Lawrence E. Kellems v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 14, 2015
• Docket: 87A04-1411-CR-537
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 14 2015, 5:29 am

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 Charles L. Martin Gregory F. Zoeller Martin & Martin, Attorneys at Law, Attorney General of Indiana P.C. Boonville, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lawrence E. Kellems, August 14, 2015 Appellant-Defendant, Court of Appeals Case No. 87A04-1411-CR-537 v. Appeal from the Warrick Superior Court State of Indiana, The Honorable Robert R. Appellee-Plaintiff Aylsworth Trial Court Cause No. 87D02-1401-FA-43

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 87A04-1411-CR-537 | August 14, 2015 Page 1 of 6 Case Summary [1] Lawrence E. Kellems (“Kellems”) appeals his aggregate forty-year sentence

imposed following his pleas of guilty to three counts of Child Molesting, 1 as

Class A felonies, and one count of Sexual Misconduct with a Minor, as a Class

C felony. 2 He presents the sole issue of whether the trial court abused its

sentencing discretion. We affirm.

Facts and Procedural History [2] On January 29, 2014, the State of Indiana charged Kellems with fifteen

offenses, alleging that Kellems had committed sexual acts involving four of his

ten minor children. On September 4, 2014, Kellems pled guilty to four of the

fifteen counts; the remainder were dismissed. On November 16, 2014, the trial

court imposed a forty-year sentence for each of the Class A felonies and a four-

year sentence for the Class C felony. All sentences were to be served

concurrently, providing for an aggregate sentence of forty years. This appeal

ensued.

Discussion and Decision

1 Ind. Code § 35-42-4-3(a)(1). In all instances, we refer to the version of the statutes in effect at the time of Kellems’s crimes. 2 I.C. § 35-42-4-9(b)(1).

Court of Appeals of Indiana | Memorandum Decision 87A04-1411-CR-537 | August 14, 2015 Page 2 of 6 [3] Upon conviction of a Class A felony, Kellems faced a sentencing range of twenty

years to fifty years, with the advisory sentence being thirty years. See Ind. Code

§ 35-50-2-4. Upon conviction of a Class C felony, he faced a sentencing range of

two years to eight years, with the advisory sentence being four years. See I.C. §

35-50-2-6. In imposing the aggregate forty-year sentence, the trial court found as

aggravators: Kellems was in a position of trust as to his victims, and the “quality

and quantity” of the offenses. (Confidential App. at 8.) In mitigation, the trial

court found that Kellems had no criminal history and he had entered a plea of

guilty. Kellems now argues that the trial court abused its discretion by relying

upon improper aggravators and ignoring mitigating circumstances.

[4] “So long as the sentence is within the statutory range, it is subject to review

only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This

includes the finding of an aggravating circumstance and the omission to find a

proffered mitigating circumstance. Id. at 490-91. When imposing a sentence

for a felony, the trial court must enter “a sentencing statement that includes a

reasonably detailed recitation of its reasons for imposing a particular sentence.”

Id. at 491.

[5] The trial court’s reasons must be supported by the record and must not be

improper as a matter of law. Id. However, a trial court’s sentencing order may

no longer be challenged as reflecting an improper weighing of sentencing

factors. Id. A trial court abuses its discretion if its reasons and circumstances

for imposing a particular sentence are clearly against the logic and effect of the

Court of Appeals of Indiana | Memorandum Decision 87A04-1411-CR-537 | August 14, 2015 Page 3 of 6 facts and circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind.

2007).

[6] Kellems first challenges the finding of the aggravating circumstance that he was

in a position of care, custody, or control of his victims. He argues:

None of these three (3) victims 3 testified that the care, custody, or control of the defendant over the victim was a cause for the defendant to have an advantage over the victim and accordingly facilitate his performance of the deviant sexual conduct over the victim.

(Appellant’s Br. at 5.) We find the argument somewhat perplexing, in that

Kellems is admittedly the father of each of the minor victims and, together with

his then-wife, had custody of the minors. The position of trust aggravator is

applicable where, as here, a defendant has “more than a casual relationship

with the victim and has abused the trust resulting from that relationship.”

Rodriquez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007).

[7] Kellems next challenges the trial court’s reliance upon the “quality and

quantity” of the offenses as an aggravator. (Confidential App. at 8.) As

Kellems observes, this is not an enumerated statutory sentencing consideration

found in Indiana Code § 35-38-1-7.1. Nonetheless, he presents no argument

that the trial court is precluded from considering the particularized

3 Kellems includes only the victims of the Class A felonies.

Court of Appeals of Indiana | Memorandum Decision 87A04-1411-CR-537 | August 14, 2015 Page 4 of 6 circumstances of the offenses. As to those circumstances, Kellems asserts that

there was no testimony – at the sentencing hearing or “at any other time” –

establishing the number of incidents or discussing their “quality.” (Appellant’s

Br. at 6.) The record on appeal includes no transcript of the guilty plea hearing,

and we do not speculate upon what evidence may have been presented or

omitted. Accordingly, Kellems presents no issue for our review in this regard.

[8] As for the allegedly omitted mitigating circumstances, 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. Anglemyer II, 875 N.E.2d at 220-

21. Kellems claims that the trial court should have recognized as mitigating

circumstances some of those enumerated in Indiana Code § 35-38-1-7.1: he

would likely respond affirmatively to probation or short-term imprisonment, his

character and attitudes indicate that he is unlikely to commit another crime,

imprisonment would result in undue hardship to his dependents, and the crimes

were a result of circumstances unlikely to reoccur.

[9] For the most part, Kellems did not advance these as mitigators at the sentencing

hearing. However, with regard to hardship to dependents, defense counsel

briefly mentioned that Kellems “has always had employment” and supported

his family with “legitimate income.” (Tr. at 16.) A trial court “is not required

to find that a defendant’s incarceration would result in undue hardship upon his

dependents.” Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005), trans.

denied. Indeed, “[m]any persons convicted of serious crimes have one or more

Court of Appeals of Indiana | Memorandum Decision 87A04-1411-CR-537 | August 14, 2015 Page 5 of 6 children and, absent special circumstances, trial courts are not required to find

that imprisonment will result in an undue hardship.” Dowdell v. State, 720

N.E.2d 1146, 1154 (Ind. 1999).

Conclusion [10] Kellems did not demonstrate that the trial court abused its sentencing discretion

in the finding of aggravating or mitigating circumstances.

[11] Affirmed.

Baker, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 87A04-1411-CR-537 | August 14, 2015 Page 6 of 6