MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 21 2019, 10:45 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana
                                                        Tyler G. Banks
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Richard Kyle Lock,                                      November 21, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1280
        v.                                              Appeal from the Jefferson Circuit
                                                        Court
State of Indiana,                                       The Honorable Steven M. Fleece,
Appellee-Plaintiff                                      Senior Judge
                                                        Trial Court Cause Nos.
                                                        39C01-1802-F5-191
                                                        39C01-1805-CM-451



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019              Page 1 of 6
                                             Case Summary
[1]   Richard Kyle Lock appeals the three-year aggregate sentence imposed by the

      trial court following his guilty plea to level 6 felony intimidation and class A

      misdemeanor invasion of privacy. He contends that his sentence is

      inappropriate in light of the nature of the offenses and his character. Finding

      that Lock has not met his burden to show that his sentence is inappropriate, we

      affirm.


                                 Facts and Procedural History
[2]   In October 2017, Lock’s ex-girlfriend, S.J., went to Lock’s home to retrieve

      some of her belongings. An argument ensued between the former couple,

      during which Lock picked S.J. up and dragged her out of his kitchen. As he

      was dragging her, a painting fell from the wall. Lock accused S.J. of damaging

      his property, and he threw her to the floor. S.J. stood up, and Lock punched

      her in the face, causing her to fall back to the floor. Everything went “black”

      for S.J., and her ears started “ringing.” Appellant’s App. Vol. 2 at 16. Lock

      threatened S.J. that she may end up “like the guy across the street,” referring to

      a shooting victim. Id. S.J. was able to escape and went to the police

      department to report the incident. The officer who interviewed S.J. noticed

      bruising, redness, and swelling to her face, red marks on her neck, and a “large

      laceration” behind her left ear. Id. The State charged Lock with level 5 felony

      kidnapping, level 6 felony intimidation, and level 6 felony battery under cause

      number 39C01-1802-F5-191 (“cause F5-191”)



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019   Page 2 of 6
[3]   Then, on April 17, 2018, Lock sent two emails to S.J. The first email said in

      pertinent part, “God I hate you I hope you get your ass whooped and get

      pearlized[sic] in a car accident.” Id. at 106. The second email said in pertinent

      part, “I hope you end up dead and get your ass whooped too.” Id. At the time

      Lock sent these emails, there was a standing no-contact order prohibiting Lock

      from communicating with S.J. Accordingly, on May 1, 2018, the State charged

      Lock with class A misdemeanor invasion of privacy under cause number

      39C01-1805-CM-451 (“cause CM-451”).


[4]   Lock entered into a plea agreement in which he agreed to plead guilty to level 6

      felony intimidation from cause F5-191 and class A misdemeanor invasion of

      privacy from cause CM-451, in exchange for dismissal of the other two charges

      in cause F5-191, as well as dismissal of additional charges under two other

      cause numbers. Sentencing was left to the trial court’s discretion. Following a

      hearing, the trial court imposed a two-year executed sentence for intimidation

      and a one-year executed sentence for invasion of privacy, to be served

      consecutively. This appeal ensued.


                                     Discussion and Decision
[5]   Lock requests that we reduce the three-year aggregate sentence imposed by the

      trial court pursuant to Indiana Appellate Rule 7(B), which provides that we

      may revise a sentence authorized by statute if, after due consideration of the

      trial court's decision, we find that the sentence “is inappropriate in light of the

      nature of the offense and the character of the offender.” The defendant bears

      the burden to persuade this Court that his or her sentence is inappropriate.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019   Page 3 of 6
      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

      sentencing scheme allows trial courts to tailor an appropriate sentence to the

      circumstances presented, and the trial court’s judgment “should receive

      considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

      The principal role of appellate review is to attempt to “leaven the outliers.” Id.

      at 1225. Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of the culpability of the defendant, the severity of the crime,

      the damage done to others, and myriad other facts that come to light in a given

      case.” Id. at 1224. “The question under Appellate Rule 7(B) is not whether

      another sentence is more appropriate; rather, the question is whether the

      sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.

      Ct. App. 2007).


[6]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

      for a level 6 felony is between six months and two and one-half years, with an

      advisory sentence of one year. Ind. Code § 35-50-2-7. There is no advisory

      sentence for a class A misdemeanor but simply a maximum sentence of one

      year. Ind. Code § 35-50-3-2. The trial court here imposed a two-year sentence

      for intimidation, and a consecutive one-year sentence for invasion of privacy,

      resulting in an aggregate sentence below the statutory maximum.


[7]   Lock urges that the nature of his offenses warrants a lesser aggregate sentence.

      The record shows that Lock battered and then threatened to kill S.J. on multiple
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019   Page 4 of 6
      occasions. Nevertheless, he blames S.J. and argues that S.J. “undisputedly

      goaded” him into his criminal actions. Appellant’s Br. at 12. Lock downplays

      the seriousness of his repeated violent and threatening behavior, and his attempt

      to shift blame to his victim is not well taken. Lock has failed to persuade us

      that the nature of these offenses warrants a sentence reduction.


[8]   Lock fares no better when we consider his character. The character of the

      offender is found in what we learn of the offender’s life and conduct. Croy v.

      State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Lock’s criminal history began

      in 2006 when he was convicted of class A misdemeanor operating a vehicle

      while intoxicated. He was then twice convicted of class D misdemeanor

      operating a vehicle while intoxicated in 2011. In 2016, he was convicted of

      operating a vehicle as a habitual traffic violator. The record indicates that he

      has been previously placed both in community corrections and on probation,

      but then violated the terms of those programs. Finally, his current plea

      agreement resulted in the dismissal of several felony charges stemming from his

      violent behavior against S.J. During sentencing, the trial court found that Lock

      had refused to accept any responsibility for his current crimes and exhibited no

      remorse. None of this reflects favorably on his character.


[9]   Lock attempts to minimize his past and present behavior claiming that he has

      unfortunately “fallen prey to substance abuse.” Appellant’s Br. at 13.

      However, it is well settled that a history of substance abuse is not necessarily a

      factor that weighs in favor of a lesser sentence, especially when a defendant has

      not taken appropriate steps to treat the problem. See Marley v. State, 17 N.E.3d

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019   Page 5 of 6
       335, 341 (Ind. Ct. App. 2014), trans. denied. Under the circumstances, Lock has

       not shown that the sentence imposed by the trial court is inappropriate in light

       of the nature of his offenses or his character.


[10]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019   Page 6 of 6
