MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 21 2019, 10:45 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 R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Kyle Lock, November 21, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1280 v. Appeal from the Jefferson Circuit Court State of Indiana, The Honorable Steven M. Fleece, Appellee-Plaintiff Senior Judge Trial Court Cause Nos. 39C01-1802-F5-191 39C01-1805-CM-451
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 1 of 6 Case Summary [1] Richard Kyle Lock appeals the three-year aggregate sentence imposed by the
trial court following his guilty plea to level 6 felony intimidation and class A
misdemeanor invasion of privacy. He contends that his sentence is
inappropriate in light of the nature of the offenses and his character. Finding
that Lock has not met his burden to show that his sentence is inappropriate, we
affirm.
Facts and Procedural History [2] In October 2017, Lock’s ex-girlfriend, S.J., went to Lock’s home to retrieve
some of her belongings. An argument ensued between the former couple,
during which Lock picked S.J. up and dragged her out of his kitchen. As he
was dragging her, a painting fell from the wall. Lock accused S.J. of damaging
his property, and he threw her to the floor. S.J. stood up, and Lock punched
her in the face, causing her to fall back to the floor. Everything went “black”
for S.J., and her ears started “ringing.” Appellant’s App. Vol. 2 at 16. Lock
threatened S.J. that she may end up “like the guy across the street,” referring to
a shooting victim. Id. S.J. was able to escape and went to the police
department to report the incident. The officer who interviewed S.J. noticed
bruising, redness, and swelling to her face, red marks on her neck, and a “large
laceration” behind her left ear. Id. The State charged Lock with level 5 felony
kidnapping, level 6 felony intimidation, and level 6 felony battery under cause
number 39C01-1802-F5-191 (“cause F5-191”)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 2 of 6 [3] Then, on April 17, 2018, Lock sent two emails to S.J. The first email said in
pertinent part, “God I hate you I hope you get your ass whooped and get
pearlized[sic] in a car accident.” Id. at 106. The second email said in pertinent
part, “I hope you end up dead and get your ass whooped too.” Id. At the time
Lock sent these emails, there was a standing no-contact order prohibiting Lock
from communicating with S.J. Accordingly, on May 1, 2018, the State charged
Lock with class A misdemeanor invasion of privacy under cause number
39C01-1805-CM-451 (“cause CM-451”).
[4] Lock entered into a plea agreement in which he agreed to plead guilty to level 6
felony intimidation from cause F5-191 and class A misdemeanor invasion of
privacy from cause CM-451, in exchange for dismissal of the other two charges
in cause F5-191, as well as dismissal of additional charges under two other
cause numbers. Sentencing was left to the trial court’s discretion. Following a
hearing, the trial court imposed a two-year executed sentence for intimidation
and a one-year executed sentence for invasion of privacy, to be served
consecutively. This appeal ensued.
Discussion and Decision [5] Lock requests that we reduce the three-year aggregate sentence imposed by the
trial court pursuant to Indiana Appellate Rule 7(B), which provides that we
may revise a sentence authorized by statute if, after due consideration of the
trial court's decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 3 of 6 Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. “The question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.
Ct. App. 2007).
[6] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a level 6 felony is between six months and two and one-half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7. There is no advisory
sentence for a class A misdemeanor but simply a maximum sentence of one
year. Ind. Code § 35-50-3-2. The trial court here imposed a two-year sentence
for intimidation, and a consecutive one-year sentence for invasion of privacy,
resulting in an aggregate sentence below the statutory maximum.
[7] Lock urges that the nature of his offenses warrants a lesser aggregate sentence.
The record shows that Lock battered and then threatened to kill S.J. on multiple Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 4 of 6 occasions. Nevertheless, he blames S.J. and argues that S.J. “undisputedly
goaded” him into his criminal actions. Appellant’s Br. at 12. Lock downplays
the seriousness of his repeated violent and threatening behavior, and his attempt
to shift blame to his victim is not well taken. Lock has failed to persuade us
that the nature of these offenses warrants a sentence reduction.
[8] Lock fares no better when we consider his character. The character of the
offender is found in what we learn of the offender’s life and conduct. Croy v.
State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Lock’s criminal history began
in 2006 when he was convicted of class A misdemeanor operating a vehicle
while intoxicated.
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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 21 2019, 10:45 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 R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Kyle Lock, November 21, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1280 v. Appeal from the Jefferson Circuit Court State of Indiana, The Honorable Steven M. Fleece, Appellee-Plaintiff Senior Judge Trial Court Cause Nos. 39C01-1802-F5-191 39C01-1805-CM-451
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 1 of 6 Case Summary [1] Richard Kyle Lock appeals the three-year aggregate sentence imposed by the
trial court following his guilty plea to level 6 felony intimidation and class A
misdemeanor invasion of privacy. He contends that his sentence is
inappropriate in light of the nature of the offenses and his character. Finding
that Lock has not met his burden to show that his sentence is inappropriate, we
affirm.
Facts and Procedural History [2] In October 2017, Lock’s ex-girlfriend, S.J., went to Lock’s home to retrieve
some of her belongings. An argument ensued between the former couple,
during which Lock picked S.J. up and dragged her out of his kitchen. As he
was dragging her, a painting fell from the wall. Lock accused S.J. of damaging
his property, and he threw her to the floor. S.J. stood up, and Lock punched
her in the face, causing her to fall back to the floor. Everything went “black”
for S.J., and her ears started “ringing.” Appellant’s App. Vol. 2 at 16. Lock
threatened S.J. that she may end up “like the guy across the street,” referring to
a shooting victim. Id. S.J. was able to escape and went to the police
department to report the incident. The officer who interviewed S.J. noticed
bruising, redness, and swelling to her face, red marks on her neck, and a “large
laceration” behind her left ear. Id. The State charged Lock with level 5 felony
kidnapping, level 6 felony intimidation, and level 6 felony battery under cause
number 39C01-1802-F5-191 (“cause F5-191”)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 2 of 6 [3] Then, on April 17, 2018, Lock sent two emails to S.J. The first email said in
pertinent part, “God I hate you I hope you get your ass whooped and get
pearlized[sic] in a car accident.” Id. at 106. The second email said in pertinent
part, “I hope you end up dead and get your ass whooped too.” Id. At the time
Lock sent these emails, there was a standing no-contact order prohibiting Lock
from communicating with S.J. Accordingly, on May 1, 2018, the State charged
Lock with class A misdemeanor invasion of privacy under cause number
39C01-1805-CM-451 (“cause CM-451”).
[4] Lock entered into a plea agreement in which he agreed to plead guilty to level 6
felony intimidation from cause F5-191 and class A misdemeanor invasion of
privacy from cause CM-451, in exchange for dismissal of the other two charges
in cause F5-191, as well as dismissal of additional charges under two other
cause numbers. Sentencing was left to the trial court’s discretion. Following a
hearing, the trial court imposed a two-year executed sentence for intimidation
and a one-year executed sentence for invasion of privacy, to be served
consecutively. This appeal ensued.
Discussion and Decision [5] Lock requests that we reduce the three-year aggregate sentence imposed by the
trial court pursuant to Indiana Appellate Rule 7(B), which provides that we
may revise a sentence authorized by statute if, after due consideration of the
trial court's decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 3 of 6 Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. “The question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.
Ct. App. 2007).
[6] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a level 6 felony is between six months and two and one-half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7. There is no advisory
sentence for a class A misdemeanor but simply a maximum sentence of one
year. Ind. Code § 35-50-3-2. The trial court here imposed a two-year sentence
for intimidation, and a consecutive one-year sentence for invasion of privacy,
resulting in an aggregate sentence below the statutory maximum.
[7] Lock urges that the nature of his offenses warrants a lesser aggregate sentence.
The record shows that Lock battered and then threatened to kill S.J. on multiple Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 4 of 6 occasions. Nevertheless, he blames S.J. and argues that S.J. “undisputedly
goaded” him into his criminal actions. Appellant’s Br. at 12. Lock downplays
the seriousness of his repeated violent and threatening behavior, and his attempt
to shift blame to his victim is not well taken. Lock has failed to persuade us
that the nature of these offenses warrants a sentence reduction.
[8] Lock fares no better when we consider his character. The character of the
offender is found in what we learn of the offender’s life and conduct. Croy v.
State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Lock’s criminal history began
in 2006 when he was convicted of class A misdemeanor operating a vehicle
while intoxicated. He was then twice convicted of class D misdemeanor
operating a vehicle while intoxicated in 2011. In 2016, he was convicted of
operating a vehicle as a habitual traffic violator. The record indicates that he
has been previously placed both in community corrections and on probation,
but then violated the terms of those programs. Finally, his current plea
agreement resulted in the dismissal of several felony charges stemming from his
violent behavior against S.J. During sentencing, the trial court found that Lock
had refused to accept any responsibility for his current crimes and exhibited no
remorse. None of this reflects favorably on his character.
[9] Lock attempts to minimize his past and present behavior claiming that he has
unfortunately “fallen prey to substance abuse.” Appellant’s Br. at 13.
However, it is well settled that a history of substance abuse is not necessarily a
factor that weighs in favor of a lesser sentence, especially when a defendant has
not taken appropriate steps to treat the problem. See Marley v. State, 17 N.E.3d
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 5 of 6 335, 341 (Ind. Ct. App. 2014), trans. denied. Under the circumstances, Lock has
not shown that the sentence imposed by the trial court is inappropriate in light
of the nature of his offenses or his character.
[10] Affirmed.
Baker, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1280 | November 21, 2019 Page 6 of 6