MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 12 2019, 9:08 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Hubert A. Kraemer, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-122 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff. Judge Trial Court Cause No. 84D06-1702-F1-564
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 1 of 7 Case Summary [1] Hubert A. Kraemer (“Kraemer”) challenges his sentence, following a guilty
plea, for his convictions for neglect of a dependent, as a Level 3 felony,1 and
four counts of neglect of a dependent, as Level 6 felonies. 2 The only issue he
raises on appeal is whether his sentence is inappropriate in light of the nature of
the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] Approximately nine years ago, Kraemer and his wife, Robin (“Wife”), adopted
C.H. (“Child”) when he was three days old. App. Vol. II at 127. Child was
blind and had cerebral palsy. Child lived in the family home his whole life.
Kraemer’s grandson, Chad (“Chad”), Chad’s girlfriend, and their two children,
Ly.K. and Le.K., also lived in the home.
[4] On February 21, 2017, officers were dispatched to Kraemer’s home due to
reports that Child was in cardiac arrest. Child was transported to the hospital
but died shortly thereafter. After Child had been taken to the hospital, officers
spoke to Kraemer, who told them the extent of Child’s medical issues.
Kraemer stated that Child had been receiving medical treatment previously
1 Ind. Code § 35-46-1-4(b)(2) (2017). 2 I.C. § 35-46-1-4(a).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 2 of 7 from Child’s primary-care physician, but, after the physician’s divorce, Child
had to go to Riley Children’s Hospital for treatment. Kraemer stated that he
did not know the name of any doctor at Riley who allegedly treated Child. He
also told the officers that he had taken Child to his own doctor, Dr. Gopala,
within the last week for pneumonia treatment. However, officers also spoke to
Wife who said that Child had not been to a doctor in a year, and Dr. Gopala
later informed the police that he had never treated Child.
[5] The cause of Child’s death was starvation. At nine years old Child weighed just
under fifteen pounds. App. Vol. II at 20. Child’s “skin appeared to be stretched
over [his] bones,” and he died with methamphetamine in his system. App. Vol.
II at 21. Subsequent testing revealed that the two other children living in
Kraemer’s home, five-year-old Ly.K. and two-year-old Le.K., had
methamphetamine in their systems as well. Police also tested all the adults
living in the home, and Kraemer, Wife, Chad, and Chad’s girlfriend all tested
positive for methamphetamine.
[6] The State charged Kraemer with: one count of neglect of a dependent resulting
in death, a Level 1 felony;3 one count of neglect of a dependent resulting in
serious bodily injury, as a Level 3 felony; one count of failure to make a report,
as a Class B misdemeanor;4 four counts of neglect of a dependent, as Level 6
3 I.C. § 35-46-1-4(b)(3). 4 I.C. § 31-33-22-1(a).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 3 of 7 felonies; one count of maintaining a common nuisance, as a Level 6 felony;5
and one count of visiting a common nuisance, as a Class A misdemeanor.6 On
November 14, 2018, Kraemer entered into a plea agreement with the State
whereby he pled guilty to Level 3 felony neglect of a dependent resulting in
serious bodily injury and four counts of Level 6 felony neglect of a dependent in
exchange for dismissal of the remaining charges and an agreement that the
sentences would all run concurrently.
[7] On December 14, 2018, the case proceeded to sentencing. The court found
Child’s death, which was a more severe injury than was required to prove the
Level 3 felony, was an aggravator. The court found Kraemer’s health issues and
guilty plea were mitigators, but determined that the aggravator of Child’s death
“substantially outweigh[ed]” any mitigators. Tr. at 21-22. The court sentenced
Kraemer to concurrent sentences of one year for each of the Level 6 felony
convictions, and to twelve years, with four years suspended, for the Level 3
felony conviction. Thus, Kraemer received an aggregate sentence of twelve
years, with four years suspended, for his five felony convictions.
5 I.C. § 35-45-1-5(c). 6 I.C. § 35-45-1-5(b)(2)(B).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 4 of 7 Discussion and Decision [8] Kraemer maintains that his sentence is inappropriate in light of the nature of
the offense and his character. Article 7, Sections 4 and 6, of the Indiana
Constitution authorize independent appellate review and revision of a trial
court’s sentencing order. E.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind.
2018). This appellate authority is implemented through Indiana Appellate Rule
7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to
demonstrate that his sentence is inappropriate in light of the nature of his
offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or
non-recognition of aggravators and mitigators as an initial guide to determining
whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d
142, 147 (Ind. Ct. App. 2006). We consider not only the aggravators and
mitigators found by the trial court, but also any other factors appearing in the
record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans.
denied. It is the defendant’s burden to “persuade the appellate court that his or
her sentence has met th[e] inappropriateness standard of review.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). And the
defendant “bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach
v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.
[9] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
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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 Jun 12 2019, 9:08 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Hubert A. Kraemer, June 12, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-122 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff. Judge Trial Court Cause No. 84D06-1702-F1-564
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 1 of 7 Case Summary [1] Hubert A. Kraemer (“Kraemer”) challenges his sentence, following a guilty
plea, for his convictions for neglect of a dependent, as a Level 3 felony,1 and
four counts of neglect of a dependent, as Level 6 felonies. 2 The only issue he
raises on appeal is whether his sentence is inappropriate in light of the nature of
the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] Approximately nine years ago, Kraemer and his wife, Robin (“Wife”), adopted
C.H. (“Child”) when he was three days old. App. Vol. II at 127. Child was
blind and had cerebral palsy. Child lived in the family home his whole life.
Kraemer’s grandson, Chad (“Chad”), Chad’s girlfriend, and their two children,
Ly.K. and Le.K., also lived in the home.
[4] On February 21, 2017, officers were dispatched to Kraemer’s home due to
reports that Child was in cardiac arrest. Child was transported to the hospital
but died shortly thereafter. After Child had been taken to the hospital, officers
spoke to Kraemer, who told them the extent of Child’s medical issues.
Kraemer stated that Child had been receiving medical treatment previously
1 Ind. Code § 35-46-1-4(b)(2) (2017). 2 I.C. § 35-46-1-4(a).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 2 of 7 from Child’s primary-care physician, but, after the physician’s divorce, Child
had to go to Riley Children’s Hospital for treatment. Kraemer stated that he
did not know the name of any doctor at Riley who allegedly treated Child. He
also told the officers that he had taken Child to his own doctor, Dr. Gopala,
within the last week for pneumonia treatment. However, officers also spoke to
Wife who said that Child had not been to a doctor in a year, and Dr. Gopala
later informed the police that he had never treated Child.
[5] The cause of Child’s death was starvation. At nine years old Child weighed just
under fifteen pounds. App. Vol. II at 20. Child’s “skin appeared to be stretched
over [his] bones,” and he died with methamphetamine in his system. App. Vol.
II at 21. Subsequent testing revealed that the two other children living in
Kraemer’s home, five-year-old Ly.K. and two-year-old Le.K., had
methamphetamine in their systems as well. Police also tested all the adults
living in the home, and Kraemer, Wife, Chad, and Chad’s girlfriend all tested
positive for methamphetamine.
[6] The State charged Kraemer with: one count of neglect of a dependent resulting
in death, a Level 1 felony;3 one count of neglect of a dependent resulting in
serious bodily injury, as a Level 3 felony; one count of failure to make a report,
as a Class B misdemeanor;4 four counts of neglect of a dependent, as Level 6
3 I.C. § 35-46-1-4(b)(3). 4 I.C. § 31-33-22-1(a).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 3 of 7 felonies; one count of maintaining a common nuisance, as a Level 6 felony;5
and one count of visiting a common nuisance, as a Class A misdemeanor.6 On
November 14, 2018, Kraemer entered into a plea agreement with the State
whereby he pled guilty to Level 3 felony neglect of a dependent resulting in
serious bodily injury and four counts of Level 6 felony neglect of a dependent in
exchange for dismissal of the remaining charges and an agreement that the
sentences would all run concurrently.
[7] On December 14, 2018, the case proceeded to sentencing. The court found
Child’s death, which was a more severe injury than was required to prove the
Level 3 felony, was an aggravator. The court found Kraemer’s health issues and
guilty plea were mitigators, but determined that the aggravator of Child’s death
“substantially outweigh[ed]” any mitigators. Tr. at 21-22. The court sentenced
Kraemer to concurrent sentences of one year for each of the Level 6 felony
convictions, and to twelve years, with four years suspended, for the Level 3
felony conviction. Thus, Kraemer received an aggregate sentence of twelve
years, with four years suspended, for his five felony convictions.
5 I.C. § 35-45-1-5(c). 6 I.C. § 35-45-1-5(b)(2)(B).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 4 of 7 Discussion and Decision [8] Kraemer maintains that his sentence is inappropriate in light of the nature of
the offense and his character. Article 7, Sections 4 and 6, of the Indiana
Constitution authorize independent appellate review and revision of a trial
court’s sentencing order. E.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind.
2018). This appellate authority is implemented through Indiana Appellate Rule
7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to
demonstrate that his sentence is inappropriate in light of the nature of his
offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or
non-recognition of aggravators and mitigators as an initial guide to determining
whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d
142, 147 (Ind. Ct. App. 2006). We consider not only the aggravators and
mitigators found by the trial court, but also any other factors appearing in the
record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans.
denied. It is the defendant’s burden to “persuade the appellate court that his or
her sentence has met th[e] inappropriateness standard of review.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). And the
defendant “bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach
v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.
[9] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 5 of 7 receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day 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.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[10] We begin by noting that Kraemer’s eight-year executed sentence is one year
below the advisory sentence for a Level 3 felony, and the advisory sentence “is
the starting point the Legislature selected as appropriate for the crime
committed.” Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014); I.C. § 35-50-2-5(b)
(providing the advisory sentence for a Level 3 felony is between three and
sixteen years). Moreover, the nature of his offenses were severe and prolonged
and resulted in greater injury than necessary to prove the commission of neglect
of a dependent as a Level 3 felony; Kraemer starved his nine-year-old child to
death, and the child also had methamphetamine in his system. See Cardwell,
895 N.E.2d at 1224; I.C. § 35-38-1-7.1(a)(1). Kraemer’s crimes were not
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 6 of 7 accompanied by any show of “restraint” on his part, Stephenson, 29 N.E.3d at
122; his victim was very disabled, I.C. § 35-38-1-7.1(a)(7); and the crimes
resulted in the death of a child over whom Kraemer had care and control, I.C. §
35-38-1-7.1(a)(8). His sentence is not inappropriate in light of the nature of his
offenses.
[11] Nor does Kraemer’s character support a sentence revision. He has a criminal
history which, although remote, nevertheless reflects poorly on his character.
See Rutherford, 866 N.E.2d at 874. Moreover, Kraemer lied to the police when
he claimed he had taken Child to his own doctor recently; that too reflects
poorly on his character. While we acknowledge—as the trial court did—the
mitigating factors that Kraemer pled guilty and has his own health problems,
we agree with the trial court that those factors are far outweighed by the
horrendous fact that Kraemer starved his disabled child to death. Kraemer has
failed to carry his burden of persuading us that his sentence is inappropriate.
[12] Affirmed.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-122 | June 12, 2019 Page 7 of 7