Anthony Kutch v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 28 2020, 10:25 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. Navarre, Florida Attorney General of Indiana

Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony Kutch, December 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-763 v. Appeal from the La Porte Superior Court No. 1 State of Indiana, The Honorable Michael S. Appellee-Plaintiff Bergerson, Judge Trial Court Cause No. 46D01-1809-F4-1075

May, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020 Page 1 of 9 [1] Anthony Kutch appeals the six-year sentence imposed following his conviction

of Level 4 felony burglary. 1 He raises two issues on appeal, which we revise

and restate as: (1) whether the trial court abused its discretion in imposing his

sentence; and (2) whether Kutch’s sentence is inappropriate given the nature of

his offense and his character. We affirm.

Facts and Procedural History [2] After Justin and Brynn Keist noticed food missing from their house on several

occasions, they installed surveillance cameras inside their house. On August

25, 2018, the surveillance cameras captured Kutch enter the house through a

window. He then rummaged through a dresser and left the house with items

concealed in his front sweatshirt pockets. The Keists contacted the La Porte

Police Department, and officers arrested Kutch. The State charged Kutch with

Level 4 felony burglary. [3] On January 16, 2020, Kutch and the State entered into a plea agreement

whereby Kutch agreed to plead guilty and the State agreed to argue sentencing

to the court with six years being the maximum sentence the court could impose.

The trial court held a change of plea hearing and set the matter for a sentencing

hearing on February 27, 2020. In a statement Kutch submitted as part of his

Pre-Sentence Investigation report, Kutch stated, “I know what I did was wrong

1 Ind. Code § 35-43-2-1.

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and I don’t deny the fact that I broke the law. Not only did I let myself down as

a man but I also let my friends and family down[.]” (App. Vol. II at 92.) At the

sentencing hearing, Kutch stated that he was addicted to heroin at the time of

the offense, and he attributed his twelve juvenile referrals to “a very rough

childhood.” (Tr. Vol. II at 23.) The State noted that while Kutch’s criminal

history was not “excessive,” it was “somewhat troubling,” and the State

characterized Kutch as a high risk to re-offend. (Id. at 24.) In addition to the

juvenile referrals, Kutch had been convicted of Class B felony aiding, inducing

or causing robbery 2 and had served time in the Indiana Department of

Correction (“DOC”). The State asked the court to impose a six-year executed

sentence. Kutch argued that, while he had a significant juvenile history, he was

in his mid-thirties at the time of sentencing. Kutch also explained that he used

to live with the Keists, and he knew they would not be home when he broke

into their house. [4] The trial court found two mitigating circumstances: (1) “The Defendant pled

guilty and saved the State the time and the expense of having to bring this case

to trial;” and (2) “Defendant is a decent candidate for rehabilitation.” (App.

Vol. II at 115.) The court also found three aggravating circumstances: (1) “12

previous referrals to the Juvenile Justice System;” (2) “One prior adult felony;”

and (3) “The Defendant is a high risk to reoffend.” (Id.) The trial court found

the aggravating circumstances outweighed the mitigating circumstances and

2 Ind. Code § 35-42-5-1 (1984) & Ind. Code § 35-41-2-4.

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imposed a six-year sentence. The trial court also noted Kutch could petition for

a sentence modification after serving “three (3) actual years” and completing a

substance abuse program while incarcerated. (Id. at 116.)

Discussion and Decision I. Abuse of Discretion [5] Kutch argues the trial court abused its discretion at sentencing by omitting

mitigating circumstances supported by the record. Our standard of review is

well-settled:

Sentencing decisions rest within the sound discretion of the trial court, and we review such decisions only for an abuse of discretion. Morrell v. State, 118 N.E.3d 793, 796 (Ind. Ct. App. 2019), clarified on reh’g on other grounds, 121 N.E.3d 577 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007). When a trial court imposes a felony sentence, it is required to issue a sentencing statement “that includes a reasonably detailed recitation of the trial court’s reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484- 85 (Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). If the court finds aggravating or mitigating circumstances, “the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating.” Id. at 490.

A trial court may abuse its discretion in imposing a sentence by failing to enter a sentencing statement, identifying aggravating and mitigating factors the record does not support, omitting Court of Appeals of Indiana | Memorandum Decision 20A-CR-763 | December 28, 2020 Page 4 of 9

reasons clearly supported in the record and advanced for consideration, or stating reasons for sentence that are improper as a matter of law. Id. at 490-91.

Belcher v. State, 138 N.E.3d 318, 327 (Ind. Ct. App. 2019), trans. denied. A trial

court does not have to “accept the defendant’s arguments regarding what

constitutes a mitigating factor or assign proposed mitigating factors the same

weight as the defendant.” Mehringer v. State, 152 N.E.3d 667, 673 (Ind. Ct.

App. 2020), trans. denied. [6] Kutch argues the trial court abused its discretion by not crediting his expression

of remorse as a mitigating circumstance. He did express sorrow and regret in

his Pre-Sentence Investigation statement. However, “our review of a trial

court’s determination of a defendant’s remorse is similar to our review of

credibility judgments: without evidence of some impermissible consideration by

the trial court, we accept its determination.” Hape v. State, 903 N.E.2d 977,

1002-03 (Ind. Ct. App. 2009), trans. denied. When the court questioned Kutch

at the sentencing hearing about why he committed the burglary, Kutch blamed

his childhood and his addiction, and the trial court observed, “I don’t hear any

acceptance at all in your, in your, your response.” (Tr. Vol. II at 23.) The trial

court was free to discredit Kutch’s Pre-Sentence Investigation statement given

his refusal to accept responsibility for his actions at the sentencing hearing. We

hold that the trial court did not abuse its discretion by not finding remorse to be

a mitigating circumstance. See Hape, 903 N.E.2d at 1003 (holding trial court did

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not abuse its discretion when it failed to recognized defendant’s alleged remorse

as a significant mitigating circumstance). [7] Kutch contends the trial court also abused its discretion by not crediting his

heroin addiction as a mitigating circumstance. Kutch’s Pre-Sentence

Investigation report indicates that he began using marijuana in his late teens.

He became addicted to pain pills in his early thirties, and then he transitioned to

heroin. Kutch reported that he completed a substance abuse program in 2015,

and he attended counseling “under the order of Child Protective Services.”

(App. Vol. II at 89.) However, Kutch was using heroin daily at the time of the

instant offense. While Kutch’s substance abuse issues persisted for years prior

to the instant offense, he did not seek out and get the treatment he needed to

overcome his addiction. The trial court did not thoroughly ignore Kutch’s

substance abuse issues. It found his prospect for rehabilitation to be a

mitigating circumstance. The court recommended that Kutch be placed in the

IDOC’s Recovery While Incarcerated program and noted that completion of

the program would reflect positively on him in a future petition for sentence

modification. Therefore, we hold the trial court did not abuse its discretion in

failing to credit Kutch’s addiction as a mitigating circumstance. See Hape, 903

N.E.2d at 1002 (holding trial court did not abuse its discretion in failing to

credit defendant’s substance abuse as a significant mitigating circumstance).

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II. Appropriateness of Sentence [8] Kutch also argues that his sentence is inappropriate due to the nature of his

offense and his character. Our standard of review regarding the appropriateness

of an offender’s sentence is likewise well-settled:

We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, [we find] the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). Our role in reviewing a sentence pursuant to Appellate Rule 7(B) “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. 2008). “The defendant bears the burden of persuading this court that his or her sentence is inappropriate.” Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

Belcher, 138 N.E.3d at 328. [9] We use the advisory sentence as a starting point in determining the

appropriateness of a sentence. Anglemyer, 868 N.E.2d at 494. A Level 4 felony

is punishable by imprisonment for a fixed term between two years and twelve

years, with the advisory sentence being six years. Ind. Code § 35-50-2-5.5. We

assess “whether there is anything more or less egregious about the offense

committed by the defendant that makes it different from the ‘typical’ offense

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accounted for by the legislature when it set the advisory sentence.” Johnson v.

State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). Here, the trial court imposed

the advisory sentence, which was also the maximum sentence available

pursuant to the plea agreement. A defendant appealing the imposition of an

advisory sentence faces a “particularly heavy burden” in persuading us that his

sentence is inappropriate. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct.

App. 2011), trans. denied. [10] Regarding the nature of Kutch’s offense, he does not attempt to distinguish his

offense from a “typical” Level 4 felony burglary. The State notes Kutch

committed multiple crimes on the day of the burglary because he consumed

heroin prior to committing the burglary. However, we do not see how Kutch’s

consumption of heroin beforehand made the burglary itself more abhorrent

than a typical burglary. Consequently, Kutch’s offense was not more or less

egregious than the typical burglary offense. Rich v. State, 890 N.E.2d 44, 54

(Ind. Ct. App. 2008) (holding defendant’s burglary offense was not more or less

egregious than a typical burglary), trans. denied. [11] “When considering the character of the offender, one relevant fact is the

defendant’s criminal history. The significance of criminal history varies based

on the gravity, nature, and number of prior offenses in relation to the current

offense.” Maffett v. State, 113 N.E.3d 278, 286 (Ind. Ct. App. 2018) (internal

citation omitted). Kutch argues his juvenile referrals do not reflect his current

character because they stemmed from his difficult childhood and a substantial

period of time has passed between the juvenile referrals and his current

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conviction. However, as an adult, Kutch served time in DOC for robbery. He

also pled guilty to Class A misdemeanor theft. 3 The Pre-Sentence Investigation

Report noted Kutch had two active bench warrants from California at the time

of sentencing because he failed to comply with the terms of his probation

following misdemeanor convictions for corporal injury on a spouse/cohabitant.

Kutch’s criminal history reflects poorly on his character. While Kutch claims

to want to overcome his addiction, his professed desire does not merit a lesser

sentence. We hold that Kutch’s sentence is not inappropriate given the nature

of his offense and his character. See George v. State, 141 N.E.3d 68, 74 (Ind. Ct.

App. 2020) (holding sentence not inappropriate given defendant’s criminal

history), trans. denied.

Conclusion [12] The trial court did not abuse its discretion at sentence by not crediting Kutch’s

expression of remorse or his addiction to heroin as mitigating circumstances.

We also cannot say that Kutch’s sentence is inappropriate given his criminal

history. Therefore, we affirm the trial court. [13] Affirmed.

Kirsch, J., and Bradford, C.J., concur.

3 Ind. Code § 35-43-4-2 (2018).

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