MEMORANDUM DECISION Jun 24 2015, 10:27 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 Matthew J. McGovern Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kylie Lin Jenks, June 24, 2015
Appellant-Defendant, Court of Appeals Case No. 22A04-1411-CR-522 v. Appeal from the Floyd Circuit Court Lower Court Cause No. State of Indiana, 22C01-1402-FA-285 The Honorable J. Terrence Cody, Appellee-Plaintiff. Judge
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 1 of 9 Statement of the Case
[1] Kylie Lin Jenks (“Jenks”) appeals her sentence for Class B felony conspiracy to
commit arson.1 On appeal, she argues that the trial court abused its discretion
at sentencing by considering a pending charge as part of her criminal history.
In addition, she claims that her sentence is inappropriate in light of the nature
of the offense and her character. Concluding that the trial court did not err by
considering her pending charge during sentencing and that her sentence is not
inappropriate, we affirm her sentence.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in sentencing Jenks.
2. Whether Jenks’s sentence is inappropriate under Indiana Appellate Rule 7(B)
Facts [3] The record reveals that Jenks and her three codefendants, Cody Cashion
(“Cashion”), Shelby Makowsky (“Makowsky”), and A.A., a juvenile, were part
of a larger group of individuals committing various property crimes in the New
1 IND. CODE §§ 35-43-1-1; 35-41-5-2. We note that, effective July 1, 2014, a new version of this arson statute was enacted and that Class B felony arson is now a Level 4 felony. Because Jenks committed her crimes in January of 2014, we will apply the statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 2 of 9 Albany area. In late December 2013, Cashion was arrested for shoplifting, and
Jenks was attempting to raise money to pay his bond by selling stolen items. A
man who regularly bought stolen items from the group, Jonathan Stewart
(“Stewart,” a/k/a “Udy”), took stolen items from Jenks without paying for
them. When discussing Stewart’s theft on Facebook with another person, Jenks
said, “Well I would[’]ve [paid Cashion’s bond] if [Udy had not] [f]**kin run off
with all of our [f]**king shit[.] I’m gonna kill him . . . it[’]s all his bitch asses
fault or else [C]ody would be out right[] now[.]” (State’s Ex. 1, at 2).
[4] Cashion was released a few days later, and in the early morning hours of
January 4, 2014, Jenks drove Cashion, Makowsky, and A.A. to 335 Ealy Street
where the group thought Stewart was staying. However, Stewart was not home
at the time. Cashion fired a shell from a flare gun at the front of the home. The
flare landed in a bedroom where a six-year-old, a five-year-old, a four-year-old,
and a two-year-old child were sleeping. The room erupted in flames, and only
the five-year-old child was able to escape; the other children were killed.
[5] Detectives investigating the case eventually received information that
implicated Cashion and Jenks in the fire. The detectives found Jenks in New
Albany and interviewed her. She told them that Cashion had fired a flare into
the home and that she had been driving the car when he did it. On February
14, 2014, the State charged Jenks with one count of conspiracy to commit arson
resulting in serious bodily injury as a Class A felony. On July 12, 2014, Jenks
pled guilty to a lesser included offense of conspiracy to commit arson as a Class
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 3 of 9 B felony. The parties agreed that the trial court would decide her sentence after
argument from the parties.
The trial court held a sentencing hearing on October 16, 2014.2 After taking
evidence and testimony, the trial court found Jenks’s show of remorse, her
cooperation with law enforcement, her age, her academic achievement in high
school, her guilty plea, and the fact that she did not flee when charges were filed
as mitigating circumstances. The trial court found her criminal history, the fact
that she was on probation at the time of the offense, the fact that three children
died and one was seriously injured, that all of the children were younger than
twelve years old, and her conduct before she was arrested as aggravating
circumstances. In relevant part, the trial court stated the following about her
criminal history:
Now granted, [m]inor [c]onsumption is a misdemeanor with minimal penalties. The [effect] of that . . . if that were her only conviction I would not consider that an aggravating factor. But then we’ve[] not long after that we have a [c]onversion charge where she [pled] guilty and was placed on [p]robation. A few months later[,] she’s charged with a C felony drug offense and I understand that that might be [pled] out to something far less. However, she was on [p]robation so I do have to say that her history of criminal behavior [is an aggravating circumstance].
(Tr. 106).
2 Jenks waived her right to be sentenced within thirty days pursuant to Indiana Criminal Rule 11, and the hearing was continued twice to October 16, 2014.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 4 of 9 [6] The trial court sentenced Jenks to twenty (20) years in the Department of
Correction, and she now appeals her sentence.
Discussion [7] Jenks appeals her sentence, claiming that the trial court abused its discretion by
considering a pending charge in her criminal history. She also claims that her
sentence is inappropriate under Ind. Appellate Rule 7(B). We address each of
her claims separately.
1. Abuse of Discretion
[8] Notwithstanding the authority afforded to appellate courts by Indiana Appellate
Rule 7(B), “sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875
N.E.2d 218 (Ind. 2007). 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.” K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637,
640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in sentencing a
defendant by: (1) failing to enter a sentencing statement; (2) entering a
sentencing statement that explains reasons for imposing the sentence but the
record does not support the reasons; (3) omitting reasons that are clearly
supported by the record and advanced for consideration; or (4) imposing a
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MEMORANDUM DECISION Jun 24 2015, 10:27 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 Matthew J. McGovern Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kylie Lin Jenks, June 24, 2015
Appellant-Defendant, Court of Appeals Case No. 22A04-1411-CR-522 v. Appeal from the Floyd Circuit Court Lower Court Cause No. State of Indiana, 22C01-1402-FA-285 The Honorable J. Terrence Cody, Appellee-Plaintiff. Judge
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 1 of 9 Statement of the Case
[1] Kylie Lin Jenks (“Jenks”) appeals her sentence for Class B felony conspiracy to
commit arson.1 On appeal, she argues that the trial court abused its discretion
at sentencing by considering a pending charge as part of her criminal history.
In addition, she claims that her sentence is inappropriate in light of the nature
of the offense and her character. Concluding that the trial court did not err by
considering her pending charge during sentencing and that her sentence is not
inappropriate, we affirm her sentence.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in sentencing Jenks.
2. Whether Jenks’s sentence is inappropriate under Indiana Appellate Rule 7(B)
Facts [3] The record reveals that Jenks and her three codefendants, Cody Cashion
(“Cashion”), Shelby Makowsky (“Makowsky”), and A.A., a juvenile, were part
of a larger group of individuals committing various property crimes in the New
1 IND. CODE §§ 35-43-1-1; 35-41-5-2. We note that, effective July 1, 2014, a new version of this arson statute was enacted and that Class B felony arson is now a Level 4 felony. Because Jenks committed her crimes in January of 2014, we will apply the statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 2 of 9 Albany area. In late December 2013, Cashion was arrested for shoplifting, and
Jenks was attempting to raise money to pay his bond by selling stolen items. A
man who regularly bought stolen items from the group, Jonathan Stewart
(“Stewart,” a/k/a “Udy”), took stolen items from Jenks without paying for
them. When discussing Stewart’s theft on Facebook with another person, Jenks
said, “Well I would[’]ve [paid Cashion’s bond] if [Udy had not] [f]**kin run off
with all of our [f]**king shit[.] I’m gonna kill him . . . it[’]s all his bitch asses
fault or else [C]ody would be out right[] now[.]” (State’s Ex. 1, at 2).
[4] Cashion was released a few days later, and in the early morning hours of
January 4, 2014, Jenks drove Cashion, Makowsky, and A.A. to 335 Ealy Street
where the group thought Stewart was staying. However, Stewart was not home
at the time. Cashion fired a shell from a flare gun at the front of the home. The
flare landed in a bedroom where a six-year-old, a five-year-old, a four-year-old,
and a two-year-old child were sleeping. The room erupted in flames, and only
the five-year-old child was able to escape; the other children were killed.
[5] Detectives investigating the case eventually received information that
implicated Cashion and Jenks in the fire. The detectives found Jenks in New
Albany and interviewed her. She told them that Cashion had fired a flare into
the home and that she had been driving the car when he did it. On February
14, 2014, the State charged Jenks with one count of conspiracy to commit arson
resulting in serious bodily injury as a Class A felony. On July 12, 2014, Jenks
pled guilty to a lesser included offense of conspiracy to commit arson as a Class
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 3 of 9 B felony. The parties agreed that the trial court would decide her sentence after
argument from the parties.
The trial court held a sentencing hearing on October 16, 2014.2 After taking
evidence and testimony, the trial court found Jenks’s show of remorse, her
cooperation with law enforcement, her age, her academic achievement in high
school, her guilty plea, and the fact that she did not flee when charges were filed
as mitigating circumstances. The trial court found her criminal history, the fact
that she was on probation at the time of the offense, the fact that three children
died and one was seriously injured, that all of the children were younger than
twelve years old, and her conduct before she was arrested as aggravating
circumstances. In relevant part, the trial court stated the following about her
criminal history:
Now granted, [m]inor [c]onsumption is a misdemeanor with minimal penalties. The [effect] of that . . . if that were her only conviction I would not consider that an aggravating factor. But then we’ve[] not long after that we have a [c]onversion charge where she [pled] guilty and was placed on [p]robation. A few months later[,] she’s charged with a C felony drug offense and I understand that that might be [pled] out to something far less. However, she was on [p]robation so I do have to say that her history of criminal behavior [is an aggravating circumstance].
(Tr. 106).
2 Jenks waived her right to be sentenced within thirty days pursuant to Indiana Criminal Rule 11, and the hearing was continued twice to October 16, 2014.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 4 of 9 [6] The trial court sentenced Jenks to twenty (20) years in the Department of
Correction, and she now appeals her sentence.
Discussion [7] Jenks appeals her sentence, claiming that the trial court abused its discretion by
considering a pending charge in her criminal history. She also claims that her
sentence is inappropriate under Ind. Appellate Rule 7(B). We address each of
her claims separately.
1. Abuse of Discretion
[8] Notwithstanding the authority afforded to appellate courts by Indiana Appellate
Rule 7(B), “sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875
N.E.2d 218 (Ind. 2007). 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.” K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637,
640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in sentencing a
defendant by: (1) failing to enter a sentencing statement; (2) entering a
sentencing statement that explains reasons for imposing the sentence but the
record does not support the reasons; (3) omitting reasons that are clearly
supported by the record and advanced for consideration; or (4) imposing a
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 5 of 9 sentence for reasons that are improper as a matter of law. Anglemyer, 868
N.E.2d at 490.
[9] Jenks relies on Tunstill v. State, 568 N.E.2d 539 (Ind. 1991) to argue that the trial
court cannot consider a pending criminal charge as part of a criminal history for
purposes of sentencing. There, the trial court made the following statement at
sentencing:
The Court would enter judgment of conviction against the defendant for voluntary manslaughter as a Class B felony. The Court has read the pre-sentence, the Court did hear the testimony that was submitted during the trial on this matter. The Court does find the following aggravating circumstances: That the defendant was on probation at the time the offense was committed. That the defendant’s prior criminal history, consisting of an arrest on February 3, 1970, of carrying a concealed weapon, an arrest on May 18, 1971, for assault and battery with intent to kill, an arrest on March 13, 1983 for battery with injury, and other arrests indicating that the defendant’s conduct was in fact escalated from carrying a concealed weapon, to in fact, voluntary manslaughter.
Id. at 543. Our supreme court found that the statements about Tunstill’s arrests
were error because “the [trial] court inferred that appellant actually committed
the crimes for which he was arrested[.]” Id. at 545. (emphasis added).
[10] In Jenks’s case, the trial court mentions the pending drug charge but
acknowledges that it could be “pled to something far less.” (Tr. 106).
Moreover, unlike Tunstill, the trial court commented on a charge pending at
sentencing and not arrests without any further disposition. A charge pending at
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 6 of 9 the time of sentencing is a proper aggravating circumstance “and may be
considered by a sentencing court as being reflective of the defendant’s character
and as indicative of the risk that he will commit other crimes in the future.
Tunstill, 568 N.E.2d at 545; See also IND. CODE § 35-38-1-7.1. Accordingly, the
trial court did not abuse its discretion in sentencing Jenks.
2. Inappropriate Sentence
[11] Jenks claims that her sentence is inappropriate given the nature of the offense
and her character. She suggests that we revise her sentence downward with a
portion suspended to probation.
[12] Rule 7(B) of the Indiana Rules of Appellate Procedure gives this Court the
power to revise an inappropriate sentence in light of the nature of the offense
and character of the offender, giving due consideration to the trial court’s
decision. The defendant must persuade us that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Under
Rule 7(B), we seek “to attempt to leaven the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing
statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is inappropriate
ultimately depends upon “the culpability of the defendant, the severity of the
crime, the damage done to others, and a myriad of other factors that come to
light in a given case.” Id. at 1224.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 7 of 9 [13] In determining whether a sentence is inappropriate, we first look to the advisory
sentence provided by statute. Childress, 848 N.E.2d at 1081. Arson resulting in
serious bodily injury, including death, is a class A felony; the sentencing range
at this level is between twenty (20) and fifty (50) years, with an advisory
sentence of thirty (30) years. I.C. § 35-50-2-4. However, as a result of plea
negotiations, Jenks was allowed to plead guilty to conspiracy to commit arson
as a Class B felony; it carries a sentencing range between six (6) and twenty (20)
years, with an advisory sentence of ten (10) years. I.C. § 35-50-2-5(a).
[14] As to the nature of the offense and Jenks’s character, three children perished in
a fire and another was seriously injured because Jenks and her codefendants
sought revenge against Stewart for stealing property from them, property that
they themselves had stolen from others. Jenks asks us to note that she “was
unaware that any children were in the home, [and] the outcome in this case was
utterly unintended.” (Jenks’s Br. 14). However, she and her codefendants
conspired to commit an inherently dangerous act that included the foreseeable
risk of destruction of property and loss of life. The fact that three innocent
children lost their lives over nothing more than a dispute between thieves makes
this offense particularly horrendous. While Jenks’s criminal history is not
extensive, the fact that she was on probation and had a pending felony charge at
the time she was sentenced does not reflect the character of someone deserving
of a revised sentence. Jenks has failed to persuade us that the nature of the
offense and her character makes her sentence inappropriate.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 8 of 9 [15] We affirm.3
Crone, J., and Brown, J., concur.
3 We affirmed Makowsky’s twenty (20) year sentence for her role in the fire in a memorandum decision on January 28, 2015. Makowsky v. State, No. 22A04-1406-CR-295, 2015 WL 410453 (Ind. Ct. App. 2015), trans. denied. Cashion did not appeal his sentence for his part in this crime.
Court of Appeals of Indiana | Memorandum Decision 22A04-1411-CR-522 | June 24, 2015 Page 9 of 9