Kevin E. Bell v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jun 26 2018, 9:16 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane Ann Noblitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin E. Bell, June 26, 2018
Appellant-Defendant, Court of Appeals Case No.
40A05-1712-CR-2977
v. Appeal from the Jennings Circuit
Court
State of Indiana, The Honorable Jon W. Webster,
Appellee-Plaintiff. Judge
Trial Court Cause No.
40C01-1609-F5-65
Bradford, Judge.
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Case Summary
[1] On September 17, 2016, Kevin Bell was driving a vehicle without a valid
driver’s license. At some point, the vehicle he was driving went down a ravine
and crashed. His girlfriend, who was a passenger in the vehicle, died as a result
of the crash. Approximately three days later, the police became aware of the
accident. The State subsequently charged Bell with a number of crimes,
including Level 5 felony driving while suspended. Bell pled guilty to Level 5
felony driving while suspended. In exchange for Bell’s guilty plea, the State
agreed to drop all of the remaining charges. Although the length of Bell’s
sentence was left to the discretion of the trial court, the terms of the plea
agreement indicated that none of the sentence would be suspended. The trial
court accepted Bell’s guilty plea and sentenced him to an executed four-year
term. Bell contends both that his sentence is inappropriate and that the trial
court abused its discretion in failing to find certain mitigating factors.
Concluding otherwise, we affirm.
Facts and Procedural History
[2] On September 17, 2016, Bell and his girlfriend Nikki Reed were driving
together from Pennsylvania to Indiana to attend Reed’s son’s birthday party.
Despite knowing that his driver’s license was suspended, Bell drove Reed’s
vehicle. While driving on U.S. 50 in Jennings County, Bell veered off the road
into a ravine and struck a tree. Reed died as a result of the impact.
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[3] Bell remained in the vehicle for the next three days. On September 20, 2016, he
crawled out a broken window and attempted to climb out of the ravine. As he
did this, he found his cellular phone, which had two percent of the battery
power remaining. Instead of immediately calling 911, Bell informed his
employer that he had been in an accident. Bell did not notify 911 of the
accident before the phone’s battery died.
[4] Bell eventually climbed out of the ravine and flagged down a passing motorist,
who called 911. Indiana State Trooper Rick Hewitt responded to the 911 call.
When Trooper Hewitt arrived, Bell informed Trooper Hewitt that he had fallen
down into the ravine. Upon receiving Bell’s name, Trooper Hewitt learned that
Bell was associated with Reed who had been reported missing by her ex-
husband. When Trooper Hewitt inquired about Reed, Bell had a “surprised
look” on his face and told Trooper Hewitt that “she was probably still in the
truck.” Appellant’s App. Vol. II, p. 26. After Trooper Hewitt asked “what
truck,” Bell admitted that there was a vehicle at the bottom of the ravine.
Appellant’s App. Vol. II, p. 26. Trooper Hewitt observed that the location of
the crashed vehicle was “at the bottom of a heavily wooded ravine and was not
visible from the roadway due to thick vegetation.” Appellant’s App. Vol. II, p.
26. Bell initially told Trooper Hewitt that Reed had been driving at the time of
the accident but later admitted that he was driving when the accident occurred.
[5] On September 27, 2016, the State charged Bell with Level 5 felony driving
while suspended, Level 5 felony leaving the scene of an accident resulting in
death, Class A misdemeanor failure to report a dead body, Class A
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misdemeanor driving while suspended, and Class B misdemeanor false
informing. Bell subsequently pled guilty to Level 5 felony driving while
suspended. In exchange for Bell’s guilty plea, the State agreed to drop all of the
remaining charges. The plea agreement left the length of Bell’s sentence to the
trial court but provided that none of the sentence would be suspended. The trial
court accepted Bell’s guilty plea and sentenced him to an executed four-year
term.
Discussion and Decision
[6] Bell challenges his sentence on appeal. First, he contends that his four-year
sentence is inappropriate. Next, he contends that the trial court abused its
discretion by failing to consider certain mitigating factors. We disagree with
both contentions.
I. Appropriateness of Sentence
[7] Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
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denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[8] In this case, Bell was involved in a traffic accident while driving without a valid
driver’s license. His girlfriend, who was a passenger in the vehicle, died as a
result of the accident. When Bell finally exited the vehicle, he did not
immediately notify the police of the accident, despite having the brief
opportunity to do so. In addition, when he finally did speak to police, he
initially lied and said that he had fallen down the ravine. He only admitted that
he had been driving in a vehicle in which Reed was a passenger when
specifically asked about her whereabouts.
[9] As for Bell’s character, Bell admits that despite having limited mental function,
he understands right from wrong and knows what he should and should not do.
At the time of his arrest, there was an active bench warrant for his arrest
stemming from a harassment case in Pennsylvania. Moreover, although Bell’s
criminal history involved only one other criminal conviction, this prior
conviction also involved a traffic accident that resulted in the death of another
person. Similar to this case, following the first accident, Bell did not
immediately report the accident but rather waited a number of days before
coming forward to report his involvement. Further, it does not reflect well on
his character that when speaking to police, Bell was not immediately forthright
about the circumstances surrounding the most recent accident. Bell has failed
to persuade us that his four-year sentence is inappropriate.
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II. Abuse of Discretion
[10] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218
(Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom.” Id.
(quotation omitted).
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence-including a finding of aggravating and
mitigating factors if any-but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the
trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Id. at 490–91. A single aggravating factor may support an enhanced sentence.
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).
[11] In sentencing Bell, the trial court found Bell’s criminal history including his
prior felony conviction and the outstanding active warrant for his arrest and the
fact that he “delayed 3–4 days in calling anyone or looking for help while lying
in a ravine” to be aggravating factors. Appellant’s App. Vol. II, p. 62. The trial
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court also found the fact that Bell (1) admitted his crime without the necessity
of a trial, (2) is a high school graduate, (3) is a low risk to reoffend, and (4) “has
some functional disabilities arising from complications with his birth” to be
mitigating factors. Appellant’s App. Vol. II, p. 62. Bell does not argue on
appeal that these factors are not supported by the record. Rather, he claims that
the trial court abused its discretion by failing to also find his “extreme remorse”
and the “likelihood he would respond affirmatively to probation or short-term
incarceration” to be mitigating factors. Appellant’s Br. p. 14.
[12] Although a sentencing court must consider all evidence of mitigating factors
offered by a defendant, the finding of mitigating factors rests within the court’s
discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is
neither required to find the presence of mitigating factors, Fugate, 608 N.E.2d at
1374 (citing Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)), nor obligated
to explain why it did not find a factor to be significantly mitigating. Sherwood v.
State, 749 N.E.2d 36, 38 (Ind. 2001) (citing Birdsong v. State, 685 N.E.2d 42, 47
(Ind. 1997)). “A court does not err in failing to find mitigation when a
mitigation claim is highly disputable in nature, weight, or significance.”
Henderson, 769 N.E.2d at 179 (internal quotations omitted). Furthermore, while
Indiana law mandates that the trial judge not ignore facts in the record that
would mitigate an offense, and a failure to find mitigating factors that are
clearly supported by the record may imply that the trial court failed to properly
consider them, id., an allegation that the trial court failed to find a mitigating
factor requires the defendant to establish that the mitigating evidence is both
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significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835,
838 (Ind. 1999).
[13] With respect to Bell’s claimed remorse, we have previously concluded that
“substantial deference must be given to a trial court’s evaluation of remorse
[because t]he trial court, which has the ability to directly observe the defendant
and listen to the tenor of his or her voice, is in the best position to determine
whether the remorse is genuine.” Corralez v. State, 815 N.E.2d 1023, 1025 (Ind.
Ct. App. 2004). Like in Corralez, we conclude that Bell’s reference to statements
articulating his remorse is insufficient to establish an abuse of discretion. See id.
[14] As for Bell’s claim that he would have responded well to probation or a short
term of imprisonment, the record reveals that pursuant to the terms of Bell’s
plea agreement, “none” of his sentence was to be suspended. Appellee’s App.
Vol. II, p. 5. In addition, despite having previously received a short term of
incarceration in connection to his first conviction, Bell did not reform his
behavior. Further, when Bell first spoke to police, he was not initially forthright
about the circumstances surrounding the accident. We cannot say that the trial
court abused its discretion by failing to find Bell’s claim that he might have
responded affirmatively to probation or short-term imprisonment to be a
significant mitigating factor.
[15] The judgment of the trial court is affirmed.
Baker, J., and Kirsch, J., concur.
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