Brian P. Kedrowitz v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 4, 2016
• Docket: 36A01-1507-CR-859
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 04 2016, 8:46 am

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 R. Patrick Magrath Gregory F. Zoeller Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian P. Kedrowitz, March 4, 2016 Appellant-Defendant, Court of Appeals Case No. 36A01-1507-CR-859 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Richard W. Appellee-Plaintiff. Poynter, Judge Trial Court Cause No. 36C01-1406-FA-17

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-859 | March 4, 2016 Page 1 of 5 [1] Brian P. Kedrowitz appeals his twelve-year sentence for Class B felony child

molesting. 1 He asserts his sentence is inappropriate in light of his character and

offense. We affirm.

Facts and Procedural History [2] Thirty-five-year-old Kedrowitz lived with his adult brother in a house they

allowed neighborhood kids to use as a hangout. On May 9, 2014, eleven-year-

old B.B. and her eleven-year-old friend played pool at Kedrowitz’s house and

then left. Later that night, the girls returned to the house and crawled into bed

with Kedrowitz. Kedrowitz woke while the girls were sleeping, and he inserted

two of his fingers into B.B.’s vagina.

[3] The State charged Kedrowitz with Class A felony child molesting, 2 Class C

felony child molesting, 3 and two counts of Class D felony child solicitation. 4

Eleven months later Kedrowitz pled guilty to Class B felony child molesting as

a lesser-included offense of the Class A felony charge pursuant to an agreement

that required the State to drop the remaining three charges.

[4] Following preparation of a pre-sentence investigation report, the court held a

sentencing hearing at which Kedrowitz and his mother testified and at which

1 Ind. Code § 35-42-4-3(a) (2007). 2 Ind. Code § 35-42-4-3(a)(1) (2007). 3 Ind. Code § 35-42-4-3(b) (2007). 4 Ind. Code § 35-42-4-6(b)(1) (2007).

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-859 | March 4, 2016 Page 2 of 5 the State read the victim impact statement into evidence. The court found

aggravators in B.B.’s age being under twelve and in Kedrowitz’s criminal

history. The court found a mitigator in Kedrowitz’s admission of guilt, but also

found Kedrowitz showed no remorse. The court imposed a twelve-year

sentence, with two years suspended to probation.

Discussion and Decision [5] Kedrowitz asserts his sentence is inappropriate. We may revise a sentence if it

is inappropriate in light of the nature of the offense and the character of the

offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

Ind. Appellate Rule 7(B)). As we conduct our review, we consider not only the

aggravators and mitigators found by the trial court, but also any other factors

appearing in the record. Wells v. State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014),

trans. denied. The appellant bears the burden of demonstrating his sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[6] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Anglemyer v. State, 868

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The

sentencing range for a Class B felony was “between six (6) and twenty (20)

years, with the advisory sentence being ten (10) years.” Ind. Code § 35-50-2-5

(2005). Kedrowitz received a twelve-year sentence.

[7] Kedrowitz and his brother kept their house open to neighborhood kids,

allowing the kids to play pool and hang out in their home. At sentencing,

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-859 | March 4, 2016 Page 3 of 5 Kedrowitz admitted he knew girls who were “under age” hung out at their

house. (Tr. at 8.) On the night in question, Kedrowitz awoke and found two

eleven-year-old girls sleeping in his bed with him. He placed his fingers in the

vagina of one of those girls as she slept. After the incident, the victim, B.B., no

longer trusts males and does not like being hugged even by her father or

brothers. We cannot find a twelve-year sentence inappropriate based on the

nature of Kedrowitz’s offense.

[8] When considering the character of the offender, one relevant fact is the

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

App. 2007). The significance of a criminal history in assessing a defendant’s

character varies based on the gravity, nature, and number of prior offenses in

relation to the current offense. Id. In 2000, Kedrowitz was convicted of Class

B misdemeanor false informing; and in 2008, Kedrowitz was convicted of Class

A misdemeanor criminal recklessness, Class A misdemeanor domestic battery,

and Class A misdemeanor invasion of privacy. At the sentencing hearing,

Kedrowitz admitted having those prior convictions, but he explicitly placed the

responsibility for his behavior on others, blaming his ex-wife’s boyfriend for

their altercation and the arresting police officer for his violation of a protective

order. He also failed to display remorse for his current crime at his sentencing

hearing. In light of all these facts, we cannot conclude Kedrowitz’s sentence is

inappropriate in light of his character. See, e.g., Johnson v. State, 986 N.E.2d 852,

857 (Ind. Ct. App. 2013) (affirming sentence as not inappropriate based on

criminal history).

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-859 | March 4, 2016 Page 4 of 5 Conclusion [9] Because Kedrowitz has not demonstrated that a twelve-year sentence is

inappropriate in light of his character and offense, we affirm.

[10] Affirmed.

Najam, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 36A01-1507-CR-859 | March 4, 2016 Page 5 of 5