Thomas M. Kirby v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 30 2019, 11:48 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas M. Kirby, April 30, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3058
v. Appeal from the Parke Circuit
Court
State of Indiana, The Honorable Sam A. Swaim,
Appellee-Plaintiff Judge
Trial Court Cause No.
61C01-1808-F5-236
Crone, Judge.
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Case Summary
[1] Thomas M. Kirby appeals the sentence imposed following his guilty plea to
level 5 felony intimidation, level 6 felony criminal recklessness, and class A
misdemeanor battery.1 He argues that his placement in the Department of
Correction (“DOC”) rather than on home detention is inappropriate based on
the nature of the offenses and his character. Concluding that Kirby has failed to
carry his burden to show that his placement is inappropriate, we affirm.
Facts and Procedural History
[2] On July 19, 2018, Kirby and Vickie Whitesell argued about loud music that was
playing in the car Kirby was sitting in. Kirby got out of the car and threatened
Whitesell. He pushed Whitesell against the vehicle and struck her in the jaw.
Another person present made a comment, and Kirby pulled out a knife and
began threatening to kill everyone involved.
[3] The State charged Kirby with level 5 felony intimidation, level 6 felony criminal
recklessness, and class A misdemeanor battery. Kirby pled guilty to all charges.
The probation officer recommended a total executed sentence of three years to
be served in the DOC but suggested that the trial court consider allowing Kirby
to serve the executed portion of his sentence on home detention. Appellant’s
App. Vol. 2 at 126. Consistent with the probation officer’s recommendation,
1
The appealed order also addresses a probation violation in cause number 61C01-1511-F3-244. However,
Kirby specifically states that he is not appealing the sentence he received for the probation violation.
Appellant’s Br. at 7 n.1.
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the trial court sentenced Kirby to concurrent executed terms of 1095 days for
his intimidation conviction and 365 days each for the criminal recklessness and
battery convictions, for an aggregate term of three years.2 As for Kirby’s
placement, the trial court considered home detention but decided against it:
Given the severity of the offense, the defendant’s prior history,
the fact that the Town of Rosedale is a small town, I don’t think
that home detention would be appropriate given that the
defendant has not done well on probation either and I don’t think
that he would do well on home detention. So all this time is to be
served executed in the Department of Correction.
Tr. Vol. 2 at 24. This appeal ensued.
Discussion and Decision
[4] Kirby asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B),
which states, “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.” When reviewing a sentence, our principal role is to leaven the
outliers rather than necessarily achieve what is perceived as the correct result in
each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not
look to determine if the sentence was appropriate; instead we look to make sure
2
Kirby states that the trial court ordered an aggregate term of four years, but that includes 365 days that the
trial court reinstated for Kirby’s probation violation in cause number 61C01-1511-F3-244, and Kirby is not
appealing that sentence.
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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, 895 N.E.2d
at 1222. “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 or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess
the nature of the offenses and character of the offender, “we may look to any
factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.
Ct. App. 2013). “The location where a sentence is to be served is an
appropriate focus for application of our review and revise authority.” King v.
State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). “Nonetheless, we note that it
will be quite difficult for a defendant to prevail on a claim that the placement of
his sentence is inappropriate.” Id. Kirby has the burden to show that his
sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g 875 N.E.2d 218.
[5] Specifically, Kirby argues that his placement in the DOC is inappropriate and
that he should serve his sentence on home detention. As for the nature of his
offenses, his sole contention is that the serious nature of the offenses was
accounted for in the elevation of the sentences for intimidation and criminal
recklessness to felonies. We fail to see how this contention bears on the
appropriateness of his placement in the DOC. Rather, the nature of the
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offenses shows that Kirby brandished a knife during the encounter, creating a
risk of substantial bodily injury that does not suggest that placement in the
DOC is inappropriate.
[6] As for his character, Kirby asserts that he accepted responsibility by pleading
guilty and has endured hardships that exemplify his character. The presentence
investigation report shows that he served in the United States Navy in the 1970s
and was honorably discharged; is disabled and receives V.A. benefits; is under
the care of the V.A. hospital in Danville, Illinois, for post-traumatic stress
disorder and liver, kidney, and prostate problems; is blind in his left eye and
deaf in his right ear; overcame an opioid addiction and has been clean for three
years; and attempted suicide in 1995 when he shot himself in the head. Kirby
has experienced hardships, and we are sympathetic to his situation, but these
hardships alone do not evince virtuous traits and good character. The record
shows that Kirby was convicted of level 5 felony aggravated battery by means
of a deadly weapon in January 2017 and was on probation for that conviction
when he committed the current offenses. These offenses constitute the second
violation of his probation. His criminal history reflects poorly on his character.
We conclude that Kirby has failed to carry his burden to show that his
placement in the DOC is inappropriate in light of the nature of the offenses and
his character. Therefore, we affirm his sentence.
[7] Affirmed.
Bradford, J., and Tavitas, J., concur.
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