MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 23 2019, 6:25 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 Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brittany Leann Kehlhofer, August 23, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-404 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1804-F5-66
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 1 of 7 Statement of the Case
[1] Brittany Kehlhofer (“Kehlhofer”) appeals the sentence imposed after she pled
guilty to Level 5 felony possession of methamphetamine1 and Level 6 felony
unlawful possession of a syringe.2 Kehlhofer argues that her sentence is
inappropriate in light of the nature of the offense and her character.
Concluding that Kehlhofer’s sentence is not inappropriate, we affirm her
sentence.
[2] We affirm.
Issue
Whether Kehlhofer’s sentence is inappropriate.
Facts
[3] On April 5, 2018, officers located Kehlhofer in a motel room in Lafayette,
Indiana. They were aware that she had an outstanding arrest warrant and took
her into custody. A search of the motel room revealed 9.24 grams of
methamphetamine, several syringes, scales, methamphetamine pipes,
1 IND. CODE § 35-48-4-6.1. 2 IND. CODE § 16-42-19-18.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 2 of 7 marijuana, and approximately $13,800 of fraudulent U.S. currency in a
backpack.
[4] The State charged Kehlhofer with Level 5 felony possession of
methamphetamine, Level 6 felony unlawful possession of a syringe, Class B
misdemeanor possession of marijuana, Class C misdemeanor possession of a
paraphernalia, and Level 6 felony counterfeiting. In December 2018, Kehlhofer
pled guilty to Level 5 felony possession of methamphetamine and Level 6
felony possession of a syringe.3 In exchange, the State dismissed the remaining
charges. Sentencing was left to the discretion of the trial court.
[5] At the sentencing hearing, the trial court found both mitigating and aggravating
factors present. The trial court identified the following mitigating factors:
[Kehlhofer] [pled] guilty and accepted responsibility; [Kehlhofer’s] substance abuse issues (diminished by her failure to take advantage of substance abuse programs previously provided).
(App. 25). The trial court identified the following aggravating factors:
[Kehlhofer’s] criminal history; [Kehlhofer] was on probation at the time of this offense; [Kehlhofer] has previously violated probation; [Kehlhofer’s] conduct while at the Tippecanoe County Jail (including a battery and failure to take advantage of rehabilitative programs available).
3 Pursuant to the plea agreement, Kehlhofer also admitted to violating her probation in cause number 79D02- 1704-F5-49.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 3 of 7 (App. 25). The trial court then found that the aggravating factors outweighed
the mitigating factors. The trial court sentenced Kehlhofer to five (5) years for
the Level 5 felony conviction and two (2) years for the Level 6 felony
conviction. The trial court ordered the sentences to be served concurrently, for
an aggregate sentence of five (5) years. Of those five years, four (4) years were
ordered executed at the Department of Correction, one (1) year on community
corrections, and one (1) year was suspended to probation. Kehlhofer now
appeals.
Decision
[6] Kehlhofer argues that her aggregate sentence of five years is inappropriate in
light of the nature of the offense and her character. This Court may revise a
sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). “The 7(B)
‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s
judgment, not unlike the trial court’s discretionary sentencing determination.”
Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,
though, we conduct that review with substantial deference and give due
consideration to the trial court’s decision—since the principal role of our review
is to attempt to leaven the outliers, and not to achieve a perceived correct
sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citation
omitted). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 4 of 7 inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. The defendant has the
burden of persuading the appellate court that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[7] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007)). Here, Kehlhofer was convicted of a Level 5 felony and a
Level 6 felony. The sentencing range for a Level 5 felony is “for a fixed term of
between one (1) and six (6) years, with the advisory sentence being three (3)
years.” I.C. § 35-50-2-6(b). The sentencing range for a Level 6 felony is “for a
fixed term of between six (6) months and two and one-half (2 ½) years, with the
advisory sentence being one (1) year.” I.C. § 35-50-2-7(b). The trial court
sentenced Kehlhofer to five (5) years for the Level 5 conviction and to a
concurrent two (2) years for the Level 6 felony.
[8] Kehlhofer argues that the nature of the offense does not support her aggregate
five-year sentence. Specifically, she argues that the “non-violent nature” of the
offense renders her sentence inappropriate. (Kehlhofer’s Br. 14). We disagree.
The nature of Kehlhofer’s offense involves her possessing 9.24 grams of
methamphetamine, approximately $13,800 of fraudulent U.S. currency,
marijuana, and drug paraphernalia. Kehlhofer was also wanted on an arrest
warrant. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (holding that a
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 23 2019, 6:25 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 Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brittany Leann Kehlhofer, August 23, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-404 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1804-F5-66
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 1 of 7 Statement of the Case
[1] Brittany Kehlhofer (“Kehlhofer”) appeals the sentence imposed after she pled
guilty to Level 5 felony possession of methamphetamine1 and Level 6 felony
unlawful possession of a syringe.2 Kehlhofer argues that her sentence is
inappropriate in light of the nature of the offense and her character.
Concluding that Kehlhofer’s sentence is not inappropriate, we affirm her
sentence.
[2] We affirm.
Issue
Whether Kehlhofer’s sentence is inappropriate.
Facts
[3] On April 5, 2018, officers located Kehlhofer in a motel room in Lafayette,
Indiana. They were aware that she had an outstanding arrest warrant and took
her into custody. A search of the motel room revealed 9.24 grams of
methamphetamine, several syringes, scales, methamphetamine pipes,
1 IND. CODE § 35-48-4-6.1. 2 IND. CODE § 16-42-19-18.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 2 of 7 marijuana, and approximately $13,800 of fraudulent U.S. currency in a
backpack.
[4] The State charged Kehlhofer with Level 5 felony possession of
methamphetamine, Level 6 felony unlawful possession of a syringe, Class B
misdemeanor possession of marijuana, Class C misdemeanor possession of a
paraphernalia, and Level 6 felony counterfeiting. In December 2018, Kehlhofer
pled guilty to Level 5 felony possession of methamphetamine and Level 6
felony possession of a syringe.3 In exchange, the State dismissed the remaining
charges. Sentencing was left to the discretion of the trial court.
[5] At the sentencing hearing, the trial court found both mitigating and aggravating
factors present. The trial court identified the following mitigating factors:
[Kehlhofer] [pled] guilty and accepted responsibility; [Kehlhofer’s] substance abuse issues (diminished by her failure to take advantage of substance abuse programs previously provided).
(App. 25). The trial court identified the following aggravating factors:
[Kehlhofer’s] criminal history; [Kehlhofer] was on probation at the time of this offense; [Kehlhofer] has previously violated probation; [Kehlhofer’s] conduct while at the Tippecanoe County Jail (including a battery and failure to take advantage of rehabilitative programs available).
3 Pursuant to the plea agreement, Kehlhofer also admitted to violating her probation in cause number 79D02- 1704-F5-49.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 3 of 7 (App. 25). The trial court then found that the aggravating factors outweighed
the mitigating factors. The trial court sentenced Kehlhofer to five (5) years for
the Level 5 felony conviction and two (2) years for the Level 6 felony
conviction. The trial court ordered the sentences to be served concurrently, for
an aggregate sentence of five (5) years. Of those five years, four (4) years were
ordered executed at the Department of Correction, one (1) year on community
corrections, and one (1) year was suspended to probation. Kehlhofer now
appeals.
Decision
[6] Kehlhofer argues that her aggregate sentence of five years is inappropriate in
light of the nature of the offense and her character. This Court may revise a
sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). “The 7(B)
‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s
judgment, not unlike the trial court’s discretionary sentencing determination.”
Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,
though, we conduct that review with substantial deference and give due
consideration to the trial court’s decision—since the principal role of our review
is to attempt to leaven the outliers, and not to achieve a perceived correct
sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citation
omitted). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 4 of 7 inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. The defendant has the
burden of persuading the appellate court that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[7] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007)). Here, Kehlhofer was convicted of a Level 5 felony and a
Level 6 felony. The sentencing range for a Level 5 felony is “for a fixed term of
between one (1) and six (6) years, with the advisory sentence being three (3)
years.” I.C. § 35-50-2-6(b). The sentencing range for a Level 6 felony is “for a
fixed term of between six (6) months and two and one-half (2 ½) years, with the
advisory sentence being one (1) year.” I.C. § 35-50-2-7(b). The trial court
sentenced Kehlhofer to five (5) years for the Level 5 conviction and to a
concurrent two (2) years for the Level 6 felony.
[8] Kehlhofer argues that the nature of the offense does not support her aggregate
five-year sentence. Specifically, she argues that the “non-violent nature” of the
offense renders her sentence inappropriate. (Kehlhofer’s Br. 14). We disagree.
The nature of Kehlhofer’s offense involves her possessing 9.24 grams of
methamphetamine, approximately $13,800 of fraudulent U.S. currency,
marijuana, and drug paraphernalia. Kehlhofer was also wanted on an arrest
warrant. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (holding that a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 5 of 7 trial court can consider the totality of criminal conduct and its review is not
limited to what the defendant pled guilty to).
[9] When considering the character-of-the-offender prong of our inquiry, one
relevant consideration is the defendant’s criminal history. Rutherford v. State,
866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s
prior criminal history will vary “based on the gravity, nature and number of
prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d
261, 263 (Ind. 2008) (internal quotation marks and citation omitted).
[10] Regarding Kehlhofer’s character, the record reveals that in September 2017, she
was convicted of Level 5 felony possession of methamphetamine and Level 6
felony unlawful possession of a syringe, which are the exact offenses that she
committed in the underlying cause of this appeal. Two months later, she
violated the terms and conditions of her community corrections placement and
was ordered to serve 171 days in the Department of Correction. Thereafter, in
April 2018, Kehlhofer committed the instant offenses. Furthermore,
Kehlhofer’s continued drug-related behavior is indicative of a failure to take
advantage of rehabilitative opportunities in the past and reflects poorly on her
character. See, e.g., Phelps v. State, 969 N.E.2d 1009, 1021 (Ind. Ct. App. 2012)
(stating that the defendant’s refusal to take advantage of rehabilitative efforts
offered to him reflected poorly on his character), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 6 of 7 [11] Kehlhofer has not persuaded us that the nature of the offense and her character
make her sentence inappropriate. Therefore, we affirm the sentence imposed
by the trial court.
[12] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-404 | August 23, 2019 Page 7 of 7