MEMORANDUM DECISION Jul 20 2015, 11:13 am Pursuant to Ind. Appellate Rule 65(D), this 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 Christopher L. Clerc Gregory F. Zoeller Columbus, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kerry D. Ketchem July 20, 2015
Appellant-Defendant, Court of Appeals Case No. 03A01-1412-CR-519 v. Appeal from the Bartholomew Circuit Court
State of Indiana The Honorable Stephen R. Heimann, Judge Appellee-Plaintiff. Trial Court Case No. 03C01-1206-FD-3075
Mathias, Judge.
[1] Kerry Ketchem (“Ketchem”) pleaded guilty to three counts of Class D felony
theft and was ordered to serve an aggregate sentence of eight years. Ketchem
appeals and argues that the trial court abused its sentencing discretion by failing
to consider certain factors as mitigating.
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 1 of 6 [2] We affirm.
Facts and Procedural History
[3] Ketchem was employed by Faurecia, an automobile parts manufacturing
company located in Columbus, Indiana. Between February 2011 and February
2012, on at least seven occasions, Ketchem participated in the theft of auto
parts manufactured by Faurecia. He did so by persuading his unsuspecting co-
workers to help him load the parts onto unauthorized trucks to be taken,
without payment, to a recycling facility operated by an associate. After the
thefts were discovered and attributed to Ketchem, Ketchem admitted to a
private investigator hired by Faurecia and to the police that he had committed
the thefts. He claimed that he was coerced into participating in the thefts when
two other parties threatened the life of his step-granddaughter. Ketchem
profited personally from the thefts, receiving around $10,000 for one of the
shipments alone.
[4] On June 18, 2012, the State charged Ketchem with seven counts of Class D
felony theft. Ketchem pleaded guilty to Counts 1, 4, and 7, and the State agreed
to dismiss the remaining charges. The plea agreement provided that Ketchem’s
sentence would be left to the trial court’s discretion but would be capped at an
aggregate term of eight years.
[5] At Ketchem’s sentencing hearing, Ketchem’s counsel argued that the trial court
should find as mitigating that Ketchem was coerced into committing the thefts,
that Ketchem admitted to the crimes and cooperated with police in their
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 2 of 6 investigation, that he is the sole financial provider for his wife and step-
granddaughter, and that he would likely suffer from health problems if he were
incarcerated. The trial court, however, declared that Ketchem had “zero”
credibility and noted that he admitted to his crimes only after being caught with
his “hand . . . in the cookie jar.” Tr. p. 49. The trial court rejected all of
Ketchem’s proffered mitigating factors and found the following aggravating
factors: (1) Ketchem’s age and education level;1 (2) his prior seven convictions,
five of which are felonies and include theft of government property and
breaking and entering into FBI headquarters, fraud, mail fraud, bank fraud and
embezzlement, possession of a forged instrument, forgery, and conversion; and
(3) his previous parole violation. The trial court sentenced Ketchem to three
years executed on Count 1, two and one-half years executed on Count 4, and
two and one-half years executed on Count 7, all to run consecutively, for an
aggregate sentence of eight years. The trial court also ordered Ketchem to pay
restitution to Faurecia in the amount of $75,000.00 and to Chubb and Son,
Faurecia’s insurance provider, in the amount of $910,012.00.
[6] Ketchem now appeals.
Discussion and Decision
[7] Ketchem argues that the trial court abused its discretion by failing to consider as
mitigating that he “took responsibility for his actions from the time the
investigation began[,] admitted his guilt to a private investigator and the State
1 At the time of the crimes, Ketchem was in his sixties. He has a degree from the University of Maryland.
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 3 of 6 Police before the charges were filed[, and] admitted again in court by entering a
guilty plea.” Appellant’s Br. at 4.
[8] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (“Anglemyer I”). So long as
the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. An abuse of discretion occurs if the decision is clearly
against the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. at 491.
A trial court may abuse its sentencing discretion in a number of ways,
including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-
91.
[9] In its opinion on rehearing in Anglemyer I, our supreme court noted that:
a defendant who pleads guilty deserves “some” mitigating weight be given to the plea in return. But an allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant. And the significance of a guilty plea as a mitigating factor varies from case to case. For example, a guilty plea may not be significantly mitigating when it does not demonstrate the defendant’s acceptance of responsibility, or when the defendant receives a substantial benefit in return for the plea. Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 4 of 6 Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007) (“Anglemyer II”) (citations
omitted).
[10] In this case, the evidence against Ketchem was overwhelming, and he faced a
maximum sentence of twenty-one years, so the trial court’s conclusion that his
decision to plead guilty was more likely the result of pragmatism than
acceptance of responsibility was not an abuse of discretion. Furthermore,
despite his guilty plea, Ketchem continued to minimize his responsibility for the
crime at his sentencing hearing, maintaining that he was coerced into
committing the thefts and pointing blame at his associates. Under these facts
and circumstances, we conclude the trial court did not abuse its discretion by
omitting reference to his guilty plea when imposing his sentence.
[11] As for Ketchem’s expression of remorse, we note that, while an expression of
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MEMORANDUM DECISION Jul 20 2015, 11:13 am Pursuant to Ind. Appellate Rule 65(D), this 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 Christopher L. Clerc Gregory F. Zoeller Columbus, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kerry D. Ketchem July 20, 2015
Appellant-Defendant, Court of Appeals Case No. 03A01-1412-CR-519 v. Appeal from the Bartholomew Circuit Court
State of Indiana The Honorable Stephen R. Heimann, Judge Appellee-Plaintiff. Trial Court Case No. 03C01-1206-FD-3075
Mathias, Judge.
[1] Kerry Ketchem (“Ketchem”) pleaded guilty to three counts of Class D felony
theft and was ordered to serve an aggregate sentence of eight years. Ketchem
appeals and argues that the trial court abused its sentencing discretion by failing
to consider certain factors as mitigating.
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 1 of 6 [2] We affirm.
Facts and Procedural History
[3] Ketchem was employed by Faurecia, an automobile parts manufacturing
company located in Columbus, Indiana. Between February 2011 and February
2012, on at least seven occasions, Ketchem participated in the theft of auto
parts manufactured by Faurecia. He did so by persuading his unsuspecting co-
workers to help him load the parts onto unauthorized trucks to be taken,
without payment, to a recycling facility operated by an associate. After the
thefts were discovered and attributed to Ketchem, Ketchem admitted to a
private investigator hired by Faurecia and to the police that he had committed
the thefts. He claimed that he was coerced into participating in the thefts when
two other parties threatened the life of his step-granddaughter. Ketchem
profited personally from the thefts, receiving around $10,000 for one of the
shipments alone.
[4] On June 18, 2012, the State charged Ketchem with seven counts of Class D
felony theft. Ketchem pleaded guilty to Counts 1, 4, and 7, and the State agreed
to dismiss the remaining charges. The plea agreement provided that Ketchem’s
sentence would be left to the trial court’s discretion but would be capped at an
aggregate term of eight years.
[5] At Ketchem’s sentencing hearing, Ketchem’s counsel argued that the trial court
should find as mitigating that Ketchem was coerced into committing the thefts,
that Ketchem admitted to the crimes and cooperated with police in their
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 2 of 6 investigation, that he is the sole financial provider for his wife and step-
granddaughter, and that he would likely suffer from health problems if he were
incarcerated. The trial court, however, declared that Ketchem had “zero”
credibility and noted that he admitted to his crimes only after being caught with
his “hand . . . in the cookie jar.” Tr. p. 49. The trial court rejected all of
Ketchem’s proffered mitigating factors and found the following aggravating
factors: (1) Ketchem’s age and education level;1 (2) his prior seven convictions,
five of which are felonies and include theft of government property and
breaking and entering into FBI headquarters, fraud, mail fraud, bank fraud and
embezzlement, possession of a forged instrument, forgery, and conversion; and
(3) his previous parole violation. The trial court sentenced Ketchem to three
years executed on Count 1, two and one-half years executed on Count 4, and
two and one-half years executed on Count 7, all to run consecutively, for an
aggregate sentence of eight years. The trial court also ordered Ketchem to pay
restitution to Faurecia in the amount of $75,000.00 and to Chubb and Son,
Faurecia’s insurance provider, in the amount of $910,012.00.
[6] Ketchem now appeals.
Discussion and Decision
[7] Ketchem argues that the trial court abused its discretion by failing to consider as
mitigating that he “took responsibility for his actions from the time the
investigation began[,] admitted his guilt to a private investigator and the State
1 At the time of the crimes, Ketchem was in his sixties. He has a degree from the University of Maryland.
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 3 of 6 Police before the charges were filed[, and] admitted again in court by entering a
guilty plea.” Appellant’s Br. at 4.
[8] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (“Anglemyer I”). So long as
the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. An abuse of discretion occurs if the decision is clearly
against the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. at 491.
A trial court may abuse its sentencing discretion in a number of ways,
including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-
91.
[9] In its opinion on rehearing in Anglemyer I, our supreme court noted that:
a defendant who pleads guilty deserves “some” mitigating weight be given to the plea in return. But an allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant. And the significance of a guilty plea as a mitigating factor varies from case to case. For example, a guilty plea may not be significantly mitigating when it does not demonstrate the defendant’s acceptance of responsibility, or when the defendant receives a substantial benefit in return for the plea. Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 4 of 6 Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007) (“Anglemyer II”) (citations
omitted).
[10] In this case, the evidence against Ketchem was overwhelming, and he faced a
maximum sentence of twenty-one years, so the trial court’s conclusion that his
decision to plead guilty was more likely the result of pragmatism than
acceptance of responsibility was not an abuse of discretion. Furthermore,
despite his guilty plea, Ketchem continued to minimize his responsibility for the
crime at his sentencing hearing, maintaining that he was coerced into
committing the thefts and pointing blame at his associates. Under these facts
and circumstances, we conclude the trial court did not abuse its discretion by
omitting reference to his guilty plea when imposing his sentence.
[11] As for Ketchem’s expression of remorse, we note that, while an expression of
remorse may be considered as a mitigating circumstance, the trial court is under
no obligation to accept a defendant’s alleged remorse as a mitigator. Phelps v.
State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied. The trial court
possesses the ability to directly observe a defendant and can best determine
whether a defendant’s remorse is genuine. Id. Therefore, substantial deference
must be given to the trial court’s evaluation of a defendant’s remorse. Id. Absent
evidence of some impermissible consideration by the trial court, we will accept
its determination as to remorse. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct.
App. 2005).
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 5 of 6 [12] Here, Ketchem asks that we accept his declaration of remorse, which was
clearly rejected by the trial court. In fact, the trial court observed at the
sentencing hearing that Ketchem had “zero” credibility. Tr. p. 48. Also, as we
noted earlier, at the sentencing hearing, Ketchem continued to minimize his
blame for the crime. Ketchem presents no evidence of any impermissible
aggravator considered by the trial court. Therefore, the trial court was well
within its discretion to discredit Ketchem’s self-serving claim of remorse.
[13] For all of these reasons, we conclude that the trial court did not abuse its
sentencing discretion in failing to consider Ketchem’s guilty plea and claim of
remorse as mitigating factors.
[14] Affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision No. 03A01-1412-CR-519 | July 20, 2015 Page 6 of 6