MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 09 2018, 9:16 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 Laura Sorge Fattouch Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael I. Keihn, Jr., November 9, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-118 v. Appeal from the Decatur Superior Court State of Indiana, The Honorable Matthew D. Appellee-Plaintiff. Bailey, Judge Trial Court Cause No. 16D01-1512-F4-768
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 1 of 7 Case Summary and Issue [1] Michael Keihn pleaded guilty to contributing to the delinquency of a minor, a
Level 5 felony, and obstruction of justice, a Level 6 felony. The trial court
sentenced him to 2,160 days in the Indiana Department of Correction with 180
days suspended to probation for the Level 5 felony conviction and to a
concurrent term of 900 days for the Level 6 felony. Keihn now appeals his
sentence, contending it is inappropriate in light of the nature of his offenses and
his character. Concluding the sentence is not inappropriate, we affirm.
Facts and Procedural History [2] In the summer of 2015, fourteen-year-old H.M. ran away from home and began
living with Keihn, a longtime friend of her father’s. During H.M.’s time with
Keihn, they engaged in sexual intercourse two times. Keihn also provided
H.M. with methamphetamine on more than one occasion. When the situation
was discovered and Keihn was arrested in late 2015, he reached out to H.M. to
encourage her to lie because he wanted out of jail. By doing so, he also violated
a no contact order. The State charged Keihn with sexual misconduct with a
minor, a Level 4 felony; obstruction of justice, a Level 6 felony; invasion of
privacy, a Class A misdemeanor; and two habitual offender enhancements.
[3] In the fall of 2017, Keihn entered into a plea agreement pursuant to which the
State amended the sexual misconduct charge to a charge of contributing to the
delinquency of a minor, a Level 5 felony. Keihn pleaded guilty to that charge
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 2 of 7 and obstruction of justice, a Level 6 felony, and the State dismissed the invasion
of privacy count and the habitual offender enhancements. The trial court found
three mitigating factors: 1) Keihn entered a guilty plea; 2) he has a history of
substance abuse; and 3) he testified that long-term incarceration would be an
undue hardship on his family. However, the trial court concluded that none of
these mitigators were significant enough to warrant a mitigated sentence. The
trial court identified two aggravating factors that it considered significant: 1)
Keihn has a significant criminal history; and 2) he was on probation at the time
he committed the instant offenses. Concluding the aggravating factors
outweighed the mitigating factors, the trial court ordered Keihn to serve an
aggregate sentence of 2,160 days with 180 days suspended to probation.
Additional facts will be provided as necessary.
Discussion and Decision I. Standard of Review [4] Keihn contends his sentence is inappropriate, specifically arguing that the
nature and circumstances of his crime and his criminal history do not warrant
an enhancement to the near-maximum sentence allowed by statute. Keihn
pleaded guilty to a Level 5 felony,1 the sentence for which is a “fixed term of
1 Because Keihn’s two sentences were ordered to be served concurrently, we address only the longest sentence. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (noting we “should focus on the forest— the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 3 of 7 between one (1) and six (6) years, with the advisory sentence being three (3)
years.” Ind. Code § 35-50-2-6(b). The advisory sentence “is the starting point
the Legislature has selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Keihn
received a sentence one month short of a maximum sentence.2
[5] Indiana Appellate Rule 7(B) provides that this 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.” We evaluate the trial court’s recognition or
non-recognition of mitigators and aggravators to guide our determination.
Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016). Upon review, our
principal role is to “attempt to leaven the outliers . . . but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). Whether a defendant’s sentence is inappropriate is grounded in
“our sense of 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.” Id. at 1224. The defendant bears the burden of persuading this court that
his or her sentence is inappropriate under the standard. Childress, 848 N.E.2d at
1080.
2 Six years from Keihn’s sentencing date would be December 15, 2023. His sentence of 2,160 days equates to an out date of November 14, 2023.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 4 of 7 II. Inappropriate Sentence [6] To determine the nature of the offense, we examine the details and
circumstances surrounding the offense. Washington v. State, 940 N.E.2d 1220,
1222 (Ind. Ct. App. 2011), trans. denied. As Keihn notes, neither of the
aggravating factors identified by the trial court concerned the specific nature
and circumstances of the crime. Nonetheless, we may look to any factors
appearing in the record in conducting 7(B) review. Reis v. State, 88 N.E.3d
1099, 1102 (Ind. Ct. App. 2017). Keihn pleaded guilty to the offense of
contributing to the delinquency of a minor for providing methamphetamine to
H.M. He also pleaded guilty to invasion of privacy for violating a no contact
order in H.M.’s favor. It appears from the record that H.M. is a troubled child,
having run away on multiple occasions and having numerous encounters with
police. Keihn acknowledged that H.M. was roughly the same age as his three
daughters and that he was in a position as a friend of the family to help take
care of H.M. after she ran away from her own parents. Yet, he failed to do so,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 09 2018, 9:16 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 Laura Sorge Fattouch Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael I. Keihn, Jr., November 9, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-118 v. Appeal from the Decatur Superior Court State of Indiana, The Honorable Matthew D. Appellee-Plaintiff. Bailey, Judge Trial Court Cause No. 16D01-1512-F4-768
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 1 of 7 Case Summary and Issue [1] Michael Keihn pleaded guilty to contributing to the delinquency of a minor, a
Level 5 felony, and obstruction of justice, a Level 6 felony. The trial court
sentenced him to 2,160 days in the Indiana Department of Correction with 180
days suspended to probation for the Level 5 felony conviction and to a
concurrent term of 900 days for the Level 6 felony. Keihn now appeals his
sentence, contending it is inappropriate in light of the nature of his offenses and
his character. Concluding the sentence is not inappropriate, we affirm.
Facts and Procedural History [2] In the summer of 2015, fourteen-year-old H.M. ran away from home and began
living with Keihn, a longtime friend of her father’s. During H.M.’s time with
Keihn, they engaged in sexual intercourse two times. Keihn also provided
H.M. with methamphetamine on more than one occasion. When the situation
was discovered and Keihn was arrested in late 2015, he reached out to H.M. to
encourage her to lie because he wanted out of jail. By doing so, he also violated
a no contact order. The State charged Keihn with sexual misconduct with a
minor, a Level 4 felony; obstruction of justice, a Level 6 felony; invasion of
privacy, a Class A misdemeanor; and two habitual offender enhancements.
[3] In the fall of 2017, Keihn entered into a plea agreement pursuant to which the
State amended the sexual misconduct charge to a charge of contributing to the
delinquency of a minor, a Level 5 felony. Keihn pleaded guilty to that charge
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 2 of 7 and obstruction of justice, a Level 6 felony, and the State dismissed the invasion
of privacy count and the habitual offender enhancements. The trial court found
three mitigating factors: 1) Keihn entered a guilty plea; 2) he has a history of
substance abuse; and 3) he testified that long-term incarceration would be an
undue hardship on his family. However, the trial court concluded that none of
these mitigators were significant enough to warrant a mitigated sentence. The
trial court identified two aggravating factors that it considered significant: 1)
Keihn has a significant criminal history; and 2) he was on probation at the time
he committed the instant offenses. Concluding the aggravating factors
outweighed the mitigating factors, the trial court ordered Keihn to serve an
aggregate sentence of 2,160 days with 180 days suspended to probation.
Additional facts will be provided as necessary.
Discussion and Decision I. Standard of Review [4] Keihn contends his sentence is inappropriate, specifically arguing that the
nature and circumstances of his crime and his criminal history do not warrant
an enhancement to the near-maximum sentence allowed by statute. Keihn
pleaded guilty to a Level 5 felony,1 the sentence for which is a “fixed term of
1 Because Keihn’s two sentences were ordered to be served concurrently, we address only the longest sentence. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (noting we “should focus on the forest— the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 3 of 7 between one (1) and six (6) years, with the advisory sentence being three (3)
years.” Ind. Code § 35-50-2-6(b). The advisory sentence “is the starting point
the Legislature has selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Keihn
received a sentence one month short of a maximum sentence.2
[5] Indiana Appellate Rule 7(B) provides that this 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.” We evaluate the trial court’s recognition or
non-recognition of mitigators and aggravators to guide our determination.
Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016). Upon review, our
principal role is to “attempt to leaven the outliers . . . but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). Whether a defendant’s sentence is inappropriate is grounded in
“our sense of 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.” Id. at 1224. The defendant bears the burden of persuading this court that
his or her sentence is inappropriate under the standard. Childress, 848 N.E.2d at
1080.
2 Six years from Keihn’s sentencing date would be December 15, 2023. His sentence of 2,160 days equates to an out date of November 14, 2023.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 4 of 7 II. Inappropriate Sentence [6] To determine the nature of the offense, we examine the details and
circumstances surrounding the offense. Washington v. State, 940 N.E.2d 1220,
1222 (Ind. Ct. App. 2011), trans. denied. As Keihn notes, neither of the
aggravating factors identified by the trial court concerned the specific nature
and circumstances of the crime. Nonetheless, we may look to any factors
appearing in the record in conducting 7(B) review. Reis v. State, 88 N.E.3d
1099, 1102 (Ind. Ct. App. 2017). Keihn pleaded guilty to the offense of
contributing to the delinquency of a minor for providing methamphetamine to
H.M. He also pleaded guilty to invasion of privacy for violating a no contact
order in H.M.’s favor. It appears from the record that H.M. is a troubled child,
having run away on multiple occasions and having numerous encounters with
police. Keihn acknowledged that H.M. was roughly the same age as his three
daughters and that he was in a position as a friend of the family to help take
care of H.M. after she ran away from her own parents. Yet, he failed to do so,
instead providing methamphetamine to and having sexual intercourse with a
fourteen-year-old girl. H.M. told police she saw Keihn as a friend but thought
he had come to see her as a girlfriend and was trying to control her. Indeed,
Keihn reached out to H.M. in violation of a no contact order to encourage her
to lie about their activities so he could get out of jail. Nothing about the nature
and circumstances of this crime leads us to the conclusion that Keihn’s sentence
is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 5 of 7 [7] A defendant’s life and conduct are illustrative of his or her character.
Washington, 940 N.E.2d at 1222. As to Keihn’s character, he acknowledges his
lengthy criminal history, but asserts that many of his crimes have been
substance-abuse related and he expressed his desire for rehabilitation when
pleading guilty. As the trial court did, we note Keihn did plead guilty.
However, his plea came nearly two years after he was first charged, and he
drastically reduced his sentencing exposure by pleading guilty to a Level 5
felony rather than a Level 4 felony with the possibility of an habitual offender
enhancement. Keihn’s criminal history consists of at least eighteen prior
criminal convictions and at least eleven petitions to revoke probation. He was
incarcerated from 2008 to 2012 for Class A felony dealing in methamphetamine
and was still serving probation in that case at the time he committed these
offenses. He also committed another offense while these charges were pending.
Most of Keihn’s criminal convictions have stemmed from drugs, including the
most serious offense he pleaded guilty to here. See Johnson v. State, 986 N.E.2d
852, 857 (Ind. Ct. App. 2013) (noting the significance of a criminal history
“varies based on the gravity, nature, and number of prior offenses in relation to
the current offense”). Although Keihn has completed numerous drug
awareness and rehabilitative programs while incarcerated, he acknowledges
that he is a drug addict and it does not appear that he has sought any drug
treatment on his own when out of prison, as he relapsed once released. Keihn
did seem to offer a genuine apology to H.M., but he also acknowledged the
damage he had done, stating at his sentencing hearing, “I can’t believe myself
what I’ve done to this young girl.” Transcript of Evidence, Volume 2 at 22. As Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 6 of 7 with the nature of the offenses, nothing about Keihn’s character leads us to the
conclusion that his sentence is inappropriate.
Conclusion [8] For the foregoing reasons, we conclude that Keihn’s sentence is not
inappropriate in light of the nature of his offenses and his character. His
sentence is therefore affirmed.
[9] Affirmed.
Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-118 | November 9, 2018 Page 7 of 7