MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 02 2020, 8:11 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph W. Kruger, September 2, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-797 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1910-F3-39
Mathias, Judge.
[1] Joseph W. Kruger (“Kruger”) pleaded guilty in Tippecanoe Superior Court of
Level 3 felony armed robbery, Level 3 felony attempted armed robbery, and
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 1 of 7 two counts of Level 5 felony robbery. He also admitted to being an habitual
offender. The trial court sentenced Kruger to an aggregate term of forty years of
incarceration. Kruger appeals and argues that this sentence is inappropriate.
[2] We affirm.
Facts and Procedural History [3] In the latter part of 2019, Kruger went on a bank robbery spree. On August 5,
he went inside a bank branch in Lafayette, Indiana and pointed what appeared
to be a firearm, but in reality was a BB pistol, at the door greeter. He then
handed a teller a note that ordered her to give him cash. On August 26, Kruger,
who was wearing a fake beard and a hat to disguise his identity, entered a
branch of another bank in Lafayette. Again, he handed a teller a note. This note
had written on it, “This is a robbery, I have a gun. Give me the money. No die
[sic] packs, no GPS tracker, no alarms.” Appellant’s Conf. App. p. 95. The
teller gave Kruger money from his till, and Kruger fled. On October 3, Kruger
went to a branch of another bank in Lafayette wearing a wig and a surgical
mask. He then demanded the teller to give him cash, which the teller did.
Lastly, on October 22, Kruger went to yet another bank branch in Lafayette,
again wearing a fake beard, and handed the teller a note stating, “This is a
robbery. I have a gun. No dye packs. No GPS tracers, No alarms.” Id. at 101.
The teller complied with Kruger’s demands and gave him cash. The following
morning, the police apprehended Kruger at a hotel in Shelbyville, Indiana.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 2 of 7 [4] As a result of these incidents, the State charged Kruger on October 29, 2019,
with three counts of Level 3 felony armed robbery, three counts of Level 6
felony theft, and Class A misdemeanor theft. The State also alleged that Kruger
was an habitual offender. On February 18, 2020, Kruger entered into an
agreement with the State wherein he agreed to plead guilty to one count of
Level 3 felony armed robbery, one count of Level 3 felony attempted armed
robbery, and two counts of Level 5 felony robbery, and admitted to being an
habitual offender. In exchange, the State dismissed the other charges. Per the
plea agreement, sentencing was left to the discretion of the trial court.
[5] On April 1, 2020, the trial court accepted the plea agreement and sentenced
Kruger to twelve years on both of the Level 3 felony convictions, five years on
each of the Level 5 felony convictions. The trial court also imposed a six-year
habitual offender enhancement to the sentence on the Level 3 felony armed
robbery conviction. The court ordered the sentences to be served consecutively,
for an aggregate term of forty years of incarceration. Kruger now appeals.
Discussion and Decision [6] Kruger’s sole argument on appeal is that his aggregate forty-year sentence is
inappropriate. Indiana Appellate Rule 7(B) provides that we “may revise a
sentence authorized by statute 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.”
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 3 of 7 [7] Although we may revise a sentence on appeal, we still exercise deference to a
trial court’s sentencing decision, as Appellate Rule 7(B) requires us to give “due
consideration” to that decision, and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions. See
Merriweather v. State, 128 N.E.3d 503, 517 (Ind. Ct. App. 2019), trans. denied.
Indeed, sentencing is “‘principally a discretionary function in which the trial
court’s judgment should receive considerable deference’” on appeal. Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015) (quoting Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008)). “Such deference should prevail 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).” Id.
[8] Accordingly, “[t]he principal role of appellate review should be to attempt to
‘leaven the outliers’ and identify guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve what
we perceive to be a ‘correct’ result in each case. Merriweather, 128 N.E.3d at 517
(quoting Cardwell, 895 N.E.2d at 1225). Moreover, “[o]ur review under
Appellate Rule 7(B) should focus on ‘the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.’” Id. And the question is not whether another
sentence is more appropriate but whether the sentence imposed is
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 4 of 7 inappropriate. Id. at 517–18 (citing Rose v. State, 36 N.E.3d 1055, 1063 (Ind. Ct.
App. 2015)).
[9] On appeal, it is the defendant’s burden to persuade us that the sentence
imposed by the trial court is inappropriate. Id. at 518 (citing Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006)). “When we review the appropriateness of a
sentence, we consider ‘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. (citing Cardwell, 895 N.E.2d at 1224).
[10] In the present case, Kruger was convicted of two Level 3 felonies and two Level
5 felonies. He also admitted to being an habitual offender. The sentencing range
for a Level 3 felony is three to sixteen years, with an advisory sentence of nine
years. Ind. Code § 35-50-2-5(b).
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 02 2020, 8:11 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph W. Kruger, September 2, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-797 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1910-F3-39
Mathias, Judge.
[1] Joseph W. Kruger (“Kruger”) pleaded guilty in Tippecanoe Superior Court of
Level 3 felony armed robbery, Level 3 felony attempted armed robbery, and
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 1 of 7 two counts of Level 5 felony robbery. He also admitted to being an habitual
offender. The trial court sentenced Kruger to an aggregate term of forty years of
incarceration. Kruger appeals and argues that this sentence is inappropriate.
[2] We affirm.
Facts and Procedural History [3] In the latter part of 2019, Kruger went on a bank robbery spree. On August 5,
he went inside a bank branch in Lafayette, Indiana and pointed what appeared
to be a firearm, but in reality was a BB pistol, at the door greeter. He then
handed a teller a note that ordered her to give him cash. On August 26, Kruger,
who was wearing a fake beard and a hat to disguise his identity, entered a
branch of another bank in Lafayette. Again, he handed a teller a note. This note
had written on it, “This is a robbery, I have a gun. Give me the money. No die
[sic] packs, no GPS tracker, no alarms.” Appellant’s Conf. App. p. 95. The
teller gave Kruger money from his till, and Kruger fled. On October 3, Kruger
went to a branch of another bank in Lafayette wearing a wig and a surgical
mask. He then demanded the teller to give him cash, which the teller did.
Lastly, on October 22, Kruger went to yet another bank branch in Lafayette,
again wearing a fake beard, and handed the teller a note stating, “This is a
robbery. I have a gun. No dye packs. No GPS tracers, No alarms.” Id. at 101.
The teller complied with Kruger’s demands and gave him cash. The following
morning, the police apprehended Kruger at a hotel in Shelbyville, Indiana.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 2 of 7 [4] As a result of these incidents, the State charged Kruger on October 29, 2019,
with three counts of Level 3 felony armed robbery, three counts of Level 6
felony theft, and Class A misdemeanor theft. The State also alleged that Kruger
was an habitual offender. On February 18, 2020, Kruger entered into an
agreement with the State wherein he agreed to plead guilty to one count of
Level 3 felony armed robbery, one count of Level 3 felony attempted armed
robbery, and two counts of Level 5 felony robbery, and admitted to being an
habitual offender. In exchange, the State dismissed the other charges. Per the
plea agreement, sentencing was left to the discretion of the trial court.
[5] On April 1, 2020, the trial court accepted the plea agreement and sentenced
Kruger to twelve years on both of the Level 3 felony convictions, five years on
each of the Level 5 felony convictions. The trial court also imposed a six-year
habitual offender enhancement to the sentence on the Level 3 felony armed
robbery conviction. The court ordered the sentences to be served consecutively,
for an aggregate term of forty years of incarceration. Kruger now appeals.
Discussion and Decision [6] Kruger’s sole argument on appeal is that his aggregate forty-year sentence is
inappropriate. Indiana Appellate Rule 7(B) provides that we “may revise a
sentence authorized by statute 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.”
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 3 of 7 [7] Although we may revise a sentence on appeal, we still exercise deference to a
trial court’s sentencing decision, as Appellate Rule 7(B) requires us to give “due
consideration” to that decision, and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions. See
Merriweather v. State, 128 N.E.3d 503, 517 (Ind. Ct. App. 2019), trans. denied.
Indeed, sentencing is “‘principally a discretionary function in which the trial
court’s judgment should receive considerable deference’” on appeal. Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015) (quoting Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008)). “Such deference should prevail 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).” Id.
[8] Accordingly, “[t]he principal role of appellate review should be to attempt to
‘leaven the outliers’ and identify guiding principles for trial courts and those
charged with improvement of the sentencing statutes, but not to achieve what
we perceive to be a ‘correct’ result in each case. Merriweather, 128 N.E.3d at 517
(quoting Cardwell, 895 N.E.2d at 1225). Moreover, “[o]ur review under
Appellate Rule 7(B) should focus on ‘the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.’” Id. And the question is not whether another
sentence is more appropriate but whether the sentence imposed is
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 4 of 7 inappropriate. Id. at 517–18 (citing Rose v. State, 36 N.E.3d 1055, 1063 (Ind. Ct.
App. 2015)).
[9] On appeal, it is the defendant’s burden to persuade us that the sentence
imposed by the trial court is inappropriate. Id. at 518 (citing Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006)). “When we review the appropriateness of a
sentence, we consider ‘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. (citing Cardwell, 895 N.E.2d at 1224).
[10] In the present case, Kruger was convicted of two Level 3 felonies and two Level
5 felonies. He also admitted to being an habitual offender. The sentencing range
for a Level 3 felony is three to sixteen years, with an advisory sentence of nine
years. Ind. Code § 35-50-2-5(b). The sentencing range for a Level 5 felony is one
to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b). And
the trial court must sentence a person found to be an habitual offender to
additional fixed term that is between “six (6) years and twenty (20) years, for a
person convicted of murder or a Level 1 through Level 4 felony.” Ind. Code §
35-50-2-8(i)(1). Thus, Kruger faced a maximum sentence of sixteen years on
each of the Level 3 felony convictions and six years on each of the Level 5
felony convictions, plus an additional term of up to twenty years on the
habitual offender enhancement, for a maximum term of sixty-four years. The
trial court instead imposed an aggregate sentence of forty years—well above the
minimum, but also well below the maximum. It is with this in mind that we
consider the appropriateness of Kruger’s sentence.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 5 of 7 [11] Considering the nature of Kruger’s offenses, we note that he went on a spree of
four bank robberies to support his gambling habit. While robbing the banks,
Kruger hid his identity, and, at least on one occasion, brandished what
appeared to be a firearm. He also pointed his weapon at others to intimidate
them into complying with his demands. Kruger’s robbery notes indicated that
he was a sophisticated criminal with knowledge of robbery deterrents such as
dye packs and GPS trackers. Although certainly not the most brutal of bank
robbers, there is little about the nature of Kruger’s offenses that mitigates in
favor of reducing his sentence.
[12] Kruger’s sentence is further supported by his character, as revealed by his
extensive history of delinquent and criminal behavior. As a juvenile, Kruger
was adjudicated a delinquent child in Illinois for committing acts that would
constitute two counts of theft, one count of theft of a firearm, and one count of
residential burglary if committed by an adult. He was also the member of a
criminal street gang. In 1998, Kruger was convicted in Illinois as an adult of
Class 1 felony aggravated discharge of a firearm and sentenced to eight years of
incarceration. He was released on parole on this charge in April 2001. Later
that same year, he was charged in federal court with bank robbery by violence
or force, two counts of forcing a person to accompany him during the
attempted commission of bank robbery and brandishing a firearm during a
violent crime. Kruger was convicted on all but the first charge and sentenced to
a total of 204 months of incarceration with three years of probation. Kruger’s
prior convictions, as they relate to his current offenses, reflect very poorly on his
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 6 of 7 character. See Simmons v. State, 962 N.E.2d 86, 93 (Ind. Ct. App. 2011) (holding
that defendant’s prior convictions for drunken driving reflected very poorly on
his character as it related to his current offense of operating a vehicle while
intoxicated) (citing Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999)). In
addition, Kruger was also on probation for his federal crimes when he
committed the instant offenses. And, at the time of sentencing, he had pending
charges in Clark County for armed robbery and pending federal charges for
bank robbery and theft in Illinois.
Conclusion [13] In short, there is nothing about either the nature of Kruger’s offenses or his
character as an offender that persuade us that his sentence is an outlier that
needs to be revised. We therefore affirm the judgment of the trial court in all
respects.
[14] Affirmed.
Bradford, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-797 | September 2, 2020 Page 7 of 7