Michael J. Kalinowski v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 02 2020, 8:26 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
Tyler D. Helmond Samuel J. Dayton
Voyles Vaiana Lukemeyer Deputy Attorney General
Baldwin & Webb Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael J. Kalinowski, November 2, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1163
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
82C01-2002-F6-902
Weissmann, Judge.
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[1] Michael Kalinowski appeals the sentence imposed by the trial court after
Kalinowski pleaded guilty to two counts of Level 6 felony intimidation and
admitted to being an habitual offender. Kalinowski argues that the sentence is
inappropriate in light of the nature of the offenses and his character. Finding
the sentence not inappropriate, we affirm.
Facts
[2] On February 3, 2020, a man later identified as Kalinowski approached a group
of children riding their bicycles. He told the children that he was “gonna cut
[their] throats” and shoot them, making “hand gestures of cutting their throats
and point[ing] a gun at them.” Appellant’s App. Vol II p. 24. He also told
them, “ya’ll f*cked up, I’m coming back” and “I’ll be back.” Id. The children’s
parents called law enforcement to report the incident, and officers located and
arrested Kalinowski. While in a holding cell, Kalinowski yelled and made
threatening statements to the officers, saying he knew chefs who would put
poison in the officers’ food and “I’ll shoot ya’ll asses.” Id.
[3] On February 6, 2020, the State charged Kalinowski with four counts of Level 6
felony intimidation and alleged that Kalinowski was an habitual offender. On
April 1, 2020, Kalinowski pleaded guilty to two counts of intimidation and
admitted to being an habitual offender in exchange for the dismissal of the
remaining two counts of intimidation.
[4] On June 3, 2020, the trial court sentenced Kalinowski to concurrent terms of
one and one-half years for each intimidation conviction and imposed an
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enhancement of three years for the habitual offender status, for an aggregate
sentence of four and one-half years. The trial court recommended substance
abuse and mental health treatment for Kalinowski while he is incarcerated.
Kalinowski now appeals.
Discussion and Decision
[5] Kalinowski argues that the sentence imposed by the trial court is inappropriate
in light of the nature of the offenses and his character pursuant to Indiana
Appellate Rule 7(B). We must “conduct [this] 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’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292
(Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))
(internal citations omitted).
[6] Kalinowski was convicted of two Level 6 felonies, for which he faced a
sentence of six months to two and one-half years, with an advisory term of one
year. Ind. Code § 35-50-2-7. The trial court imposed concurrent terms of one
and one-half years. For being an habitual offender, Kalinowski faced a
sentence enhancement of two to six years imprisonment. I.C. § 35-50-2-8. The
trial court imposed a three-year enhancement for the habitual offender status,
resulting in an aggregate term of four and one-half years imprisonment.
[7] With respect to the nature of the offenses, Kalinowski badly frightened a group
of children. He threatened to cut their throats and shoot them, accompanying
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the threats with hand motions and warning the children that he would be back.
After his arrest, he threatened police officers that he would have their food
poisoned and shoot them. While the nature of these offenses may not be the
worst of the worst, the sentence imposed by the trial court was significantly less
than the maximum term Kalinowski faced.
[8] As to Kalinowski’s character, he has an extensive and escalating criminal
history. From 2001 through 2003, he was convicted of eight misdemeanors. In
2004, he was convicted of resisting law enforcement—his first felony
conviction—as well as multiple misdemeanors. He was sentenced to probation,
which was later revoked. In 2005, he was convicted of two misdemeanors and
Class C felony robbery and received a four-year sentence. In 2010, he was
convicted of two misdemeanors. He received a suspended sentence for one of
those convictions, but it was revoked within weeks once he began serving it. In
2011, he was convicted of Class C felony battery by means of a deadly weapon,
Class C felony robbery, Class D felony intimidation, and Class D felony
criminal mischief. He received an aggregate executed sentence of eight and
one-half years imprisonment. In 2017, he received a one-year sentence for
Class A misdemeanor unlawful possession of a syringe. In 2018, he was
convicted of Class B misdemeanor criminal mischief and charged with two
counts of Level 6 felony trespass that were later dismissed. In 2019, Kalinowski
was convicted of Level 6 felony residential entry, Level 6 felony criminal
trespass, and Class B misdemeanor criminal mischief.
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[9] When looking over the entirety of Kalinowski’s criminal history, the only
substantial gaps correspond with his periods of incarceration. In other words,
when not incarcerated, Kalinowski continues to engage in escalating criminal
activity. He has been afforded probation, suspended sentences, and lenient
sentences, but has not taken advantage of those opportunities. The offender
risk assessment test indicates that he is “a Very High risk to re-offend.”
Appellant’s App. Vol. II p. 47; see also Kayser v. State, 131 N.E.3d 717, 722 (Ind.
Ct. App. 2019) (observing that the risk assessment test results may be used to
determine the way a sentence is to be served).
[10] Kalinowski has been an illegal drug user throughout his adult life. Specifically,
he has been an active heroin and methamphetamine user since he was eighteen
years old. By the time of his arrest in this case, he was using one gram of
heroin and three and one-half to seven grams of methamphetamine each day.
[11] Kalinowski focuses his inappropriateness argument on his mental health. He
does, indeed, appear to have multiple untreated mental health conditions,
including bipolar disorder and schizophrenia. Under certain circumstances, it
may be appropriate to revise a sentence downward pursuant to Rule 7(B) if the
defendant has untreated mental health issues. See, e.g., Mullins v. State, 148
N.E.3d 986 (Ind. 2020). Our Supreme Court has noted, however, that there is a
“need for a high level of discernment when assessing a claim that mental illness
warrants mitigating weight.” Covington v. State, 842 N.E.2d 345, 349 (Ind.
2006). “Factors to consider in weighing a mental health issue include the
extent of the inability to control the behavior, the overall limit on function, the
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duration of the illness, and the nexus between the illness and the crime.”
Marlett v. State, 878 N.E.2d 860, 866 (Ind. Ct. App. 2007).
[12] There is limited evidence in the record on Kalinowski’s mental health. While
we know what his diagnoses are and that he has suffered from these conditions
for much of his life, there is no evidence related to the remaining factors listed
in Marlett. In other words, we cannot discern, based on the evidence in the
record, the extent to which Kalinowski is unable to control his behavior, the
overall limits on his functioning, or the nexus between the conditions and the
crimes. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (observing that
the burden is on the defendant to show that his sentence is inappropriate).
[13] Kalinowski directs our attention to Mullins, in which our Supreme Court
revised a sentence from 24.5 to 18 years based on the defendant’s untreated
mental health issues. In that case, the defendant began using illegal drugs at the
age of fourteen when a relative forcibly injected her with heroin, was physically
and sexually abused beginning at a very young age and continuing into
adulthood, and her limited criminal history was non-violent. 148 N.E.3d at
987. Here, in contrast, there is no indication that Kalinowski’s introduction to
substance abuse was involuntary or that he has a history of being abused.
Moreover, his criminal history includes several convictions involving violence,
including robbery, battery, and fighting-related disorderly conduct. We also
find the length and escalating nature of his criminal history to be of particular
import—a fact that was absent in Mullins. Therefore, we do not find that
Mullins requires a revision of Kalinowski’s sentence.
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[14] We acknowledge that Kalinowski suffers from untreated mental health
disorders. But the trial court took that into consideration in imposing the
sentence, finding his mental health to be a mitigating circumstance. In fact, the
trial court imposed a sentence below the five-year term recommended by the
probation department. Appellant’s App. Vol. II p. 47. Furthermore, the trial
court explicitly recommended that Kalinowski receive both mental health and
substance abuse treatment while incarcerated.
[15] In sum, we find that the aggregate four-and-one-half-year sentence imposed by
the trial court is not inappropriate in light of the nature of the offenses and
Kalinowski’s character.
[16] The judgment of the trial court is affirmed.
Bailey, J., and Vaidik, J., concur.
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