Paul Michael Kage, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 23 2017, 8:32 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
Adam C. Squiller Curtis T. Hill, Jr.
Squiller & Hamilton, LLP Attorney General of Indiana
Auburn, Indiana James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Michael Kage, Jr., June 23, 2017
Appellant-Defendant, Court of Appeals Case No.
76A04-1611-CR-2616
v. Appeal from the Steuben Superior
Court
State of Indiana, The Honorable William C. Fee,
Appellee-Plaintiff. Judge
Trial Court Cause No.
76D01-1509-F5-750
Mathias, Judge.
[1] Paul Michael Kage, Jr., ("Kage") was convicted in Steuben Superior Court of
Level 5 felony operating a motor vehicle after forfeiture of license for life, and
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he was ordered to serve six years executed in the Department of Correction.
Kage was also adjudicated a habitual offender and was ordered to serve an
additional two years executed. Kage appeals and argues that his aggregate
eight-year sentence is inappropriate in light of the nature of his offense and his
character.
[2] We affirm.
Facts and Procedural History
[3] On September 27, 2015, Indiana State Police Trooper Chris Kinsey (“Trooper
Kinsey”) observed Kage leave a gas station in a vehicle. Trooper Kinsey knew
Kage from past law enforcement contact and confirmed with a license check by
Steuben County Communications that Kage was a habitual traffic violator.
Trooper Kinsey and Patrolman Matt Kling of the Angola Police Department
subsequently stopped and arrested Kage without incident.
[4] Kage was charged with Level 5 felony operating a motor vehicle after forfeiture
of license for life. He was also charged as a habitual offender based on more
than two prior, unrelated felonies. In September 2016, a jury trial was held and
Kage was convicted of both charges.
[5] Kage's sentencing hearing was held on October 17, 2016. The trial court
observed that Kage’s decision to operate his vehicle despite knowing that he
had forfeited his license was not mitigated by any emergency circumstance. The
trial court considered Kage’s criminal history as an aggravating circumstance.
In addition to the four prior felony convictions used in the state’s habitual
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offender allegation against him, Kage’s criminal history includes numerous
prior felony and misdemeanor convictions. These include convictions for drug
offenses, battery, invasion of privacy, operating a vehicle while intoxicated, and
other driving-related offenses. Kage’s criminal history also includes four
probation revocations. The trial court found no mitigating factors. The trial
court ordered Kage to serve an aggregate sentence of eight years executed in the
Department of Correction. Kage now appeals.
Discussion and Decision
[6] Kage argues that his aggregate eight-year executed sentence is inappropriate in
light of the nature of the offense and the character of the offender. Indiana
Appellate Rule 7(B) provides that “[t]he 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 conducting our review, “[w]e do not look
to determine if the sentence was appropriate; instead, we look to make sure 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 v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). “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 of persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Kage
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bears the burden to establish that his sentence is inappropriate. Rutherford v.
State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
[7] When considering the nature of the offense, we observe that "the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed." Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Courts may
consider the advisory sentence for a crime when imposing a sentence, but courts
are not required to use an advisory sentence. Ind. Code § 35-50-2-1.3(a-b). The
advisory sentence for a Level 5 felony is three years, with a sentencing range of
one to six years. Ind. Code § 35-50-2-6(b). Kage's six-year sentence is the
maximum available in the Level 5 felony sentencing range. Courts may
sentence habitual offenders convicted of a Level 5 felony to an additional fixed
term between two and six years. Ind. Code § 35-50-2-8(i)(2). Kage's two-year
habitual offender enhancement results in an aggregate sentence of eight years.
When evaluating whether a sentence is inappropriate, “appellate review should
focus on the forest – the aggregate sentence – rather than the trees – consecutive
or concurrent… or length of the sentence on any individual count.” Cardwell,
895 N.E.2d at 1225.
[8] The nature of Kage's offense is closely related to the nature of Kage's character.
Excluding his juvenile criminal history, Kage has exhibited “constant criminal
activity” since 1997. Appellant’s App. p. 27. The trial court agreed with the
presentence investigation report conclusion; Kage's criminal history is
“massive.” Tr. p. 105. His criminal history includes the following offenses
related to his current offense: two convictions for operating vehicle while
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intoxicated, one conviction for driving while suspended, one conviction for
driving while license not valid, one conviction for habitual traffic offender, and
one conviction for operating a motor vehicle after a lifetime suspension. Past
offenses unrelated to the present offense include convictions relating to
violence, invasion of privacy, drugs, and alcohol. The trial court characterized
Kage’s criminal history as “on point” with the nature of his present crime. Tr.
p. 105.
[9] The trial court found that although Kage cooperated during his arrest and
respected the court proceedings, his behavior did little to mitigate “a criminal
history that is this long.” Tr. p. 106. In the court's view, Kage's pattern of
recidivism is “reflective of [his] mindset” and “disrespectful of the rule of law.”
Tr. p. 105-6. Considering the length of Kage's criminal history and its relation
to his most recent convictions, we agree with the trial court that the aggregate
eight-year sentence is “earned and appropriate.” Tr. p. 106. We conclude that
Kage has not met his burden of persuading us that his eight-year sentence is
inappropriate in light of the nature of the offense and the character of the
offender. See Anglemyer, 896 N.E.2d at 494.
[10] Affirmed.
Kirsch, J., and Altice, J., concur.
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