MEMORANDUM DECISION                                                            FILED
                                                                           Sep 21 2017, 9:47 am

Pursuant to Ind. Appellate Rule 65(D),                                         CLERK
                                                                           Indiana Supreme Court
this Memorandum Decision shall not be                                         Court of Appeals
                                                                                and Tax Court
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
Sean C. Mullins                                          Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kelcey Dirk Sample,                                      September 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1703-CR-706
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff                                       Murray, Judge
                                                         Trial Court Cause No.
                                                         45G02-1502-F3-11



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017           Page 1 of 9
[1]   Kelcey Dirk Sample appeals his sentence of three years for Level 5 felony

      battery resulting in serious bodily injury. 1 He argues the trial court abused its

      discretion when it sentenced him and that his sentence is inappropriate based

      on the nature of the offense and his character. We affirm.



                                Facts and Procedural History
[2]   On December 18, 2014, Sample went to Tiana Cody’s home. Sample and

      Cody had been in a relationship and have a five-year-old daughter together.

      While in Cody’s home, Sample pushed Cody into a mirror. The mirror broke

      and cut Cody’s hand and wrist, requiring twenty stitches. Cody also had

      bruising to her face, neck, and scalp. On February 23, 2015, the State charged

      Sample with two counts of Level 3 felony criminal confinement, 2 and one count

      each of Level 5 felony criminal confinement, 3 Level 5 felony battery resulting in

      serious bodily injury, Level 6 felony criminal confinement, 4 Level 6 felony

      strangulation, 5 Level 6 felony domestic battery, 6 Level 6 felony battery with




      1
          Ind. Code § 35-42-2-1(f) (2014).
      2
          Ind. Code § 35-42-3-3(b)(2) (2014).
      3
          Ind. Code § 35-42-3-3(b)(1) (2014).
      4
          Ind. Code § 35-42-3-3(a) (2014).
      5
          Ind. Code § 35-42-2-9(b) (2014).
      6
          Ind. Code § 35-42-2-1.3(b) (2014).


      Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 2 of 9
      moderate bodily injury, 7 and Class A misdemeanor battery resulting in bodily

      injury. 8


[3]   In August 2016, the State charged Sample with two counts of Level 5 felony

      criminal confinement and one count each of Level 6 felony criminal

      confinement, Level 6 felony battery resulting in moderate bodily injury, and

      Class A misdemeanor battery for an incident involving Lori Gonzalez. Sample

      and Gonzalez had been in a relationship, and it was alleged he attacked her,

      resulting in a black eye. Gonzalez indicated she also had to attend physical

      therapy because of her injuries.


[4]   After multiple continuances and changes in counsel, Sample was scheduled to

      go to trial for the nine charges involving Cody on January 23, 2017. The same

      day, Sample and the State reached a plea agreement under which Sample

      would plead guilty to one count of Level 5 felony battery resulting in serious

      bodily injury and the State would dismiss the other eight charges in that case, as

      well as dismiss the five counts in the case involving Gonzalez. The plea

      agreement provided for a sentence of no more than three years, to be

      determined after the parties argued their respective positions before the trial

      court.




      7
          Ind. Code § 35-42-2-1(d) (2014).
      8
          Ind. Code § 35-42-2-1(c) (2014).


      Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 3 of 9
[5]   On March 1, 2017, the trial court held a sentencing hearing. After receiving

      argument from counsel and testimony from Cody, Gonzalez, and Sample, the

      trial court sentenced Sample to three years incarcerated, noting: “I’m

      constrained by the terms of this plea agreement. It calls for a cap of three years.

      So the Court cannot impose a sentence beyond that. But had the parties put a

      higher number in that category, then I would have had leeway to impose a

      longer sentence.” (Sent. Tr. at 32-3.)



                                 Discussion and Decision
                                         Abuse of Discretion
[6]   Sentencing decisions rest within the sound discretion of the trial court and we

      review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

      (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (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 drawn therefrom. Id. We review for an abuse of discretion the

      court’s finding of aggravators and mitigators to justify a sentence, but we

      cannot review the relative weight assigned to those factors. Id. at 490-491.

      When reviewing the aggravating and mitigating circumstances identified by the

      trial court in its sentencing statement, we will remand only if “the record does

      not support the reasons, or the sentencing statement omits reasons that are

      clearly supported by the record, and advanced for consideration, or the reasons

      given are improper as a matter of law.” Id.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 4 of 9
[7]   Sample’s plea agreement capped his sentence at three years, which is the

      advisory sentence for a Level 5 felony. See Ind. Code § 35-50-2-6(b) (a person

      who commits a Level 5 felony “shall be imprisoned for a fixed term of between

      one (1) and six (6) years, with the advisory sentence being three (3) years”).

      Sample argues the trial court abused its discretion when it considered as an

      aggravator a felony conviction in Sample’s presentence report which, upon

      Sample’s completion of probation in that case, was reduced to a Class A

      misdemeanor conviction. Sample does not challenge any of the trial court’s

      other aggravators.


[8]   In sentencing Sample, the trial court found three aggravators:

              1.     The has [sic] defendant has [a] history of juvenile
              adjudications, misdemeanor and felony convictions. Defendant
              has violated probation in the past. Defendant has a history of
              arrests involving domestic battery.


              2.     The Court finds the nature and circumstances of the crime
              to be a significant aggravating factor in that the victim was
              attacked in her own home without provocation.


              3.     Defendant is unapologetic and claims he is being found
              guilty of “breaking women’s hearts,” and not battery.


      (App. Vol. II at 54.) “A single aggravating circumstance may be sufficient to

      enhance a sentence.” Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). The

      State presented evidence Sample had an extensive criminal history including

      multiple misdemeanor convictions, had violated probation, and had a history of


      Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 5 of 9
       arrests involving domestic violence dating back many years. In his plea

       agreement, Sample stipulated he entered Cody’s house, he intentionally pushed

       her causing injury, and she did not consent to Sample’s contact. Further,

       Sample stated during his sentencing hearing, “Legally, I’ve been charged with

       battery, but morally and realistically I’ve been found guilty for playing with

       women’s hearts. . . . It’s a matter of broken hearts as to why they want me

       convicted today.” (Sent. Tr. at 24-5.)


[9]    Even without the contested consideration of Sample’s felony-turned-

       misdemeanor conviction, there existed a plethora of aggravators to justify

       Sample’s three-year sentence. See Edrington v. State, 909 N.E.2d 1093, 1101

       (Ind. Ct. App. 2009) (proper to affirm sentence even if improper aggravator is

       considered, if we have “confidence that the trial court would have imposed the

       same sentence” regardless), trans. denied.


                                       Inappropriate Sentence
[10]   Sample argues his seven-year sentence is inappropriate under Indiana Appellate

       Rule 7(B). Under this rule, we may revise a sentence if, after due consideration

       of the trial court’s decision, we find the sentence inappropriate in light of the

       nature of the offense and the character of the offender. Williams v. State, 891

       N.E.2d 621, 633 (Ind. Ct. App. 2008). Our review is deferential to the trial

       court’s decision, and our goal is to determine whether the defendant’s sentence

       is inappropriate, not whether some other sentence would be more appropriate.

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant


       Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 6 of 9
       bears the burden of demonstrating his sentence is inappropriate. Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a sentence is inappropriate

       depends 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[11]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at

       494. A person who commits a Level 5 felony “shall be imprisoned for a fixed

       term of between one (1) and six (6) years, with the advisory sentence being

       three (3) years.” Ind. Code § 35-50-2-6(b). Sample’s plea agreement capped his

       sentence at three years. While Sample urges us to consider his sentence as the

       “maximum penalty” for his crime, (Br. of Appellant at 11), we note his

       sentence was the advisory for a Level 5 felony.


[12]   Sample argues Cody’s injuries, which included a cut requiring twenty stitches,

       was “an unexpected result” of pushing her into a mirror. (Id. at 12.) Further,

       Sample argues “while Sample took responsibility for his action and the resulting

       injuries in accepting the plea, it cannot be said that it was Sample’s intent to

       bring about these serious, yet somewhat remote and unforeseeable, injuries.”

       (Id.) Sample’s characterization of the events leading to his conviction are

       laughable at best and highlight his continued failure to take responsibility for his

       actions. As the trial court noted, Sample’s “attitude seems to be more that he is

       the victim, more so than these women. It’s their fault for falling in love with



       Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 7 of 9
       him. That’s what it sounds like. That’s arrogance on a scale that I just seldom

       hear.” (Sent. Tr. at 33.)


[13]   Sample stipulated, as part of his plea agreement, that he “intentionally pushed

       Tiana Cody into a mirror causing the mirror to break and Tiana Cody to cut her

       hand.” (App. Vol. II at 50.) He also stipulated Cody “cut her hand and wrist

       and needed over 20 stitches and had bruising on her face, neck, and scalp.”

       (Id.) He did not claim his touching was accidental. We conclude Sample’s

       sentence is not inappropriate based on the nature of his offense. See Perry v.

       State, 78 N.E.3d 1, 13 (Ind. 2017) (two and a half year sentence appropriate

       when offender admitted his participation in the battery, but continued to blame

       the victim).


[14]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. While a record of arrests may not be used as

       evidence of criminal history, it can be “relevant to the trial court’s assessment of

       the defendant’s character in terms of the risk that he will commit another

       crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).


[15]   Sample has a lengthy criminal history with multiple juvenile adjudications,

       misdemeanor convictions, and felony arrests for battery, including one in 2008




       Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 8 of 9
       involving Gonzalez. In addition, while Sample claims to have taken

       responsibility for his actions, he stated during his sentencing hearing:

               First and foremost, I do want to apologize to [sic] my
               contributions to the accident that brings us here today. I am
               pleading guilty today for what I know that I done [sic], and I am
               remorseful. . . . A lot of why I’m here has to do with playing with
               a woman’s heart. Legally, I’ve been charged with battery, but
               morally and realistically, I’ve been found guilty for [sic] playing
               with woman’s hearts.


       (Sent. Tr. at 23-4.) This statement is an illustration of Sample’s refusal to do

       exactly what he touts—express remorse and accept responsibility. Taking

       together Sample’s criminal history and lack of remorse, we cannot say his

       sentence is inappropriate based on his character. See Perry, 78 N.E.3d at 13

       (sentence appropriate when offender had an extensive criminal history and

       expressed veiled remorse for his crimes).



                                               Conclusion
[16]   As the trial court considered several proper aggravators when sentencing

       Sample, it did not abuse its discretion in sentencing him. Further, we conclude

       Sample’s sentence is not inappropriate based on the nature of the offense or his

       character. Accordingly, we affirm his three-year sentence.


[17]   Affirmed.


       Barnes, J., and Bradford, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017   Page 9 of 9
