess the threat level to

another’s life. For instance, he explained, if the subject is willing to pay $10,000 and figure

out a way to come up with the money, he or she is serious. We recognize that at one point

Kleaving expressed her thoughts that because there were pending motions regarding

visitation in front of the paternity court, perhaps she should wait for a ruling, and Sergeant

Sands told Kleaving it would cost her $5000 more if they waited a month or more to proceed,

because that would require him to return to Texas and come back to Indiana. However, he

also told her, “Well it’s your decision. If the judge is going to make some type of ruling, you

may not want to go through with this.” Id. at 603. At no point did Kleaving express a desire

to end the meeting or terminate the plan.

       Based on the record before us, the evidence supports a finding that Kleaving was not

induced to enter into this conspiracy to commit murder and that she was predisposed to do so.


                                              12
The conduct of the police merely afforded her an opportunity to commit the offense and does

not constitute entrapment. There was sufficient evidence to support the jury’s rejection of

Kleaving’s entrapment defense.

                               II.     Exclusion of Evidence

       In January 2012, two months after Kleaving’s arrest and while she was incarcerated,

Dr. Holsworth met with and conducted a psychological evaluation of Kleaving. His purpose

was to determine her competency to stand trial. Sent. Hr’g Tr. at 50. Prior to trial, Kleaving

disclosed that she intended to present Dr. Holsworth’s testimony and report in support of her

entrapment defense, arguing that his report was relevant to her state of mind, specifically that

she suffered from diminished mental capacity and a fragile mental state, which made her

especially susceptible to the idea and suggestion that McPherson be killed. The State’s

motion in limine to exclude the evidence, which the trial court granted, asserted that the

report contained self-serving, hearsay statements, was based on Kleaving’s state of mind

after the crime had been committed, and was not relevant because Kleaving did not file an

insanity defense. Kleaving now asserts that the trial court erred when it excluded Dr.

Holsworth’s testimony and report because it would have supported her theory that she “did

not have the requisite state of mind to be guilty of the alleged conspiracy.” Appellant’s Br. at

10.

       A trial court is accorded discretion in ruling on the relevancy and admissibility of

expert evidence. Schmidt v. State, 816 N.E.2d 925, 937 (Ind. Ct. App. 2004), trans. denied.




                                              13
We will not reverse a trial court’s decision absent an abuse of discretion, that is, where the

decision is clearly against the logic and effect of the facts and circumstances before it. Id.

       In this case, Kleaving offered the report at the hearing on the motion in limine, but

made no offer of proof during trial. “Rulings on motions in limine are not final decisions

and, therefore, do not preserve errors for appeal.” Swaynie v. State, 762 N.E.2d 112, 113

(Ind. 2002). Because Kleaving did not attempt to introduce the evidence at trial or otherwise

make an offer to prove, she has waived the issue. Id; see also Black v. State, 829 N.E.2d 607,

610 (Ind. Ct. App. 2005), trans. denied (holding that defendant failed to preserve issue for

appeal where he failed to request relief from trial court’s ruling on State’s motion in limine).

                                      III.   Sentencing

       Following a sentencing hearing, the trial court imposed the advisory thirty-year

sentence for Kleaving’s Class A felony conviction. Ind. Code § 35-50-2-4 (sentence range is

twenty to fifty years, with advisory sentence being thirty); Reid v. State, 876 N.E.2d 1114,

1116 (Ind. 2007). We initially observe that sentencing decisions rest within the sound

discretion of the trial court and are reviewed on appeal only for an abuse of discretion.

Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012) (citing Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007)). An abuse of discretion occurs if the decision is “clearly

against the logic and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom.” Id. The trial court can abuse its

discretion by (1) issuing an inadequate sentencing statement, (2) finding aggravating or

mitigating factors that are not supported by the record, (3) omitting factors that are clearly


                                              14
supported by the record and advanced for consideration, (4) or by finding factors that are

improper as a matter of law. Gleason, 965 N.E.2d at 710 (citing Laster v. State, 956 N.E.2d

187, 193 (Ind. Ct. App. 2011)).

       Here, Kleaving challenges her sentence in several respects, arguing that (1) the trial

court did not enter a sentencing statement, (2) the trial court failed to consider a significant

mitigating circumstance, and (3) the sentence is inappropriate. We consider each in turn.

                                A.     Sentencing Statement

       Trial courts are required to enter sentencing statements when imposing a sentence for

a felony offense. Gleason, 965 N.E.2d at 710 (citing Anglemeyer, 868 N.E.2d at 490).

Certain requirements for the sentencing statement exist:

       The statement must include a reasonably detailed recitation of the trial court’s
       reasons for imposing a particular sentence. If the trial court includes
       aggravating or mitigating circumstances in its sentencing statement, it must
       identify all of the significant circumstances and “explain why each
       circumstance has been determined to be aggravating or mitigating.”

Id. (internal citations omitted).

       Here, the trial court issued a written Order on Sentence, in which the trial court stated

it had considered Kleaving’s lack of a prior criminal record and the pre-sentence

investigation report. Kleaving asserts that the Order “did not identify any specific mitigators

or aggravators . . . nor did it explain why each factor was aggravating or mitigating,” and

therefore, the trial court failed to issue “an appropriate sentencing statement,” which requires

us to remand for resentencing. Appellant’s Br. at 24-25.




                                              15
       Upon review of the record before us, we disagree. When reviewing the sufficiency of

the sentencing statement, we examine both the trial court’s written and oral statements.

Gleason, 965 N.E.2d at 710. At the sentencing hearing, the trial court identified Kleaving’s

lack of remorse, and her pattern of “continuously blaming others,” as an aggravating

circumstance. Sent. Hr’g Tr. at 103-04. The trial court also observed that “[t]his is a very

serious crime,” and “[w]ere it not for Indiana State Police intervention in this case, this case

could very well have resulted in a homicide,” identifying as an aggravator “that a reduced

sentence would depreciate the seriousness of the crime.” Id. The trial court identified as

mitigating factors that Kleaving had no criminal history of any kind and that Kleaving

suffered from mental health issues. We find that the trial court’s Order and oral sentencing

statement were sufficiently detailed to support the imposition of the thirty-year advisory

sentence.

                             B.      Failure to Find Mitigator

       One of the factors that a trial court may consider as a mitigating factor is whether

imprisonment of the person will result in undue hardship to the person or the dependents of

the person. Ind. Code § 35-38-1-7.1(b)(10). Kleaving asserts that the trial court failed to

consider as a mitigating circumstance that her husband, Kevin, would suffer hardship if she

was sentenced to an extended period of incarceration.

       When a defendant offers evidence of mitigators, the trial court has the discretion to

determine whether the factors are indeed mitigating, and the trial court is not required to

explain why it does not find the proffered factors to be mitigating. Patterson v. State, 846


                                              16
N.E.2d 723, 727 (Ind. Ct. App. 2006). An allegation that the trial court failed to identify or

find a mitigating factor requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record. Flickner v. State, 908 N.E.2d 270, 273 (Ind.

Ct. App. 2009).

       Here, at sentencing, Kevin testified that he has been owner and proprietor of a heating

and air conditioning business for thirty years. He and Kleaving are the only employees, with

Kevin handling all the manual labor and Kleaving being solely responsible for all the

bookkeeping, scheduling, and paperwork. He testified that, during Kleaving’s incarceration,

he was falling behind in scheduling, was having difficulty keeping up with the business, and

was considering closing it. He further noted that he and Kleaving had been married thirty-

two years and, since her absence, he was having difficulty eating and sleeping. On appeal,

Kleaving urges us to find that his testimony establishes that an extended sentence in the

Department of Correction imposes a substantial hardship on him and his livelihood.

       As the State asserts, many defendants have family members, such as children or

spouses, who are burdened by the defendant’s incarceration. There was no evidence

presented that Kleaving was the only person who could perform the managerial duties of the

family business, and Kleaving has not demonstrated that any hardship suffered by Kevin is

“undue” in the sense that it is any worse than that suffered by other dependents. The trial

court did not abuse its discretion in not finding undue hardship to be a mitigating factor.




                                               17
                               C.      Inappropriate Sentence

       Kleaving argues that her sentence of thirty years was inappropriate in light of the

nature of the offense and her character. We may revise a sentence after careful review of the

trial court’s decision if we conclude that the sentence is inappropriate based on the nature of

the offense and the character of the offender. Ind. Appellate Rule 7(B). Under this rule, the

burden is on the defendant to persuade the appellate court that his or her sentence is

inappropriate. Reid, 876 N.E.2d at 1116; McMahon v. State, 856 N.E.2d 743, 749 (Ind. Ct.

App. 2006). Even if the trial court followed the appropriate procedure in arriving at its

sentence, the appellate court still maintains a constitutional power to revise a sentence it finds

inappropriate. Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005). Nevertheless, the

reviewing court “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.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Further, “[t]he

principal role of appellate review should be to attempt to leaven the outliers, and identify

some guiding principles for trial courts . . . but not to achieve a perceived ‘correct’ result in

each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Here, Kleaving argues

that the thirty-year sentence was excessive and that the nature of the offense and her

character warrant an executed sentence of less than the advisory, or else suspension of part of

her sentence to probation, which would include a community corrections program.




                                               18
       With regard to the nature of the offense, Kleaving argues that “there was no actual,

physical harm done to anyone in this case. All involved, other than Kleaving and husband,

are free to go about their daily lives, virtually unaffected and unhindered.” Appellant’s Br. at

26. We disagree. Believing that McPherson abused her granddaughter, Kleaving devised

and acted upon a plan to eliminate McPherson. Over a period of at least two months,

Kleaving purchased pre-paid cell phones, she asked various persons to kill McPherson for

her, she obtained cash, met with someone she believed was a hit man and provided him with

information about where and how to locate McPherson, and she suggested a remote location

where his body could be disposed of and not found. Kleaving has not established that the

nature of the offense warrants a finding that her advisory sentence is inappropriate.

       Concerning the character of the offender, Kleaving notes that this was her first and

only criminal offense, and that she has raised two children and helped her husband of thirty-

two years run the family business, performing all of the necessary office and accounting

work. Kleaving asserts that her mental problems “caused and allowed” her behavior toward

McPherson to persist, but that she “is not someone who is [a] threat to society.” Appellant’s

Br. at 27. As to the latter proposition, we must disagree. Kleaving showed no remorse for

the crime and, although family and friends encouraged her to allow the paternity court to

handle the allegations of abuse and determine appropriate visitation, she did not follow that

advice, and rather, she was prepared to pay to have McPherson murdered. This, we find,

constitutes a threat to society.




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      Under the facts before us, we find that Kleaving’s thirty-year advisory sentence is not

inappropriate. Reid, 876 N.E.2d at 1117 (where supreme court reduced fifty-year sentence

for conspiracy to commit murder to advisory sentence of thirty years, where victims pleaded

for leniency, no one was injured, and defendant had history of mental health problems).

      Affirmed.

VAIDIK, J., and PYLE, J., concur.




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