MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
this Memorandum Decision shall not be                                              Jan 16 2019, 7:54 am

regarded as precedent or cited before any                                              CLERK
court except for the purpose of establishing                                       Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Curtis T. Hill, Jr.
ANTHONY S. CHURCHWARD, P.C.                              Attorney General of Indiana
Fort Wayne, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle S. Skelton,                                         January 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2036
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         02D04-1708-F6-972
                                                         02D05-1802-F6-124



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2036 | January 16, 2019                 Page 1 of 5
                                          Case Summary
[1]   Kyle S. Skelton (“Skelton”) argues that he received inappropriate sentences

      upon two counts of Unlawful Possession of a Syringe, Level 6 felonies, 1 and

      one count of Possession of Paraphernalia, as a Class C misdemeanor,2 because

      no portion was suspended to probation.


[2]   We affirm.



                                Facts and Procedural History
[3]   In August 2017, the State charged Skelton with Unlawful Possession of a

      Syringe, a Level 6 felony, and Possession of Paraphernalia, as a Class C

      misdemeanor. These charges were filed under cause number 02D04-1708-F6-

      000972 (“F6-972”). While Skelton was released on conditions, he was charged

      with a new offense: Unlawful Possession of a Syringe, a Level 6 felony. This

      charge was filed under cause number 02D05-1802-F6-000124 (“F6-124”).


[4]   On February 12, 2018, the trial court held a hearing at which Skelton pleaded

      guilty to all three offenses, and agreed to participate in the Allen County Drug

      Court Program. The trial court took Skelton’s guilty pleas under advisement

      and placed him in the program. Thereafter, the State petitioned to terminate

      Skelton’s participation, alleging that Skelton had violated the terms of the



      1
          Ind. Code § 16-42-19-18.
      2
          I.C. § 35-48-4-8.3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2036 | January 16, 2019   Page 2 of 5
      program by being unsuccessfully discharged from transitional housing on two

      occasions. At a hearing in July 2018, Skelton admitted to the allegations in the

      petition. The trial court then revoked Skelton’s participation. The trial court

      set the matter for a sentencing hearing, which it held on July 31, 2018. With

      respect to the count in the F6-124 cause, the court imposed a sentence of one

      year in the Indiana Department of Correction. As to the counts in the F6-972

      cause, the trial court imposed concurrent sentences of one year on the Level 6

      felony and sixty days on the Class C misdemeanor, to be served in the Indiana

      Department of Correction, consecutive to the sentence in the F6-124 cause.


[5]   Skelton filed a Notice of Appeal in each cause, and we granted Skelton’s

      motion to consolidate the appeals.



                                 Discussion and Decision
[6]   Pursuant to Article 7 of the Indiana Constitution, as implemented through

      Indiana Appellate Rule 7(B), appellate courts have the authority to revise any

      criminal sentence that “is inappropriate in light of the nature of the offense and

      the character of the offender.” In revising sentences, our principal role is to

      “leaven the outliers,” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008), and

      we reserve appellate revision “for exceptional cases.” Livingston v. State, No.

      18S-CR-623, slip op. at 4 (Ind. Dec. 28, 2018). “[T]he place where a sentence is

      to be served is . . . an appropriate focus for our review under 7(B).” Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2036 | January 16, 2019   Page 3 of 5
[7]   Skelton does not appear to challenge the aggregate length of his sentence—two

      years—which was the aggregate sentence length Skelton requested during his

      hearing. Skelton instead “requests that this Court modify his sentence by

      suspending a portion thereof and placing him on probation.” Br. of Appellant

      at 16. We nevertheless note that Skelton received the advisory sentence of one

      year for each Level 6 felony, see I.C. § 35-50-2-7, and he received the advisory

      sentence of sixty days for the Class C misdemeanor, see I.C. § 35-50-3-4.

      Moreover, because Skelton committed the offense under F6-124 while on pre-

      trial release, the trial court was obligated—under Indiana Code Section 35-50-1-

      2(e)—to order consecutive sentences between the causes. It so ordered.


[8]   In discussing his offenses, Skelton acknowledges that his first offenses arose

      after an overdose and that the latter offense arose after officers found him

      unconscious in a vehicle. Skelton minimizes the nature of these offenses,

      arguing that he endangered only himself. As to his character, Skelton directs us

      to his struggles with substance abuse, noting that his adult criminal history

      consists of eleven misdemeanor convictions that all relate to the use of alcohol

      or drugs. In support of his character, Skelton also argues that he accepted

      responsibility and pleaded guilty without a plea agreement. According to

      Skelton, he “received only the benefit of the Drug Court Treatment Program,”

      Br. of Appellant at 16, and should have received a partially suspended sentence.


[9]   Yet, in his prior interactions with the criminal justice system, Skelton had been

      afforded leniency. Indeed, the trial court observed that Skelton had received

      “short jail sentences, longer jail sentences, unsupervised probation, services at

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2036 | January 16, 2019   Page 4 of 5
       Criminal Division Services, services at Allen County Community Corrections,

       and then the Drug Court program,” but that Skelton continued to reoffend. Tr.

       Vol. II at 81. The trial court remarked that Skelton is a “really intelligent man”

       who knows what he must do but “continue[s] to make the wrong choices.” Id.

       The court also observed that, after one unsuccessful discharge from transitional

       housing, there had been a petition to revoke Skelton’s participation. Skelton

       admitted to the allegation, and the court took the petition under advisement.

       Yet, twelve days later, Skelton was again unsuccessfully discharged. The court

       remarked that Skelton’s non-compliance “look[ed] willful on [his] part.” Id.


[10]   Skelton has not persuaded us that he received an inappropriate sentence.


[11]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2036 | January 16, 2019   Page 5 of 5
