MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 11 2019, 10:20 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Curtis T. Hill, Jr. Valparaiso, Indiana Attorney General of Indiana
Michael Vo Sherman Certified Legal Intern
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Billy E. McKinney, III, October 11, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-620 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff Alevizos, Judge Trial Court Cause No. 46C01-1810-F5-1195
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 1 of 7 Case Summary [1] After pleading guilty to one count of failure to register as a sex offender with a
prior conviction, a Level 5 felony, the trial court sentenced Billy McKinney to
four years in the Department of Correction (DOC). On appeal, McKinney
argues that his sentence is inappropriate in light of the nature of the offense and
his character.
[2] We affirm.
Facts & Procedural History [3] McKinney was convicted of Class C felony child molesting on March 25, 1996,
and was classified as a sex offender with a lifetime registration requirement. On
October 28, 2018, Officer Jacob Koch of the LaPorte County Sheriff’s
Department was notified that McKinney was listed as non-compliant on the
LaPorte County Sex and Violent Offender Registry (the Registry) due to his
failure to register his change of address, employment status, and Facebook
account with the Registry.
[4] According to the probable cause affidavit 1 prepared by Officer Koch, McKinney
had been living with his brother and sister-in-law at a residence on Porter Street
in LaPorte, but they “kicked [him] out of the house” on September 18, 2018,
after he failed to pay his part of the rent. McKinney also worked at Kingsbury
1 The probable cause affidavit was attached to the presentence investigation report that was admitted into evidence without objection.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 2 of 7 Elevator most recently from June 27, 2018 until July 25, 2018, when he left his
employment claiming he was going to work for another company. In addition,
following up on an anonymous tip, it was discovered that McKinney had a
social media account through Facebook. Officer Koch confirmed that
McKinney was not living at the house listed on the Registry and was
unemployed.
[5] On October 30, 2018, the State filed an information charging McKinney with
three different Level 5 felonies: Count I, failure to register a change in his
employment, Count II, failure to register his change in primary residence within
seventy-two hours, and Count III, failure to register his social media account
(Facebook). All three charges alleged that McKinney has a prior, unrelated
conviction for failure to register. The trial court issued a warrant for
McKinney’s arrest.
[6] Around 12:00 p.m. on November 15, 2018, Detective Nick Krause of the
Fugitive Apprehension Street Team, observed McKinney, who he knew had an
outstanding arrest warrant, driving a car on Franklin Street. Detective Krause
was in an unmarked police car, so he requested assistance from a marked patrol
unit. A traffic stop was initiated in the rear parking lot of a McDonald’s on
Franklin Street. McKinney was arrested without incident.
[7] On January 18, 2019, McKinney, pursuant to a plea agreement, pled guilty to
Count II, and the State agreed to dismiss the remaining charges. The trial court
held a sentencing hearing on February 15, 2019. The court found McKinney’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 3 of 7 criminal history, which includes five felony convictions for failing to register, a
felony conviction for attempted burglary (Mississippi), and several
misdemeanor convictions, to be an aggravating factor. The court also noted
that McKinney had numerous violations of probation and had his placement
revoked several times. With regard to mitigating factors, the court identified
McKinney’s guilty plea. Finding that the aggravators outweighed the
mitigators, the trial court sentenced McKinney to four years in the DOC.
McKinney now appeals. Additional facts will be provided as necessary.
Discussion & Decision [8] McKinney argues that his four-year sentence is inappropriate. Pursuant to Ind.
Appellate Rule 7(B), we “may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” Our Supreme Court has explained that our principal role should be
to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result in
each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “‘[W]e must
and should exercise deference to a trial court’s sentencing decision, both
because Rule 7(B) requires us to give ‘due consideration’ to that decision and
because we understand and recognize the unique perspective a trial court brings
to its sentencing decisions.’” Rogers v. State, 878 N.E.2d 269, 275 (Ind. Ct. App.
2007) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans.
denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 4 of 7 [9] The determination of whether we regard a sentence as inappropriate “turns 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). “The question under
App. R. 7(B) is ‘not whether another sentence is more appropriate’ but rather
‘whether the sentence imposed is inappropriate.’” Miller v. State, 105 N.E.3d
194, 196 (Ind. Ct. App. 2018) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.
Ct. App. 2008)). McKinney bears the burden of persuading us that his sentence
is inappropriate. See id.
[10] In reviewing the appropriateness of a sentence, we first look to the statutory
range for the instant offense. The sentencing range for a Level 5 felony is a
fixed term of between one and six years, with the advisory sentence being three
years. Ind. Code § 35-50-2-6. The trial court sentenced McKinney to one year
above the advisory sentence.
[11] With regard to the nature of the offense, McKinney asserts that “[w]hile
serious, nothing in the record indicates that the failure to register in this case is
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 11 2019, 10:20 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Curtis T. Hill, Jr. Valparaiso, Indiana Attorney General of Indiana
Michael Vo Sherman Certified Legal Intern
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Billy E. McKinney, III, October 11, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-620 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff Alevizos, Judge Trial Court Cause No. 46C01-1810-F5-1195
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 1 of 7 Case Summary [1] After pleading guilty to one count of failure to register as a sex offender with a
prior conviction, a Level 5 felony, the trial court sentenced Billy McKinney to
four years in the Department of Correction (DOC). On appeal, McKinney
argues that his sentence is inappropriate in light of the nature of the offense and
his character.
[2] We affirm.
Facts & Procedural History [3] McKinney was convicted of Class C felony child molesting on March 25, 1996,
and was classified as a sex offender with a lifetime registration requirement. On
October 28, 2018, Officer Jacob Koch of the LaPorte County Sheriff’s
Department was notified that McKinney was listed as non-compliant on the
LaPorte County Sex and Violent Offender Registry (the Registry) due to his
failure to register his change of address, employment status, and Facebook
account with the Registry.
[4] According to the probable cause affidavit 1 prepared by Officer Koch, McKinney
had been living with his brother and sister-in-law at a residence on Porter Street
in LaPorte, but they “kicked [him] out of the house” on September 18, 2018,
after he failed to pay his part of the rent. McKinney also worked at Kingsbury
1 The probable cause affidavit was attached to the presentence investigation report that was admitted into evidence without objection.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 2 of 7 Elevator most recently from June 27, 2018 until July 25, 2018, when he left his
employment claiming he was going to work for another company. In addition,
following up on an anonymous tip, it was discovered that McKinney had a
social media account through Facebook. Officer Koch confirmed that
McKinney was not living at the house listed on the Registry and was
unemployed.
[5] On October 30, 2018, the State filed an information charging McKinney with
three different Level 5 felonies: Count I, failure to register a change in his
employment, Count II, failure to register his change in primary residence within
seventy-two hours, and Count III, failure to register his social media account
(Facebook). All three charges alleged that McKinney has a prior, unrelated
conviction for failure to register. The trial court issued a warrant for
McKinney’s arrest.
[6] Around 12:00 p.m. on November 15, 2018, Detective Nick Krause of the
Fugitive Apprehension Street Team, observed McKinney, who he knew had an
outstanding arrest warrant, driving a car on Franklin Street. Detective Krause
was in an unmarked police car, so he requested assistance from a marked patrol
unit. A traffic stop was initiated in the rear parking lot of a McDonald’s on
Franklin Street. McKinney was arrested without incident.
[7] On January 18, 2019, McKinney, pursuant to a plea agreement, pled guilty to
Count II, and the State agreed to dismiss the remaining charges. The trial court
held a sentencing hearing on February 15, 2019. The court found McKinney’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 3 of 7 criminal history, which includes five felony convictions for failing to register, a
felony conviction for attempted burglary (Mississippi), and several
misdemeanor convictions, to be an aggravating factor. The court also noted
that McKinney had numerous violations of probation and had his placement
revoked several times. With regard to mitigating factors, the court identified
McKinney’s guilty plea. Finding that the aggravators outweighed the
mitigators, the trial court sentenced McKinney to four years in the DOC.
McKinney now appeals. Additional facts will be provided as necessary.
Discussion & Decision [8] McKinney argues that his four-year sentence is inappropriate. Pursuant to Ind.
Appellate Rule 7(B), we “may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character of the
offender.” Our Supreme Court has explained that our principal role should be
to attempt to leaven the outliers, “not to achieve a perceived ‘correct’ result in
each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “‘[W]e must
and should exercise deference to a trial court’s sentencing decision, both
because Rule 7(B) requires us to give ‘due consideration’ to that decision and
because we understand and recognize the unique perspective a trial court brings
to its sentencing decisions.’” Rogers v. State, 878 N.E.2d 269, 275 (Ind. Ct. App.
2007) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)), trans.
denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 4 of 7 [9] The determination of whether we regard a sentence as inappropriate “turns 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). “The question under
App. R. 7(B) is ‘not whether another sentence is more appropriate’ but rather
‘whether the sentence imposed is inappropriate.’” Miller v. State, 105 N.E.3d
194, 196 (Ind. Ct. App. 2018) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.
Ct. App. 2008)). McKinney bears the burden of persuading us that his sentence
is inappropriate. See id.
[10] In reviewing the appropriateness of a sentence, we first look to the statutory
range for the instant offense. The sentencing range for a Level 5 felony is a
fixed term of between one and six years, with the advisory sentence being three
years. Ind. Code § 35-50-2-6. The trial court sentenced McKinney to one year
above the advisory sentence.
[11] With regard to the nature of the offense, McKinney asserts that “[w]hile
serious, nothing in the record indicates that the failure to register in this case is
worse than similar failure to register offenses” and that he “ha[d] simply fallen
on hard times and made a mistake by failing to change his register.” Appellant’s
Brief at 10. We note, however, that a sex offender is required to notify local law
enforcement of a change of principal residence address within seventy-two
hours. Ind. Code § 11-8-8-8(c). Here, McKinney admitted that he was not
residing at his registered residence for the twenty-eight-day period identified in
the charging information. This is well beyond the required seventy-two-hour
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 5 of 7 reporting period and indicative of something greater than a mere mistake.
There is no indication in the record that McKinney ever intended to change his
registered address. See Rogers v. State, 958 N.E.2d 4, 10 (Ind. Ct. App. 2011)
(upholding imposition of maximum three-year sentence for Class D felony
failing to register in light of nature of the offense where defendant “failed to
register for 26 days” and it was “impossible to predict how long [defendant]
would have failed to register” if the State had not filed charges). The nature of
the offense does not warrant a lesser sentence.
[12] With regard to the character of the offender, McKinney argues that he accepted
responsibility for his actions, that he was getting married so he had a reason to
“do what [he has] to do now,” that he was “getting ready to reregister” but “just
didn’t do it,” and that he promised “with all [his] heart” to obey the law and
abide by the conditions of probation. Transcript Vol. II at 15-16. McKinney’s
criminal history, however, is more indicative of his character than his plea to
the court for leniency. Indeed, this offense is McKinney’s sixth felony
conviction for failure to register by failing to report to law enforcement changes
to his Registry information. McKinney also has a felony conviction for
attempted burglary and several misdemeanor convictions. Further reflecting his
poor character is McKinney’s extensive history of violating the terms of
probation and various placements. For example, in 2003, McKinney received
the benefit of five years of a ten-year sentence being suspended to post-release
supervision. The post-release supervision was revoked after a short time. In
2015, McKinney was convicted of Level 5 felony failure to register and received
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 6 of 7 the benefit of serving the balance of his four-year sentence in Community
Corrections. Three months later, his Community Corrections placement was
revoked after he violated the conditions of work release. Despite being afforded
leniency, McKinney has failed to alter his behavior and remains undeterred
from committing new crimes. McKinney’s character does not warrant a lesser
sentence.
[13] In light of the nature of the offense and the character of the offender, we
conclude that McKinney’s four-year sentence is not inappropriate.
[14] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-620 | October 11, 2019 Page 7 of 7