Jason J. Klinker v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 8, 2013
• Docket: 08A05-1301-CR-26
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Jul 08 2013, 9:43 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEVEN KNECHT GREGORY F. ZOELLER Vonderheide & Knecht Attorney General of Indiana Lafayette, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JASON J. KLINKER, ) ) Appellant-Defendant, ) ) vs. ) No. 08A05-1301-CR-26 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE CARROLL SUPERIOR COURT The Honorable Julian Ridlen, Special Judge Cause No. 08D01-1206-FD-45

July 8, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge Case Summary and Issue

Jason J. Klinker appeals the trial court’s sentence of three years for Class D felony

escape. Klinker raises one issue on appeal: whether his sentence is inappropriate in light

of his character and the nature of the offense. Concluding that his sentence is not

inappropriate, we affirm.

Facts and Procedural History

In 2010 Klinker pleaded guilty to battery by means of a deadly weapon as a Class

C felony, fraud as a Class D felony, and theft as a Class D felony. He was sentenced to

an aggregate term of eight years, with two years suspended. In January 2012, the court

granted Klinker’s motion for modification of placement, and Klinker was transferred to

Carroll County Community Corrections. Carroll County Community Corrections placed

Klinker in its home detention program, with Klinker signing a contract agreeing to abide

by the program rules, standard rules of probation, and any other rules imposed by the

court. One of the conditions in Klinker’s placement was that he remain in the interior of

his home unless he was given written permission to leave. Klinker left his residence

several times in violation of the contract, and his home detention coordinator gave him a

verbal warning and informed him that he could be charged with escape if he left his

residence again without permission. In June 2012, Klinker’s coordinator was on vacation

for a week and while away received notifications that Klinker had left his residence. The

notifications stated that Klinker left his residence on June 10 and returned on June 11; left

on June 11 for five hours; left on June 12 for three hours; left on June 13 for seven hours;

and left on June 14 and returned on June 17. Upon returning from vacation, Klinker’s

2 coordinator spoke to Klinker, who did not indicate that he left his residence because of an

emergency.

Klinker was charged with escape as a Class D felony on June 26, 2012. In

October 2012, a jury trial was held, and Klinker was found guilty as charged. In

December 2012 a sentencing hearing was held, and Klinker was sentenced to three years

in the Department of Correction, and the court recommended placement in a substance

abuse program. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Standard of Review

We are empowered by Indiana Appellate Rule 7(B) to revise a 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.” The

burden is on the defendant to persuade us that his sentence has met this inappropriateness

standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When

conducting this inquiry, we may look to any factors appearing in the record. Roney v.

State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. Our analysis of the

“nature of the offense” portion of the appropriateness review begins with the advisory

sentence. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). The “character of

the offender” portion of our review considers the aggravating and mitigating

circumstances and general considerations. Id. At the end of the day, our determination

will depend on 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.” Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). 3 II. Appropriateness of Sentence

Klinker was convicted of escape as a Class D felony. The sentencing range for

Class D felonies is six months to three years, with an advisory sentence of one and one

half years. Ind. Code § 35-50-2-7. As to the nature of the offense, Klinker argues that

“[t]his is far from the worst offense of its kind,” and therefore he should not have been

sentenced to the maximum allowed sentence. Brief of Appellant at 11. While the

maximum possible sentences are generally appropriate for the worst offenders, Evans v.

State, 725 N.E.2d 850, 851 (Ind. 2000), if we were to take that language literally, we

would reserve the maximum punishment for only the single most heinous offense, Brown

v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied. Instead, we should

focus less on comparing the facts of this case to others, and more on the nature, extent,

and depravity of the offense for which the defendant is being sentenced. Brown, 760

N.E.2d at 247. Here, Klinker had signed a contract and was well aware of the limits of

his home detention program. Moreover, Klinker violated his agreement previously and

had been subject to a verbal warning. Klinker then again violated the agreement and left

his residence multiple times for periods between several hours and several days. We

cannot say that the nature of his offense did not warrant an aggravated sentence.

As to Klinker’s character, Klinker has a significant criminal history, beginning as

a juvenile and continuing into adulthood with the offenses underlying his placement on

home detention. Klinker admits to his drug addiction, and previous attempts at treatment

appear to have been unsuccessful. The bulk of Klinker’s reasons for modification

revolve around things he wants to do in the future, such as be involved with his child and

earn a living. However, none of this tells us why this current sentence is inappropriate. 4 He can still do those things when he is released. In sum, Klinker has not met his burden

of persuading us that his sentence is inappropriate.

Conclusion

Concluding that Klinker’s sentence is not inappropriate, we affirm.

Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.