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 the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                            GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               RICHARD C. WEBSTER
                                               Deputy Attorney General
                                               Indianapolis, Indiana
                                                                          FILED
                                                                       Mar 14 2012, 9:27 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




KARL A. KALER,                                 )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )      No. 57A04-1108-CR-432
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE NOBLE CIRCUIT COURT
                         The Honorable G. David Laur, Judge
                           Cause No. 57C01-1003-FC-020


                                     March 14, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Karl A. Kaler (Kaler), appeals his sentence for theft as a

Class D felony, Ind. Code § 35-43-4-2, and his adjudication as an habitual offender, I.C.

§ 35-50-2-8.

       We affirm.

                                           ISSUE

       Kaler raises one issue on appeal, which we restate as follows: Whether the trial

court‟s sentence was appropriate in light of the nature of his offense and his character.

                        FACTS AND PROCEDURAL HISTORY

       On October 8, 2009, Kaler entered the Rural King supply store in Kendallville,

Indiana, along with Nancy Metzger (Metzger). When Kaler exited the store, the store‟s

alarm sounded and a store employee told Kaler that he needed to come back inside. At

that point, Kaler began running towards Metzger‟s minivan. A fellow customer, Duane

Davies (Davies), who happened to be a retired police officer, tried to stop Kaler by

grabbing his jacket. Kaler swung his arm back in an attempt to break Davies‟ grip and

slipped out of his jacket, causing his glasses and cell phone to fall onto the parking lot.

       As Kaler reached Metzger‟s minivan, Davies attempted again to detain him by

grabbing him around the shoulders and head. Kaler struggled with Davies, and another

person attempted to detain Kaler from the passenger side of the vehicle. However, Kaler

produced a set of car keys and inserted them in the vehicle‟s ignition. Kaler accelerated

rapidly and dragged Davies three or four feet. Eventually, Davies was able to shut off the
                                              2
vehicle, and Kaler and Davies continued to struggle. Kaler managed to restart the van

and dragged Davies fifteen to twenty feet. Fearing for his safety, Davies attempted to

back out of the vehicle, but Davies then lost his balance and fell onto the parking lot. A

store employee followed Kaler and found store merchandise—a drill, drill batteries, and a

brad nailer—on the front lawn of a house along the route that Kaler took.

       Shortly after Kaler fled, a Kendallville police officer discovered Metzger and the

van at a restaurant in Kendallville, Indiana. Metzger initially denied any involvement in

the crime but subsequently admitted to her participation and identified Kaler as the

perpetrator. Police officers also discovered two syringes and a spoon with a heavy white

residue on it, later identified as oxycodone, in the van.

       On March 23, 2010, the State filed an Information charging Kaler with Count I,

robbery, a Class C felony, I.C. § 35-42-5-1; Count II, theft, a Class D felony, I.C. § 35-

43-4-2; and Count III, possession of a schedule II controlled substance, a Class D felony,

I.C. § 35-48-4-6. On May 19, 2011, the State filed an additional Information charging

Kaler with being a habitual offender, I.C. § 35-50-2-8. On June 16, 2011, Kaler pled

guilty to Count II and to being a habitual offender pursuant to a plea agreement with the

State. Under the terms of the agreement, the State agreed to dismiss Kaler‟s remaining

charges and to leave sentencing on Count II to the trial court‟s discretion. With regards

to Kaler‟s habitual offender charge, the State agreed to an enhanced sentence of a

minimum of one and one-half years but no more than four and one-half years.



                                              3
       On July 14, 2011, the trial court held a sentencing hearing and sentenced Kaler to

two years for theft, enhanced by four years for being a habitual offender. As aggravating

circumstances, the trial court noted Kaler‟s criminal history and the fact that Kaler was

on probation when he committed the instant crime. As mitigating circumstances, the trial

court recognized Kaler‟s guilty plea and that he had begun to change his life while

incarcerated.

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

                             DISCUSSION AND DECISION

       Kaler argues that the trial court‟s sentence was inappropriate in light of the nature

of his offense and his character. Under Indiana Appellate Rule 7(B), this 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. Childress v. State, 848 N.E.2d 1073, 1079-80

(Ind. 2006). Although this court is not required to use “great restraint,” we nevertheless

exercise deference to a trial court‟s sentencing decision, both because Appellate Rule

7(B) requires that we give “due consideration” to that decision and because we recognize

the unique perspective a trial court has when making decisions. Stewart v. State, 866

N.E.2d 858, 865-66 (Ind. Ct. App. 2007). The “principal role of appellate review should

be to attempt to leaven the outliers, and identify some guiding principles for trial courts

and those charged with improvement of the sentencing statutes, but not to achieve a

perceived „correct‟ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

                                             4
2008). In addition, the defendant bears the burden of persuading this court that his

sentence is inappropriate. Childress, 848 N.E.2d at 1080.

       First, we recognize that theft as a Class D felony carries a sentence ranging from

six months to three years, with an advisory sentence of one and one-half years. As the

trial court sentenced Kaler to two years for theft, his sentence exceeded the advisory

sentence by six months. The maximum enhancement for a habitual offender finding

under these circumstances was four and one-half years. See I.C. § 35-50-2-8(h). Because

the trial court enhanced Kaler‟s sentence by four years for being an habitual offender, his

aggregate sentence was one and one-half years short of the maximum statutory penalty.

       In regards to the nature of Kaler‟s offense, he argues that his sentence was harsh

in light of the fact that the shop‟s loss was not great, given the small number of items

stolen and the nature of those items, the fact that Kaler did not injure anyone, and the fact

that there is no record that Kaler threatened to use force against anyone. We recognize

that although Kaler‟s aggregate sentence was above the aggregate advisory sentence for

the two charges, Kaler was spared potential additional sentences for robbery as a Class C

felony and possession of a schedule II controlled substance as a Class D felony because

he pled guilty pursuant to a plea agreement. Furthermore, although Kaler‟s actions did

not cause physical harm, they very well could have. He admittedly engaged in a physical

struggle with Davies while attempting to flee the parking lot. Eric Stilt, a witness at the

scene, stated that he saw Kaler “[drag]” Davies “3 or 4 feet” when Kaler attempted to

drive away in the van. (Appellant‟s App. p. 87). Similarly, Rocco R. Rigsby (Rigsby),

                                             5
another witness at the scene, saw Kaler “drag” Davies a few feet before Davies stopped

Kaler‟s vehicle. (Appellant‟s App. p. 88). Rigsby also stated that Kaler then restarted

the vehicle and dragged Davies an additional “15 to 20 feet” before Davies let go.

(Appellant‟s App. p. 88).      From these facts, Davies very well could have suffered

physical harm from Kaler‟s offense, even though he luckily did not.

       In regards to his character, Kaler argues that he had turned his life around in prison

and earned 51.2 college credits with a 3.74 grade point average from Indiana State

University. Kaler also notes that he took responsibility for his offense and therefore

saved the State and trial court the time and expense of a trial. Although acknowledging

Kaler‟s achievements and his guilty plea, we again note that Kaler received a significant

benefit—the dismissal of two felony charges—by pleading guilty. In addition, we find

that the trial court‟s sentence was appropriate in light of Kaler‟s criminal history. During

his 27 year criminal career, Kaler was convicted of 21 felonies, most all of which were

for theft, receiving stolen property, criminal conversion, or other property crimes. He

also violated his probation when he committed the instant offense. Based on this history,

we cannot conclude that the trial court‟s sentence was inappropriate in light of Kaler‟s

character.

                                       CONCLUSION

       Based on the foregoing, we conclude that the trial court properly sentenced Kaler

in light of the nature of his offense and his character.

       Affirmed.

                                               6
FRIEDLANDER, J. and MATHIAS, J. concur




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