MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 18 2017, 9:26 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lynn Kohne, April 18, 2017 Appellant-Defendant, Court of Appeals Case No. 01A02-1608-CR-1973 v. Appeal from the Adams Circuit Court State of Indiana, The Honorable Chad Kukelhan, Appellee-Plaintiff. Judge Trial Court Cause No. 01C01-1511-F5-44
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 1 of 6 Case Summary and Issue [1] Lynn Kohne pleaded guilty without the benefit of a plea agreement to two
counts of causing death while driving with an alcohol concentration equivalent
greater than .08 as Level 5 felonies. The trial court sentenced Kohne to an
aggregate sentence of twelve years in the Indiana Department of Correction
(“DOC”), with two years suspended to probation. Kohne appeals, raising two
issues for our review, one of which we find dispositive: whether Kohne’s
sentence is inappropriate in light of the nature of the offenses and his character.
Concluding Kohne’s sentence is inappropriate, we reverse and remand.
Facts and Procedural History [2] On November 21, 2015, Kohne visited a local establishment and consumed
alcoholic beverages. Around 3:00 p.m. that afternoon, Kohne was driving his
vehicle southbound on Highway 27 in Decatur, Indiana. At the same time,
Gary Herriford, his wife Cynthia, and their thirteen-year-old daughter K.H.
were traveling northbound. Kohne’s vehicle veered into the Herrifords’ lane
and collided with their vehicle. Gary was pronounced dead at the scene and
Cynthia was hospitalized with severe injuries. K.H. was also taken to the
hospital but it does not appear she suffered injuries. A subsequent breath test
revealed Kohne’s blood alcohol content was .13.
[3] On November 23, 2015, the State charged Kohne with causing death while
operating a motor vehicle with an alcohol concentration equivalent greater than
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 2 of 6 .08 as a Level 5 felony and the same causing serious bodily injury as a Level 6
felony. Thereafter, Cynthia succumbed to her injuries and the State amended
the charging information to include only two counts of causing death while
operating a motor vehicle with an alcohol concentration equivalent greater than
.08 as Level 5 felonies. On June 27, 2016, Kohne pleaded guilty to both counts
without the benefit of a plea agreement and the trial court accepted the plea.
The trial court then entered judgement of conviction and sentenced Kohne on
each count to six years, with five years executed and one year of probation, to
be served consecutively for an aggregate sentence of twelve years in the DOC,
with two years suspended to probation. This appeal ensued.
Discussion and Decision 1
[4] Indiana Appellate Rule 7(B) provides, “The Court 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.” The defendant bears the burden of
persuading this court his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate
turns on “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.”
1 Kohne also contends the trial court abused its discretion in sentencing him. Because we conclude his sentence is inappropriate, we need not address this claim.
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 3 of 6 Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of
appellate review is to “leaven the outliers,” not achieve the perceived “correct”
result in each case. Id. at 1225.
[5] The advisory sentence is the starting point the legislature selected as an
appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Here, Kohne was
convicted of two counts of causing death while driving with an alcohol
concentration equivalent greater than .08 as Level 5 felonies. Indiana Code
section 35-50-2-6(b) states a person who commits a Level 5 felony shall be
imprisoned for a fixed term of between one and six years, with the advisory
sentence being three years. The trial court sentenced Kohne to six years in the
DOC for each offense, with one year suspended to probation.
[6] As to the nature of the offense, we certainly acknowledge the recklessness of
Kohne’s choice to drive while under the influence of alcohol, the dire
consequences of his conduct, and the tragic effect the accident had on the
Herrifords’ family, including their young daughter, K.H. However, we must
emphasize his conduct is what the elements of the crime already take into
consideration: the reckless choice of driving under the influence and causing the
death of an individual. As to Kohne’s character, we note Kohne was sixty
years old with significant medical issues, including congenital heart failure, at
the time of the sentencing hearing; he has been consistently employed for most,
if not all, of his adult life; he has a clean criminal record; he accepted full
responsibility for his actions; he showed remorse by apologizing to the
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 4 of 6 Herrifords’ family and sought their forgiveness; and the pre-sentence
investigation report indicates he is unlikely to reoffend.
[7] In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied, the
defendant was convicted of two counts of causing death while operating a
motor vehicle with an alcohol concentration equivalent greater than .08 as
Class C felonies and was sentenced to a maximum sentence of eight years on
each count, to be served consecutively. Compare Ind. Code § 35-50-2-6(a)
(providing a person convicted of a Class C felony committed prior to July 1,
2014, shall be imprisoned between two and eight years, with the advisory
sentencing being four years), with Ind. Code § 35-50-2-6(b) (providing a person
convicted of a Level 5 felony after June 30, 2014, shall be imprisoned between
one and six years, with the advisory sentence being three years). On appeal, the
defendant challenged the appropriateness of his sentence. In reviewing the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 18 2017, 9:26 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lynn Kohne, April 18, 2017 Appellant-Defendant, Court of Appeals Case No. 01A02-1608-CR-1973 v. Appeal from the Adams Circuit Court State of Indiana, The Honorable Chad Kukelhan, Appellee-Plaintiff. Judge Trial Court Cause No. 01C01-1511-F5-44
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 1 of 6 Case Summary and Issue [1] Lynn Kohne pleaded guilty without the benefit of a plea agreement to two
counts of causing death while driving with an alcohol concentration equivalent
greater than .08 as Level 5 felonies. The trial court sentenced Kohne to an
aggregate sentence of twelve years in the Indiana Department of Correction
(“DOC”), with two years suspended to probation. Kohne appeals, raising two
issues for our review, one of which we find dispositive: whether Kohne’s
sentence is inappropriate in light of the nature of the offenses and his character.
Concluding Kohne’s sentence is inappropriate, we reverse and remand.
Facts and Procedural History [2] On November 21, 2015, Kohne visited a local establishment and consumed
alcoholic beverages. Around 3:00 p.m. that afternoon, Kohne was driving his
vehicle southbound on Highway 27 in Decatur, Indiana. At the same time,
Gary Herriford, his wife Cynthia, and their thirteen-year-old daughter K.H.
were traveling northbound. Kohne’s vehicle veered into the Herrifords’ lane
and collided with their vehicle. Gary was pronounced dead at the scene and
Cynthia was hospitalized with severe injuries. K.H. was also taken to the
hospital but it does not appear she suffered injuries. A subsequent breath test
revealed Kohne’s blood alcohol content was .13.
[3] On November 23, 2015, the State charged Kohne with causing death while
operating a motor vehicle with an alcohol concentration equivalent greater than
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 2 of 6 .08 as a Level 5 felony and the same causing serious bodily injury as a Level 6
felony. Thereafter, Cynthia succumbed to her injuries and the State amended
the charging information to include only two counts of causing death while
operating a motor vehicle with an alcohol concentration equivalent greater than
.08 as Level 5 felonies. On June 27, 2016, Kohne pleaded guilty to both counts
without the benefit of a plea agreement and the trial court accepted the plea.
The trial court then entered judgement of conviction and sentenced Kohne on
each count to six years, with five years executed and one year of probation, to
be served consecutively for an aggregate sentence of twelve years in the DOC,
with two years suspended to probation. This appeal ensued.
Discussion and Decision 1
[4] Indiana Appellate Rule 7(B) provides, “The Court 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.” The defendant bears the burden of
persuading this court his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate
turns on “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.”
1 Kohne also contends the trial court abused its discretion in sentencing him. Because we conclude his sentence is inappropriate, we need not address this claim.
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 3 of 6 Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of
appellate review is to “leaven the outliers,” not achieve the perceived “correct”
result in each case. Id. at 1225.
[5] The advisory sentence is the starting point the legislature selected as an
appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Here, Kohne was
convicted of two counts of causing death while driving with an alcohol
concentration equivalent greater than .08 as Level 5 felonies. Indiana Code
section 35-50-2-6(b) states a person who commits a Level 5 felony shall be
imprisoned for a fixed term of between one and six years, with the advisory
sentence being three years. The trial court sentenced Kohne to six years in the
DOC for each offense, with one year suspended to probation.
[6] As to the nature of the offense, we certainly acknowledge the recklessness of
Kohne’s choice to drive while under the influence of alcohol, the dire
consequences of his conduct, and the tragic effect the accident had on the
Herrifords’ family, including their young daughter, K.H. However, we must
emphasize his conduct is what the elements of the crime already take into
consideration: the reckless choice of driving under the influence and causing the
death of an individual. As to Kohne’s character, we note Kohne was sixty
years old with significant medical issues, including congenital heart failure, at
the time of the sentencing hearing; he has been consistently employed for most,
if not all, of his adult life; he has a clean criminal record; he accepted full
responsibility for his actions; he showed remorse by apologizing to the
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 4 of 6 Herrifords’ family and sought their forgiveness; and the pre-sentence
investigation report indicates he is unlikely to reoffend.
[7] In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied, the
defendant was convicted of two counts of causing death while operating a
motor vehicle with an alcohol concentration equivalent greater than .08 as
Class C felonies and was sentenced to a maximum sentence of eight years on
each count, to be served consecutively. Compare Ind. Code § 35-50-2-6(a)
(providing a person convicted of a Class C felony committed prior to July 1,
2014, shall be imprisoned between two and eight years, with the advisory
sentencing being four years), with Ind. Code § 35-50-2-6(b) (providing a person
convicted of a Level 5 felony after June 30, 2014, shall be imprisoned between
one and six years, with the advisory sentence being three years). On appeal, the
defendant challenged the appropriateness of his sentence. In reviewing the
nature of the offenses, we noted two deaths resulted from the defendant’s crime
and the defendant attempted to lie about who was driving the vehicles. As to
the defendant’s character, we further noted the defendant had multiple prior
convictions and probation violations and was dishonest about who was driving
the vehicle, thus showing a lack of remorse and an inability to accept
responsibility. In light of these observations, we concluded the defendant’s
maximum sentence was not inappropriate. Ricci, 894 N.E.2d at 1095.
[8] Similar to Ricci, Kohne’s offenses caused the death of two individuals and
impacted the victims’ family members. In addition, we also note Kohne
received the maximum sentence on each count, although one year was
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 5 of 6 suspended. However, unlike the defendant in Ricci, Kohne has a clean criminal
history, immediately took responsibility for his crimes, and showed remorse.
[9] In short, two Level 5 felonies running consecutively to one another carry a
maximum sentence of twelve years executed. The trial court sentenced Kohne
to just below the maximum giving consideration to the suspended sentence:
twelve years with two suspended to probation. In light of the nature of the
offenses and Kohne’s character, we conclude this sentence is inappropriate. On
remand, we direct the trial court to amend its abstract of judgment and/or
sentencing order to reflect a sentence on each count of four years in the DOC,
with one year suspended to probation. The sentences shall be served
consecutively to one another for a total aggregate sentence of eight years in the
DOC, with two years suspended to probation.
Conclusion [10] Kohne’s sentence is inappropriate in light of the nature of the offenses and his
character. Accordingly, we reverse and remand with instructions.
[11] Reversed and remanded.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 6 of 6