      MEMORANDUM DECISION
                                                                      Jul 20 2015, 11:13 am
      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
      Christopher L. Clerc                                      Gregory F. Zoeller
      Columbus, Indiana                                         Attorney General of Indiana
                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kerry D. Ketchem                                         July 20, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               03A01-1412-CR-519
              v.                                               Appeal from the Bartholomew
                                                               Circuit Court

      State of Indiana                                         The Honorable Stephen R.
                                                               Heimann, Judge
      Appellee-Plaintiff.
                                                               Trial Court Case No.
                                                               03C01-1206-FD-3075




      Mathias, Judge.

[1]   Kerry Ketchem (“Ketchem”) pleaded guilty to three counts of Class D felony

      theft and was ordered to serve an aggregate sentence of eight years. Ketchem

      appeals and argues that the trial court abused its sentencing discretion by failing

      to consider certain factors as mitigating.

      Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015   Page 1 of 6
[2]   We affirm.


                                     Facts and Procedural History

[3]   Ketchem was employed by Faurecia, an automobile parts manufacturing

      company located in Columbus, Indiana. Between February 2011 and February

      2012, on at least seven occasions, Ketchem participated in the theft of auto

      parts manufactured by Faurecia. He did so by persuading his unsuspecting co-

      workers to help him load the parts onto unauthorized trucks to be taken,

      without payment, to a recycling facility operated by an associate. After the

      thefts were discovered and attributed to Ketchem, Ketchem admitted to a

      private investigator hired by Faurecia and to the police that he had committed

      the thefts. He claimed that he was coerced into participating in the thefts when

      two other parties threatened the life of his step-granddaughter. Ketchem

      profited personally from the thefts, receiving around $10,000 for one of the

      shipments alone.

[4]   On June 18, 2012, the State charged Ketchem with seven counts of Class D

      felony theft. Ketchem pleaded guilty to Counts 1, 4, and 7, and the State agreed

      to dismiss the remaining charges. The plea agreement provided that Ketchem’s

      sentence would be left to the trial court’s discretion but would be capped at an

      aggregate term of eight years.


[5]   At Ketchem’s sentencing hearing, Ketchem’s counsel argued that the trial court

      should find as mitigating that Ketchem was coerced into committing the thefts,

      that Ketchem admitted to the crimes and cooperated with police in their


      Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015   Page 2 of 6
      investigation, that he is the sole financial provider for his wife and step-

      granddaughter, and that he would likely suffer from health problems if he were

      incarcerated. The trial court, however, declared that Ketchem had “zero”

      credibility and noted that he admitted to his crimes only after being caught with

      his “hand . . . in the cookie jar.” Tr. p. 49. The trial court rejected all of

      Ketchem’s proffered mitigating factors and found the following aggravating

      factors: (1) Ketchem’s age and education level;1 (2) his prior seven convictions,

      five of which are felonies and include theft of government property and

      breaking and entering into FBI headquarters, fraud, mail fraud, bank fraud and

      embezzlement, possession of a forged instrument, forgery, and conversion; and

      (3) his previous parole violation. The trial court sentenced Ketchem to three

      years executed on Count 1, two and one-half years executed on Count 4, and

      two and one-half years executed on Count 7, all to run consecutively, for an

      aggregate sentence of eight years. The trial court also ordered Ketchem to pay

      restitution to Faurecia in the amount of $75,000.00 and to Chubb and Son,

      Faurecia’s insurance provider, in the amount of $910,012.00.


[6]   Ketchem now appeals.

                                            Discussion and Decision

[7]   Ketchem argues that the trial court abused its discretion by failing to consider as

      mitigating that he “took responsibility for his actions from the time the

      investigation began[,] admitted his guilt to a private investigator and the State


      1
          At the time of the crimes, Ketchem was in his sixties. He has a degree from the University of Maryland.

      Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015             Page 3 of 6
      Police before the charges were filed[, and] admitted again in court by entering a

      guilty plea.” Appellant’s Br. at 4.

[8]   Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (“Anglemyer I”). So long as

      the sentence is within the statutory range, it is subject to review only for an

      abuse of discretion. Id. 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. at 491.

      A trial court may abuse its sentencing discretion in a number of ways,

      including: (1) failing to enter a sentencing statement at all; (2) entering a

      sentencing statement that includes aggravating and mitigating factors that are

      unsupported by the record; (3) entering a sentencing statement that omits

      reasons that are clearly supported by the record; or (4) entering a sentencing

      statement that includes reasons that are improper as a matter of law. Id. at 490-

      91.

[9]   In its opinion on rehearing in Anglemyer I, our supreme court noted that:


              a defendant who pleads guilty deserves “some” mitigating weight
              be given to the plea in return. But an allegation that the trial
              court failed to identify or find a mitigating factor requires the
              defendant to establish that the mitigating evidence is not only
              supported by the record but also that the mitigating evidence is
              significant. And the significance of a guilty plea as a mitigating
              factor varies from case to case. For example, a guilty plea may
              not be significantly mitigating when it does not demonstrate the
              defendant’s acceptance of responsibility, or when the defendant
              receives a substantial benefit in return for the plea.
      Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015   Page 4 of 6
       Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007) (“Anglemyer II”) (citations

       omitted).

[10]   In this case, the evidence against Ketchem was overwhelming, and he faced a

       maximum sentence of twenty-one years, so the trial court’s conclusion that his

       decision to plead guilty was more likely the result of pragmatism than

       acceptance of responsibility was not an abuse of discretion. Furthermore,

       despite his guilty plea, Ketchem continued to minimize his responsibility for the

       crime at his sentencing hearing, maintaining that he was coerced into

       committing the thefts and pointing blame at his associates. Under these facts

       and circumstances, we conclude the trial court did not abuse its discretion by

       omitting reference to his guilty plea when imposing his sentence.

[11]   As for Ketchem’s expression of remorse, we note that, while an expression of

       remorse may be considered as a mitigating circumstance, the trial court is under

       no obligation to accept a defendant’s alleged remorse as a mitigator. Phelps v.

       State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied. The trial court

       possesses the ability to directly observe a defendant and can best determine

       whether a defendant’s remorse is genuine. Id. Therefore, substantial deference

       must be given to the trial court’s evaluation of a defendant’s remorse. Id. Absent

       evidence of some impermissible consideration by the trial court, we will accept

       its determination as to remorse. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct.

       App. 2005).




       Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015   Page 5 of 6
[12]   Here, Ketchem asks that we accept his declaration of remorse, which was

       clearly rejected by the trial court. In fact, the trial court observed at the

       sentencing hearing that Ketchem had “zero” credibility. Tr. p. 48. Also, as we

       noted earlier, at the sentencing hearing, Ketchem continued to minimize his

       blame for the crime. Ketchem presents no evidence of any impermissible

       aggravator considered by the trial court. Therefore, the trial court was well

       within its discretion to discredit Ketchem’s self-serving claim of remorse.


[13]   For all of these reasons, we conclude that the trial court did not abuse its

       sentencing discretion in failing to consider Ketchem’s guilty plea and claim of

       remorse as mitigating factors.

[14]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015   Page 6 of 6
