Kyle D. Akers, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] Kyle Akers appeals his sentence after he pleaded guilty to possession of methamphetamine, as a Level 4 felony,¹ and forgery, as a Level 6 felony,² and admitted to being a habitual offender.³ Akers raises one issue for our review, namely, whether his sentence is inappropriate in light of the nature of the offenses and his character. We affirm.

Facts and Procedural History

[2] On August 2, 2021, Akers found a wallet that contained a checkbook and a credit card. Akers then used the credit card to order food and make a purchase at a gas station. As a result, the State charged Akers with forgery, as a Level 6 felony; theft, as a Level 6 felony;⁴ and theft, as a Class A misdemeanor,⁵ in cause number 84D03-2108-F6-2721 (“F6-2721”). Then, on January 12, 2023, while the charges in F6-2721 were pending, officers conducted a traffic stop of Akers’ vehicle and found 15.55 grams of methamphetamine. The State charged Akers with dealing in methamphetamine, as a Level 2 felony;⁶ possession of methamphetamine, as a Level 4 felony; and driving while suspended, as a Class A misdemeanor;⁷ and alleged that he was a habitual offender in cause number 84D03-2301-F2-308 (“F2-308”). In addition, the State charged Akers in four other cause numbers with a total of seven charges: robbery, possession of methamphetamine, possession of a controlled substance, obstruction of justice, driving while suspended, and two counts of escape.

[3] On January 10, 2024, Akers and the State entered into a plea agreement to resolve all six cause numbers. Akers agreed to plead guilty to forgery, as a Level 6 felony, in F6-2721, and, in F2-308, he agreed to plead guilty to possession of methamphetamine, as a Level 4 felony, and to admit to being a habitual offender. In exchange, the State agreed to dismiss the remaining counts in both F6-2721 and F2-308 and the other four cause numbers in their entirety. The parties also agreed that Akers would receive an executed sentence of two years in F6-2721 and that his sentence in F2-308 would be a minimum of twenty years with at least fifteen years executed.

[4] At a hearing, Akers admitted to the offenses and to being a habitual offender. The court accepted the plea agreement, entered judgment of conviction accordingly, and dismissed the remaining counts in F6-2721 and F2-308 as well as the other four cause numbers. Following a sentencing hearing, the court identified as aggravating Akers’ “extensive” criminal history and that he had recently violated conditions of pretrial release. Appellant's App. Vol. 2 at 192. The court identified as mitigating that Akers had been diagnosed with bipolar disorder and PTSD; however, the court gave that factor “minimal weight.” Id. at 193. The court found that the aggravators outweighed the mitigator and sentenced Akers to two years in F6-2721. In F2-308, the court sentenced Akers to ten years for the Level 4 felony, enhanced by ten years for the habitual offender adjudication. The court then ordered the sentences to run consecutively, for a total aggregate term of twenty-two years. This appeal ensued.

Discussion and Decision

[5] Akers contends that his sentence is inappropriate in light of the nature of the offenses and his character. 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.” This Court has recently held that “[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has recently explained that:

The principal role of appellate review should be to attempt to leaven the outliers ․ but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[6] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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 or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[7] The sentencing range for a Level 4 felony is two years to twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. The sentencing range for Akers’ habitual offender adjudication is eight years to twenty years. I.C. § 35-50-2-8(i)(1). Thus, Akers faced a possible total sentence of thirty-two years in F2-308. The court sentenced him to ten years on the Level 4 felony, enhanced by ten years for his adjudication as a habitual offender, for a total sentence of twenty years. And the sentencing range for Akers’ Level 6 felony in F6-2721 is six months to two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). In that cause number, the parties agreed to an executed sentence of two years, and that is the sentence the court imposed. The court then ordered the two sentences to run consecutively, for an aggregate term of twenty-two years.

[8] On appeal, Akers contends that his sentence is inappropriate in light of the nature of the offenses because there “was nothing particularly egregious about” the offenses and because he possessed methamphetamine “likely to support his deep drug addiction[.]” Appellant's Br. at 8. He also asserts that his sentence is inappropriate in light of his character because he “grew up in an abusive home,” he “never obtained his high school diploma,” he “suffers from several serious medical conditions” and “mental illness[es],” and he “completed every class offered in the jail to achieve sobriety and to treat his mental illness.” Id. at 8-9.

[9] However, Akers has not met his burden on appeal to demonstrate that his sentence is inappropriate. With regard to the nature of the offenses, in F6-2721, Akers found a wallet with a checkbook and a credit card. Instead of attempting to find the owner or turning the wallet over to the police, Akers instead used it to order food and make a purchase. While there was nothing especially egregious about that offense, Akers has not shown any restraint or regard that would make his agreed-upon two-year sentence inappropriate. As for F2-308, Akers possessed 15.55 grams of methamphetamine, which is five grams over the minimum required to support a Level 4 felony conviction. See I.C. § 35-48-4-6.1(c)(1). Further, he committed that offense while his charges in F6-2721 were pending. We cannot say that his sentence is inappropriate in light of the nature of the offenses.

[10] As for his character, Akers has a criminal history that spans seven states and nine Indiana counties and includes thirteen prior misdemeanor offenses and nineteen prior felony convictions. Additionally, Akers has previously violated his placements on parole, probation, and home detention. And Akers continues to use illegal substances despite being in and out of treatment programs for almost a “quarter of a century,” which reflects poorly on his character. Tr. at 39. Akers has not presented compelling evidence portraying substantial virtuous traits or persistent examples of good character. See Stephenson, 29 N.E.3d at 122. We cannot say that Akers’ sentence is inappropriate in light of his character.

Conclusion

[11] Akers’ sentence is not inappropriate in light of the nature of the offenses and his character. We therefore affirm his sentence.

[12] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6.1(c).

2.   I.C. § 35-43-5-2(b).

3.   I.C. § 35-50-2-8.

4.   I.C. § 35-43-4-2(a)(1)(C)(i).

5.   I.C. § 35-43-4-2(a).

6.   I.C. § 35-48-4-1.1(e)(1).

7.   I.C. § 9-24-19-1.

Bailey, Judge.

Judges Bradford and Foley concur. Bradford, J., and Foley, J., concur.