Kevin T. Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 9, 2019
• Docket: 19A-CR-427
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 09 2019, 8:00 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 Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin T. Jones, October 9, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-427 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1806-F4-25

Mathias, Judge.

[1] Kevin T. Jones (“Jones”) was convicted in Tippecanoe Superior Court of Level

4 felony unlawful possession of a firearm by a serious violent felon and Class B

Court of Appeals of Indiana | Memorandum Decision 19A-CR-427 | October 9, 2019 Page 1 of 6 misdemeanor possession of marijuana. Jones appeals his aggregate seven-year

sentence, with five years executed and two years suspended to supervised

probation, claiming that his sentence is inappropriate in light of the nature of

the offense and the character of the offender.

[2] We affirm.

Facts and Procedural History [3] During a traffic stop on May 4, 2018, an Indiana State Trooper discovered a

loaded handgun and over 41 grams of marijuana in Jones’s vehicle. On June

15, 2018, Jones was charged with Level 4 felony unlawful possession of a

firearm by a serious violent felon, Level 5 felony carrying a handgun without a

license, Level 6 felony possession of marijuana, Class A misdemeanor carrying

a handgun without a license, and Class B misdemeanor possession of

marijuana.

[4] On December 18, 2018, Jones agreed to plead guilty to Level 4 felony unlawful

possession of a firearm by a serious violent felon and Class B misdemeanor

possession of marijuana.1 The plea agreement did not provide for a term of

sentence for either offense, but did stipulate that the sentences for each count

would run concurrently.

1 The remaining charges were dismissed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-427 | October 9, 2019 Page 2 of 6 [5] The trial court accepted Jones’s plea, and his sentencing hearing was held on

January 28, 2019. The trial court found several mitigating factors: Jones’s guilty

plea, that he cooperated with law enforcement at the time of his offense, his

health issues, his remorse, and Jones’s family and community support.

However, the court found that the last mitigating factor was diminished by

Jones’s $64,000 child support arrearage. The trial court considered Jones’s

criminal history, his prior probation revocations, and that the firearm was

loaded as aggravating factors.

[6] The trial court found that the aggravating circumstances outweighed the

mitigating circumstances. Therefore, for the Level 4 felony unlawful possession

of a firearm by a serious violent felon conviction, the court ordered Jones to

serve seven years, with five years executed and two years suspended to

supervised probation, and a concurrent term of 180 days for the Class B

misdemeanor possession of marijuana conviction. Jones now appeals.

Discussion and Decision [7] Jones claims that his aggregate seven-year sentence, with five years executed

and two years suspended to supervised probation, is inappropriate in light of the

nature of the offense and the character of the offender. Indiana Appellate Rule

7(B) states that we “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [this] 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 19A-CR-427 | October 9, 2019 Page 3 of 6 [8] In conducting our review, our principal role is to leaven the outliers, focusing

on the length of the aggregate sentence and how it is to be served. Bess v. State,

58 N.E.3d 174, 175 (Ind. 2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct.

App. 2016). This allows for consideration of all aspects of the penal

consequences imposed by the trial court in sentencing, i.e., whether it consists

of executed time, probation, suspension, home detention, or placement in

community corrections, and whether the sentences run concurrently or

consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). We do “not

look to see whether the defendant’s sentence is appropriate or if another

sentence might be more appropriate; rather, the test is whether the sentence is

‘inappropriate.’” Foutch, 53 N.E.3d at 581 (quoting Barker v. State, 994 N.E.2d

306, 315 (Ind. Ct. App. 2013), trans. denied). The defendant bears the burden of

persuading this Court that his sentence meets the inappropriateness standard.

Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).

[9] The sentencing range for Jones’s Level 4 felony conviction was between two

and twelve years, with the advisory sentence being six years. See Ind. Code § 35-

50-2-5.5. Jones was ordered to serve seven years with two years suspended to

probation. The trial court also imposed a maximum, but concurrent, 180-day

sentence for the Class B misdemeanor conviction. See Ind. Code § 35-50-3-3.

[10] When we consider the nature of Jones’s offenses, “the advisory sentence is the

starting point the Indiana Legislature has selected as an appropriate sentence[.]”

Green v. State, 65 N.E.3d 620, 637–38 (Ind. Ct. App. 2016), trans. denied. When

a sentence deviates from an advisory sentence, we consider whether there is

Court of Appeals of Indiana | Memorandum Decision 19A-CR-427 | October 9, 2019 Page 4 of 6 anything more or less egregious about the offense as committed by the

defendant that “makes it different from the ‘typical’ offense accounted for by

the legislature when it set the advisory sentence.” Holloway v. State, 950 N.E.2d

803, 806–07 (Ind. Ct. App. 2011). In this case, Jones’s offenses were not

significantly more egregious than the typical unlawful possession of a firearm

by a serious violent felon offense or possession of marijuana offense. However,

the handgun was loaded, and 41.48 grams is not an insignificant amount of

[11] While those facts might support a sentence slightly more than the advisory, the

trial court’s decision to impose a sentence one year more than the advisory is

more than supported by the character of the offender. Jones’s prior criminal

history spans nearly twenty years. Jones has been convicted of theft, driving

while suspended, possession of cocaine (three separate felony convictions),

receiving stolen property, and possession of a handgun without a permit. Jones

engaged in similar criminal activity in this case as he has in the past, i.e.,

handgun and drug offenses. In prior causes, he also failed to successfully

complete probation, and his probation was twice revoked. Finally, even though

he was employed for many years, he has amassed a $64,000 child support

arrearage for his two minor children.

[12] The fact that Jones was ordered to serve only one more year than the advisory

sentence, and one year less than the advisory in executed time, is reflected in

the fact that he cooperated with law enforcement, pleaded guilty, is in poor

health, and expressed remorse for his offenses.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-427 | October 9, 2019 Page 5 of 6 [13] For all of these reasons, we conclude that Jones’s aggregate seven-year

sentence, with five years executed and two years suspended to supervised

probation, is not inappropriate in light of the nature of the offense and the

character of the offender.

[14] Affirmed.

Robb, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-427 | October 9, 2019 Page 6 of 6