Lawrence E. Kellems v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Aug 14 2015, 5:29 am
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
Charles L. Martin Gregory F. Zoeller
Martin & Martin, Attorneys at Law, Attorney General of Indiana
P.C.
Boonville, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lawrence E. Kellems, August 14, 2015
Appellant-Defendant, Court of Appeals Case No.
87A04-1411-CR-537
v. Appeal from the Warrick Superior
Court
State of Indiana, The Honorable Robert R.
Appellee-Plaintiff Aylsworth
Trial Court Cause No.
87D02-1401-FA-43
Bailey, Judge.
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Case Summary
[1] Lawrence E. Kellems (“Kellems”) appeals his aggregate forty-year sentence
imposed following his pleas of guilty to three counts of Child Molesting, 1 as
Class A felonies, and one count of Sexual Misconduct with a Minor, as a Class
C felony. 2 He presents the sole issue of whether the trial court abused its
sentencing discretion. We affirm.
Facts and Procedural History
[2] On January 29, 2014, the State of Indiana charged Kellems with fifteen
offenses, alleging that Kellems had committed sexual acts involving four of his
ten minor children. On September 4, 2014, Kellems pled guilty to four of the
fifteen counts; the remainder were dismissed. On November 16, 2014, the trial
court imposed a forty-year sentence for each of the Class A felonies and a four-
year sentence for the Class C felony. All sentences were to be served
concurrently, providing for an aggregate sentence of forty years. This appeal
ensued.
Discussion and Decision
1
Ind. Code § 35-42-4-3(a)(1). In all instances, we refer to the version of the statutes in effect at the time of
Kellems’s crimes.
2
I.C. § 35-42-4-9(b)(1).
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[3] Upon conviction of a Class A felony, Kellems faced a sentencing range of twenty
years to fifty years, with the advisory sentence being thirty years. See Ind. Code
§ 35-50-2-4. Upon conviction of a Class C felony, he faced a sentencing range of
two years to eight years, with the advisory sentence being four years. See I.C. §
35-50-2-6. In imposing the aggregate forty-year sentence, the trial court found as
aggravators: Kellems was in a position of trust as to his victims, and the “quality
and quantity” of the offenses. (Confidential App. at 8.) In mitigation, the trial
court found that Kellems had no criminal history and he had entered a plea of
guilty. Kellems now argues that the trial court abused its discretion by relying
upon improper aggravators and ignoring mitigating circumstances.
[4] “So long as the sentence is within the statutory range, it is subject to review
only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This
includes the finding of an aggravating circumstance and the omission to find a
proffered mitigating circumstance. Id. at 490-91. When imposing a sentence
for a felony, the trial court must enter “a sentencing statement that includes a
reasonably detailed recitation of its reasons for imposing a particular sentence.”
Id. at 491.
[5] The trial court’s reasons must be supported by the record and must not be
improper as a matter of law. Id. However, a trial court’s sentencing order may
no longer be challenged as reflecting an improper weighing of sentencing
factors. Id. A trial court abuses its discretion if its reasons and circumstances
for imposing a particular sentence are clearly against the logic and effect of the
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facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind.
2007).
[6] Kellems first challenges the finding of the aggravating circumstance that he was
in a position of care, custody, or control of his victims. He argues:
None of these three (3) victims 3 testified that the care, custody, or
control of the defendant over the victim was a cause for the
defendant to have an advantage over the victim and accordingly
facilitate his performance of the deviant sexual conduct over the
victim.
(Appellant’s Br. at 5.) We find the argument somewhat perplexing, in that
Kellems is admittedly the father of each of the minor victims and, together with
his then-wife, had custody of the minors. The position of trust aggravator is
applicable where, as here, a defendant has “more than a casual relationship
with the victim and has abused the trust resulting from that relationship.”
Rodriquez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007).
[7] Kellems next challenges the trial court’s reliance upon the “quality and
quantity” of the offenses as an aggravator. (Confidential App. at 8.) As
Kellems observes, this is not an enumerated statutory sentencing consideration
found in Indiana Code § 35-38-1-7.1. Nonetheless, he presents no argument
that the trial court is precluded from considering the particularized
3
Kellems includes only the victims of the Class A felonies.
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circumstances of the offenses. As to those circumstances, Kellems asserts that
there was no testimony – at the sentencing hearing or “at any other time” –
establishing the number of incidents or discussing their “quality.” (Appellant’s
Br. at 6.) The record on appeal includes no transcript of the guilty plea hearing,
and we do not speculate upon what evidence may have been presented or
omitted. Accordingly, Kellems presents no issue for our review in this regard.
[8] As for the allegedly omitted mitigating circumstances, an allegation that the
trial court failed to identify or find a mitigating factor requires the defendant to
establish that the mitigating evidence is not only supported by the record but
also that the mitigating evidence is significant. Anglemyer II, 875 N.E.2d at 220-
21. Kellems claims that the trial court should have recognized as mitigating
circumstances some of those enumerated in Indiana Code § 35-38-1-7.1: he
would likely respond affirmatively to probation or short-term imprisonment, his
character and attitudes indicate that he is unlikely to commit another crime,
imprisonment would result in undue hardship to his dependents, and the crimes
were a result of circumstances unlikely to reoccur.
[9] For the most part, Kellems did not advance these as mitigators at the sentencing
hearing. However, with regard to hardship to dependents, defense counsel
briefly mentioned that Kellems “has always had employment” and supported
his family with “legitimate income.” (Tr. at 16.) A trial court “is not required
to find that a defendant’s incarceration would result in undue hardship upon his
dependents.” Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005), trans.
denied. Indeed, “[m]any persons convicted of serious crimes have one or more
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children and, absent special circumstances, trial courts are not required to find
that imprisonment will result in an undue hardship.” Dowdell v. State, 720
N.E.2d 1146, 1154 (Ind. 1999).
Conclusion
[10] Kellems did not demonstrate that the trial court abused its sentencing discretion
in the finding of aggravating or mitigating circumstances.
[11] Affirmed.
Baker, J., and Mathias, J., concur.
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