Opinion
24A-CR-1022
10-04-2024
Kevin E. Kearney, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Jerry T. Drook Marion, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Blackford Circuit Court The Honorable Brian W. Bade, Judge Trial Court Cause No. 05C01-2207-F1-247
Attorney for Appellant
Jerry T. Drook
Marion, Indiana
Attorneys for Appellee
Theodore E. Rokita
Indiana Attorney General
Daylon L. Welliver
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Kevin E. Kearney pled guilty to attempted voluntary manslaughter and was sentenced to twenty-five years, with ten years executed and fifteen years suspended to probation. On appeal, Kearney argues that his sentence is inappropriate.
[¶2] We affirm.
Facts & Procedural History
[¶3] On July 9, 2022, Kearney "flipped out" after his wife, Kristi, told him that she wanted a divorce. Appellant's Appendix Vol. II at 20. Shortly thereafter, Kearney produced a firearm and pulled the slide back, chambering a round. Kristi left the house and headed toward a nearby park where she thought she would be safe due to the presence of two men. Kearney followed Kristi. Once at the park, Kearney aimed the gun at Kristi's head and pulled the trigger, but the gun jammed. Kearney tried to clear the jam while still pointing the gun at Kristi's head and the two bystanders tried to intervene. A police officer arrived and observed a scuffle for control of the gun. Eventually, Kearney was subdued and taken into custody.
[¶4] On July 12, 2022, the State charged Kearney with Level 1 felony attempted murder, two counts of Level 5 felony intimidation, and two counts of Level 6 felony pointing a firearm. On August 21, 2023, the State amended the charging information to add a sixth count, Level 2 felony attempted voluntary manslaughter. That same day, Kearney pled guilty to attempted voluntary manslaughter, and the State agreed to dismiss all other counts. The plea agreement left sentencing open to the trial court but capped the executed portion at ten years. On January 11, 2024, the trial court accepted the plea agreement and sentenced Kearney to twenty-five years, with ten executed and fifteen suspended to probation. Kearney now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[¶5] In general, sentencing decisions are left to the sound discretion of the trial court, and we review the trial court's decision only for an abuse of discretion. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218.
[¶6] While Kearney claims that his sentence is inappropriate, the substance of his arguments challenges the finding and weight of aggravating and mitigating factors. Such claims are appropriately reviewed only for an abuse of discretion, not for inappropriateness under Ind. Appellate Rule 7(B). See id. As our Supreme Court has made clear, inappropriateness claims and abuse of discretion claims are different inquiries and are to be analyzed separately. Id. at 491. Moreover, review under Rule 7(B) requires a discussion of the nature of the defendant's offense and character. App. R. 7(B). Kearney does not discuss these criteria and has therefore waived appellate review under 7(B). See, e.g., Sanders v. State, 71 N.E.3d 839, 843-44 (Ind.Ct.App. 2017), trans. denied.
[¶7] As already noted, the substance of Kearney's claims is that the trial court abused its discretion in identifying and evaluating aggravating and mitigating factors. A trial court may abuse its discretion by: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id.
[¶8] Kearney argues that the trial court improperly considered his criminal history, which he characterizes as remote misdemeanor offenses, as an aggravator. However, Kearney, by counsel, acknowledged at the sentencing hearing that his criminal history was an aggravating factor. Furthermore, Kearney's criminal history, which spanned from 1996 through 2008, includes seven prior misdemeanor convictions for acts of battery, operating while intoxicated, and resisting law enforcement. Each of these offenses involved acts that could pose a threat of harm to others. In this respect, those offenses are similar in character to the nature of the current offense to which Kearney pled guilty. The trial court did not abuse its discretion in considering his criminal history as an aggravating circumstance.
[¶9] Kearney also argues that the trial court abused its discretion in not identifying and affording sufficient weight to his guilty plea as a mitigating factor. It is well settled that a guilty plea is not automatically a significant mitigating circumstance. Page v. State, 878 N.E.2d 404, 408 (Ind.Ct.App. 1007), trans. denied. That is, "a guilty plea may not rise to the level of significant mitigation where the evidence against the defendant is such that the decision to plead guilty is merely a pragmatic one." Brown v. State, 907 N.E.2d 591, 594 (Ind.Ct.App. 2009).
[¶10] Here, the trial court specifically addressed the fact that he pled guilty and acknowledged Kearney's request for mercy and addressed the fact that he pled guilty, explaining that it found "the very favorable setup" of the plea agreement to be a showing of leniency in this cause. Transcript at 31. To be sure, Kearney received a significant benefit from his plea agreement in that the State dropped numerous charges and the executed portion of the sentence was capped at the minimum sentence of ten years for a Level 2 felony. The trial court was not obligated to afford additional mitigating weight to Kearney's guilty plea. See Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999) (holding that a trial court did not abuse its discretion by not identifying defendant's guilty plea as a significant mitigating circumstance where defendant received substantial benefit by pleading guilty).
"A person who commits a Level 2 felony shall be imprisoned for a fixed term of between ten (10) and thirty (30) years, with the advisory sentence being seventeen and one-half (17 ½) years." Ind. Code § 35-50-2-4.5.
[¶11] Kearney also argues that the court should have identified and afforded mitigating weight to his expression of remorse. At sentencing, Kearney testified that he was "a fool, an idiot at the time" and that he was "sorry" for what he did. Transcript at 24. The court was not required to accept his statements as a full acceptance of responsibility. Indeed, here, the trial court commented on the severity of the offense, the lasting impact on the victim, and the fact that had the gun not misfired, the outcome could have been very different, thereby indicating that it did not accept Kearney's expression of remorse. We cannot say that the trial court abused its discretion in not giving mitigating weight to Kearney's statements. See Price v. State, 765 N.E.2d 1245, 1253 (Ind. 2002) (where defendant's statement of remorse fell short of accepting full responsibility, trial court did not abuse its discretion in not finding it to be a significant mitigating factor).
[¶12] Judgment affirmed.
Vaidik, J. and Crone, J., concur.