Curtis D. Keplinger v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 17, 2015
• Docket: 35A05-1412-CR-572
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 17 2015, 8:37 am Memorandum Decision shall not be 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 Jeremy K. Nix Gregory F. Zoeller Matheny, Hahn, Denman & Nix, LLP Attorney General of Indiana Huntington, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Curtis D. Keplinger, July 17, 2015

Appellant-Defendant, Court of Appeals Cause No. 35A05-1412-CR-572 v. Appeal from the Huntington Circuit State of Indiana, Court The Honorable Thomas M. Hakes, Appellee-Plaintiff, Judge Cause No. 35C01-1406-FB-178

Robb, Judge.

Case Summary and Issue [1] Following a jury trial, Curtis Keplinger was convicted of attempted robbery, a

Class B felony, and found to be an habitual offender. He raises one issue on

Court of Appeals of Indiana | Memorandum Decision 35A05-1412-CR-572 | July 17, 2015 Page 1 of 5 appeal: whether his thirty-five year sentence is inappropriate in light of the

nature of his offense and his character. Concluding Keplinger’s sentence is not

inappropriate, we affirm.

Facts and Procedural History [2] Keplinger began dating Chasity Griffith in June of 2013. In July of that year,

Griffith suffered a ruptured gallbladder and was hospitalized for three months.

When she was released from the hospital, she began living with Keplinger.

Griffith was prescribed certain pain medications, including fentanyl and

Percocet, which Keplinger regularly asked her to give to him for his own use.

[3] On June 29, 2014, Keplinger asked Griffith for some of her medication, but she

refused. The two started to argue, and Keplinger attempted to snatch Griffith’s

purse away from her. Keplinger chased Griffith around the living room,

grabbed her throat from behind, and placed his hand over her nose and mouth,

preventing her from breathing. Griffith fled from the house and called her

father, who took Griffith to the police station to report the incident.

[4] The State charged Keplinger with Count 1, robbery, a Class B felony; Count 2,

strangulation, a Class D felony; and Count 3, attempted robbery, a Class B

felony. The State also alleged that Keplinger was an habitual offender. A jury

trial was held over the course of three days in October 2014. Keplinger was

Court of Appeals of Indiana | Memorandum Decision 35A05-1412-CR-572 | July 17, 2015 Page 2 of 5 found guilty of Count 3,1 and he admitted to being an habitual offender. The

trial court imposed a fifteen-year sentence on Count 3 and a twenty-year

enhancement for Keplinger’s habitual offender adjudication, resulting in an

aggregate executed sentence of thirty-five years imprisonment. This appeal

followed.

Discussion and Decision I. Standard of Review [5] Keplinger contends that his thirty-five year sentence is inappropriate. Indiana

Appellate Rule 7(B) provides appellate courts with the authority to revise a

defendant’s sentence 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.” It is the defendant’s burden to persuade the

reviewing court that the sentence is inappropriate. Conley v. State, 972 N.E.2d

864, 876 (Ind. 2012).

II. Keplinger’s Sentence [6] “When considering the nature of the offense, the advisory sentence is the

starting point to determine the appropriateness of a sentence.” Holloway v. State,

950 N.E.2d 803, 806 (Ind. Ct. App. 2011). At the time of Keplinger’s offense, a

Class B felony carried an advisory sentence of ten years, with a range of six to

1 Keplinger was acquitted of Count 1, and a mistrial was declared on Count 2.

Court of Appeals of Indiana | Memorandum Decision 35A05-1412-CR-572 | July 17, 2015 Page 3 of 5 twenty years. Ind. Code § 35-50-2-5(a). In addition, the habitual offender

statute provided that “[t]he court shall sentence a person found to be a habitual

offender to an additional fixed term that is not less than the advisory sentence

for the underlying offense nor more than three (3) times the advisory sentence

for the underlying offense.” Ind. Code § 35-50-2-8(h) (effective through June

30, 2014). Thus, Keplinger’s habitual offender enhancement required him to

receive an additional term of at least ten and as many as thirty years. Keplinger

received fifteen years for his Class B felony and an additional twenty years for

his habitual offender enhancement.

[7] We find the nature of Keplinger’s offense to be slightly more egregious than an

ordinary attempted robbery. Keplinger not only put Griffith in fear for her

safety but also attempted to take her pain medication by force, grabbing her by

the throat and covering her nose and mouth to prevent her from breathing.

Additionally, the victim was in a weakened condition due to her illness, and

Keplinger attempted to take advantage of her illness and satisfy his own base

urges without regard for her need for her prescribed medication.

[8] As to Keplinger’s character, the trial court referenced his extensive criminal

history, his violation of a no-contact order during the proceedings, and his

attempts to dissuade Griffith from testifying against him at trial. In addition to

his juvenile history, Keplinger’s adult criminal history consists of five prior

felony convictions—including battery, burglary, and theft—and several

misdemeanor convictions. The nature of Keplinger’s past offenses and their

similarity to his most recent crime reflects unfavorably on his character. See

Court of Appeals of Indiana | Memorandum Decision 35A05-1412-CR-572 | July 17, 2015 Page 4 of 5 Bryant v. State, 841 N.E.2d 1154, 1156 (Ind. 2006) (stating the weight of an

individual’s criminal history is “measured by the number of prior convictions

and their gravity, by their proximity or distance from the present offense, and

by any similarity or dissimilarity to the present offense that might reflect on a

defendant’s culpability.”).

[9] Keplinger points to the fact that he took care of Griffith when she was ill.

Although that may reflect positively on his character, in light of his criminal

history and demonstrated disrespect for the justice system, it is not enough to

persuade us that his sentence is inappropriate.

Conclusion [10] Concluding Keplinger’s thirty-five year sentence is not inappropriate in light of

the nature of his offense and his character, we affirm.

[11] Affirmed.

May, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 35A05-1412-CR-572 | July 17, 2015 Page 5 of 5