Lewis Klayton Kratzer v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                           FILED
    this Memorandum Decision shall not be
    Mar 29 2019, 6:34 am
    regarded as precedent or cited before any
    court except for the purpose of establishing                                     CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                         Court of Appeals
    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 of Indiana
    Brooklyn, Indiana
    Benjamin J. Shoptaw
    Angela Sanchez
    Lyubov Gore
    Deputy Attorneys General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Lewis Klayton Kratzer,                                   March 29, 2019
    Appellant-Defendant,                                     Court of Appeals Case No.
    18A-CR-1885
    v.                                               Appeal from the Parke Circuit
    Court
    State of Indiana,                                        The Honorable Sam A. Swaim,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    61C01-1601-F3-11
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019                       Page 1 of 5
    Statement of the Case
    [1]   Following a remand for sentencing, Lewis Kratzer (“Kratzer”) appeals the
    fifteen-year aggregate sentence imposed after being convicted of Level 5 felony
    attempted robbery1 and Level 4 felony unlawful possession of a firearm by a
    serious violent felon.2 He argues that his sentence is inappropriate in light of
    the nature of his offenses and his character. Concluding that the sentence is not
    inappropriate, we affirm Kratzer’s sentence.
    [2]   We affirm.
    Issue
    Whether Kratzer’s sentence is inappropriate.
    Facts
    [3]   The facts underlying Kratzer’s convictions were stated by this Court in his first
    direct appeal as follows:
    On January 12, 2016, a man later identified as Kratzer entered
    the Montezuma Quick Stop in Parke County, pointed a handgun
    at the clerk, and demanded money. When the clerk called out to
    her supervisor, Kratzer left the store.
    Later that night, Terre Haute police officers were dispatched to
    investigate a report of a suspicious vehicle at the Red Roof Inn.
    As the officers approached the vehicle, the driver disregarded
    commands to stop and drove off. Eventually, the vehicle stopped
    and the driver and passenger both fled on foot. They were
    1
    IND. CODE § 35-42-5-1.
    2
    I.C. § 35-47-4-5.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 2 of 5
    apprehended and arrested. Kratzer, the passenger, was wearing
    clothing like that worn by the would-be robber of the Montezuma
    Quick Stop. Inside the vehicle, there was a handgun.
    Kratzer v. State, No. 61A01-1707-CR-1680 (Ind. Ct. App. Feb. 27, 2018).
    [4]   Kratzer was originally convicted of Level 3 felony attempted robbery. On
    direct appeal, this Court reduced the Level 3 felony conviction to a Level 5
    felony conviction on double jeopardy grounds and remanded for sentencing.
    On remand, the trial court reduced Kratzer’s attempted robbery conviction to a
    Level 5 felony and sentenced him to five (5) years. The trial court also
    increased Kratzer’s Level 4 felony sentence to ten (10) years, an increase of two
    years. The trial court ordered the sentences to be served consecutively, for an
    aggregate sentence of fifteen (15) years. Kratzer now appeals.
    Decision
    [5]   Kratzer argues that his aggregate sentence of fifteen years is inappropriate in
    light of the nature of the offenses and his character. This Court may revise a
    sentence if it is inappropriate in light of the nature of the offenses and the
    character of the offender. Ind. Appellate Rule 7(B). “The 7(B)
    ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s
    judgment, not unlike the trial court’s discretionary sentencing determination.”
    Knapp v. State, 
    9 N.E.3d 1274
    , 1291-92 (Ind. 2014), cert. denied. “On appeal,
    though, we conduct that review with substantial deference and give due
    consideration to the trial court’s decision—since the principal role of our review
    is to attempt to leaven the outliers, and not to achieve a perceived correct
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 3 of 5
    sentence.” 
    Id. at 1292
     (internal quotation marks, internal bracket, and citation
    omitted). “Appellate Rule 7(B) analysis is not to determine whether another
    sentence is more appropriate but rather whether the sentence imposed is
    inappropriate.” Conley v. State, 
    972 N.E.2d 864
    , 876 (Ind. 2012) (internal
    quotation marks and citation omitted), reh’g denied. The defendant has the
    burden of persuading the appellate court that his sentence is inappropriate.
    Childress v. State, 
    848 N.E.2d 1073
    , 1080 (Ind. 2006).
    [6]   “‘[R]egarding the nature of the offense, the advisory sentence is the starting
    point the Legislature has selected as an appropriate sentence for the crime
    committed.’” Bowman v. State, 51 N.E.4d 1174, 1181 (Ind. 2016) (quoting
    Anglemyer v. State, 
    868 N.E.2d 482
    , 494 (Ind. 2007), clarified on reh’g, 
    875 N.E.2d 218
     (Ind. 2007)). Here, Kratzer was convicted of one Level 5 felony and one
    Level 4 felony. The sentencing range for a Level 5 felony is “for a fixed term of
    between one (1) and six (6) years, with the advisory sentence being three (3)
    years.” I.C. § 35-50-2-6(b). The sentencing range for a Level 4 felony is “for a
    fixed term of between two (2) and twelve (12) years, with the advisory sentence
    being six (6) years.” I.C. § 35-50-2-5.5. The trial court sentenced Kratzer to
    five (5) years for his Level 5 felony conviction and ten (10) years for his Level 4
    felony conviction. As noted above, the trial court ordered the sentences to run
    consecutively, resulting in an aggregate sentence of fifteen (15) years.
    [7]   As to the nature of Kratzer’s offenses, he attempted to rob a convenience store
    by pointing a firearm at the store clerk. Kratzer, who was a convicted felon,
    was not allowed to possess a firearm. Not only did he possess a firearm, but he
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 4 of 5
    used it during the commission of another crime by pointing it at the store clerk
    and demanding money. The fact that Kratzer “fled the store with nothing[]”
    does not lessen the seriousness of his attempted robbery. (Kratzer’s Br. 9).
    [8]    When considering the character-of-the-offender prong of our inquiry, one
    relevant consideration is the defendant’s criminal history. Rutherford v. State,
    
    866 N.E.2d 867
    , 874 (Ind. Ct. App. 2007). The significance of a defendant’s
    prior criminal history will vary “based on the gravity, nature and number of
    prior offenses as they relate to the current offense.” Smith v. State, 
    889 N.E.2d 261
    , 263 (Ind. 2008) (internal quotation marks and citation omitted).
    [9]    Regarding Kratzer’s character, the trial court noted that he “has four prior adult
    felony convictions[.]” (Tr. 12). Kratzer’s disregard for the property rights of
    others has increased in seriousness and is part of a pattern of ignoring the
    criminal laws of Indiana, which reflects negatively on his character.
    Additionally, the fact that Kratzer was on probation for burglary when he
    attempted the armed robbery of the convenience store demonstrates his choice
    to repeatedly engage in criminal conduct. Kratzer has not persuaded us that the
    nature of the offenses and his character make his sentence inappropriate.
    Therefore, we affirm the sentence imposed by the trial court.
    [10]   Affirmed.
    Najam, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1885 | March 29, 2019   Page 5 of 5
    

Document Info

Docket Number: 18A-CR-1885

Filed Date: 3/29/2019

Precedential Status: Precedential

Modified Date: 3/29/2019