Paul Michael Kage, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 23, 2017
• Docket: 76A04-1611-CR-2616
• 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 Jun 23 2017, 8:32 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 Adam C. Squiller Curtis T. Hill, Jr. Squiller & Hamilton, LLP Attorney General of Indiana Auburn, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Paul Michael Kage, Jr., June 23, 2017 Appellant-Defendant, Court of Appeals Case No. 76A04-1611-CR-2616 v. Appeal from the Steuben Superior Court State of Indiana, The Honorable William C. Fee, Appellee-Plaintiff. Judge Trial Court Cause No. 76D01-1509-F5-750

Mathias, Judge.

[1] Paul Michael Kage, Jr., ("Kage") was convicted in Steuben Superior Court of

Level 5 felony operating a motor vehicle after forfeiture of license for life, and

Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017 Page 1 of 5 he was ordered to serve six years executed in the Department of Correction.

Kage was also adjudicated a habitual offender and was ordered to serve an

additional two years executed. Kage appeals and argues that his aggregate

eight-year sentence is inappropriate in light of the nature of his offense and his

character.

[2] We affirm.

Facts and Procedural History

[3] On September 27, 2015, Indiana State Police Trooper Chris Kinsey (“Trooper

Kinsey”) observed Kage leave a gas station in a vehicle. Trooper Kinsey knew

Kage from past law enforcement contact and confirmed with a license check by

Steuben County Communications that Kage was a habitual traffic violator.

Trooper Kinsey and Patrolman Matt Kling of the Angola Police Department

subsequently stopped and arrested Kage without incident.

[4] Kage was charged with Level 5 felony operating a motor vehicle after forfeiture

of license for life. He was also charged as a habitual offender based on more

than two prior, unrelated felonies. In September 2016, a jury trial was held and

Kage was convicted of both charges.

[5] Kage's sentencing hearing was held on October 17, 2016. The trial court

observed that Kage’s decision to operate his vehicle despite knowing that he

had forfeited his license was not mitigated by any emergency circumstance. The

trial court considered Kage’s criminal history as an aggravating circumstance.

In addition to the four prior felony convictions used in the state’s habitual Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017 Page 2 of 5 offender allegation against him, Kage’s criminal history includes numerous

prior felony and misdemeanor convictions. These include convictions for drug

offenses, battery, invasion of privacy, operating a vehicle while intoxicated, and

other driving-related offenses. Kage’s criminal history also includes four

probation revocations. The trial court found no mitigating factors. The trial

court ordered Kage to serve an aggregate sentence of eight years executed in the

Department of Correction. Kage now appeals.

Discussion and Decision

[6] Kage argues that his aggregate eight-year executed sentence is inappropriate in

light of the nature of the offense and the character of the offender. Indiana

Appellate Rule 7(B) provides that “[t]he 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.” In conducting our review, “[w]e do not look

to determine if the sentence was appropriate; instead, we look to make sure the

sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

2012). “[S]entencing is principally a discretionary function in which the trial

court's judgment should receive considerable deference.” Cardwell v. State, 895

N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant's character (such as substantial virtuous traits of persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Kage

Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017 Page 3 of 5 bears the burden to establish that his sentence is inappropriate. Rutherford v.

State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

[7] When considering the nature of the offense, we observe that "the advisory

sentence is the starting point the Legislature selected as appropriate for the

crime committed." Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Courts may

consider the advisory sentence for a crime when imposing a sentence, but courts

are not required to use an advisory sentence. Ind. Code § 35-50-2-1.3(a-b). The

advisory sentence for a Level 5 felony is three years, with a sentencing range of

one to six years. Ind. Code § 35-50-2-6(b). Kage's six-year sentence is the

maximum available in the Level 5 felony sentencing range. Courts may

sentence habitual offenders convicted of a Level 5 felony to an additional fixed

term between two and six years. Ind. Code § 35-50-2-8(i)(2). Kage's two-year

habitual offender enhancement results in an aggregate sentence of eight years.

When evaluating whether a sentence is inappropriate, “appellate review should

focus on the forest – the aggregate sentence – rather than the trees – consecutive

or concurrent… or length of the sentence on any individual count.” Cardwell,

895 N.E.2d at 1225.

[8] The nature of Kage's offense is closely related to the nature of Kage's character.

Excluding his juvenile criminal history, Kage has exhibited “constant criminal

activity” since 1997. Appellant’s App. p. 27. The trial court agreed with the

presentence investigation report conclusion; Kage's criminal history is

“massive.” Tr. p. 105. His criminal history includes the following offenses

related to his current offense: two convictions for operating vehicle while

Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017 Page 4 of 5 intoxicated, one conviction for driving while suspended, one conviction for

driving while license not valid, one conviction for habitual traffic offender, and

one conviction for operating a motor vehicle after a lifetime suspension. Past

offenses unrelated to the present offense include convictions relating to

violence, invasion of privacy, drugs, and alcohol. The trial court characterized

Kage’s criminal history as “on point” with the nature of his present crime. Tr.

p. 105.

[9] The trial court found that although Kage cooperated during his arrest and

respected the court proceedings, his behavior did little to mitigate “a criminal

history that is this long.” Tr. p. 106. In the court's view, Kage's pattern of

recidivism is “reflective of [his] mindset” and “disrespectful of the rule of law.”

Tr. p. 105-6. Considering the length of Kage's criminal history and its relation

to his most recent convictions, we agree with the trial court that the aggregate

eight-year sentence is “earned and appropriate.” Tr. p. 106. We conclude that

Kage has not met his burden of persuading us that his eight-year sentence is

inappropriate in light of the nature of the offense and the character of the

offender. See Anglemyer, 896 N.E.2d at 494.

[10] Affirmed.

Kirsch, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 76A04-1611-CR-2616 | June 23, 2017 Page 5 of 5