Curtis D. Keplinger v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 17 2015, 8:37 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, LLP Attorney General of Indiana
Huntington, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Curtis D. Keplinger, July 17, 2015
Appellant-Defendant, Court of Appeals Cause No.
35A05-1412-CR-572
v.
Appeal from the Huntington Circuit
State of Indiana, Court
The Honorable Thomas M. Hakes,
Appellee-Plaintiff, Judge
Cause No. 35C01-1406-FB-178
Robb, Judge.
Case Summary and Issue
[1] Following a jury trial, Curtis Keplinger was convicted of attempted robbery, a
Class B felony, and found to be an habitual offender. He raises one issue on
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appeal: whether his thirty-five year sentence is inappropriate in light of the
nature of his offense and his character. Concluding Keplinger’s sentence is not
inappropriate, we affirm.
Facts and Procedural History
[2] Keplinger began dating Chasity Griffith in June of 2013. In July of that year,
Griffith suffered a ruptured gallbladder and was hospitalized for three months.
When she was released from the hospital, she began living with Keplinger.
Griffith was prescribed certain pain medications, including fentanyl and
Percocet, which Keplinger regularly asked her to give to him for his own use.
[3] On June 29, 2014, Keplinger asked Griffith for some of her medication, but she
refused. The two started to argue, and Keplinger attempted to snatch Griffith’s
purse away from her. Keplinger chased Griffith around the living room,
grabbed her throat from behind, and placed his hand over her nose and mouth,
preventing her from breathing. Griffith fled from the house and called her
father, who took Griffith to the police station to report the incident.
[4] The State charged Keplinger with Count 1, robbery, a Class B felony; Count 2,
strangulation, a Class D felony; and Count 3, attempted robbery, a Class B
felony. The State also alleged that Keplinger was an habitual offender. A jury
trial was held over the course of three days in October 2014. Keplinger was
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found guilty of Count 3,1 and he admitted to being an habitual offender. The
trial court imposed a fifteen-year sentence on Count 3 and a twenty-year
enhancement for Keplinger’s habitual offender adjudication, resulting in an
aggregate executed sentence of thirty-five years imprisonment. This appeal
followed.
Discussion and Decision
I. Standard of Review
[5] Keplinger contends that his thirty-five year sentence is inappropriate. Indiana
Appellate Rule 7(B) provides appellate courts with the authority to revise a
defendant’s sentence 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.” It is the defendant’s burden to persuade the
reviewing court that the sentence is inappropriate. Conley v. State, 972 N.E.2d
864, 876 (Ind. 2012).
II. Keplinger’s Sentence
[6] “When considering the nature of the offense, the advisory sentence is the
starting point to determine the appropriateness of a sentence.” Holloway v. State,
950 N.E.2d 803, 806 (Ind. Ct. App. 2011). At the time of Keplinger’s offense, a
Class B felony carried an advisory sentence of ten years, with a range of six to
1
Keplinger was acquitted of Count 1, and a mistrial was declared on Count 2.
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twenty years. Ind. Code § 35-50-2-5(a). In addition, the habitual offender
statute provided that “[t]he court shall sentence a person found to be a habitual
offender to an additional fixed term that is not less than the advisory sentence
for the underlying offense nor more than three (3) times the advisory sentence
for the underlying offense.” Ind. Code § 35-50-2-8(h) (effective through June
30, 2014). Thus, Keplinger’s habitual offender enhancement required him to
receive an additional term of at least ten and as many as thirty years. Keplinger
received fifteen years for his Class B felony and an additional twenty years for
his habitual offender enhancement.
[7] We find the nature of Keplinger’s offense to be slightly more egregious than an
ordinary attempted robbery. Keplinger not only put Griffith in fear for her
safety but also attempted to take her pain medication by force, grabbing her by
the throat and covering her nose and mouth to prevent her from breathing.
Additionally, the victim was in a weakened condition due to her illness, and
Keplinger attempted to take advantage of her illness and satisfy his own base
urges without regard for her need for her prescribed medication.
[8] As to Keplinger’s character, the trial court referenced his extensive criminal
history, his violation of a no-contact order during the proceedings, and his
attempts to dissuade Griffith from testifying against him at trial. In addition to
his juvenile history, Keplinger’s adult criminal history consists of five prior
felony convictions—including battery, burglary, and theft—and several
misdemeanor convictions. The nature of Keplinger’s past offenses and their
similarity to his most recent crime reflects unfavorably on his character. See
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Bryant v. State, 841 N.E.2d 1154, 1156 (Ind. 2006) (stating the weight of an
individual’s criminal history is “measured by the number of prior convictions
and their gravity, by their proximity or distance from the present offense, and
by any similarity or dissimilarity to the present offense that might reflect on a
defendant’s culpability.”).
[9] Keplinger points to the fact that he took care of Griffith when she was ill.
Although that may reflect positively on his character, in light of his criminal
history and demonstrated disrespect for the justice system, it is not enough to
persuade us that his sentence is inappropriate.
Conclusion
[10] Concluding Keplinger’s thirty-five year sentence is not inappropriate in light of
the nature of his offense and his character, we affirm.
[11] Affirmed.
May, J., and Mathias, J., concur.
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