Kevin L. Thomas, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Kevin L. Thomas pled guilty to Level 4 felony possession of cocaine, Level 5 felony carrying a handgun without a license, and Level 5 felony auto theft and was sentenced to 13 years. He now appeals, arguing the trial court erred in identifying two aggravators. We affirm.

Facts and Procedural History

[2] In December 2021, the State charged Thomas with Level 3 felony possession of cocaine, Level 4 felony possession of cocaine, Level 5 felony carrying a handgun without a license, two counts of Level 6 felony possession of a controlled substance, and Class B misdemeanor possession of marijuana in Cause No. 45G04-2112-F3-208. In August 2023, the State charged Thomas with Level 5 felony auto theft in Cause No. 45G04-2308-F5-402.

[3] In October 2024, Thomas entered into a plea agreement that covered F3-208, F5-402 and four other pending cases. In F3-208, Thomas agreed to plead guilty to Level 4 felony possession of cocaine and Level 5 felony carrying a handgun without a license. The State agreed to dismiss the four remaining charges and that the two sentences would be served concurrently. In F5-402, Thomas agreed to plead guilty to Level 5 felony auto theft, and the State agreed that Thomas would receive a one-year prison sentence to be served consecutive to the sentence in F3-208. The State also agreed to dismiss four other pending cases against Thomas.

[4] At the sentencing hearing, the trial court found nine aggravators: (1) the nature and circumstances of the crimes as outlined in the stipulated factual basis, which the court found to be significant; (2) Thomas has failed to appear in court over 30 times; (3) he has had 46 contacts with the criminal-justice system, “many of which were violent”; (4) he has 9 felony and 10 misdemeanor convictions; (5) he has been on probation 11 times, with 8 violations; (6) he has had multiple incarcerations in prison and jail that have not “deterred [him] from committing other crimes”; (7) he showed “irresponsible” behavior in starting a family while facing numerous cases; (8) a mitigated sentence would depreciate the seriousness of the offenses; and (9) he is in need of correctional and rehabilitative treatment that can best be provided by his commitment to a penal facility. Appellant's App. Vol. II p. 138.

[5] The trial court found two mitigators: (1) Thomas pled guilty, although the court gave that “little weight” since he had four charges in F3-208 as well as four cause numbers “in their entirety” dismissed, and (2) his incarceration would cause undue hardship to his dependents, although the court gave this “little to no weight” because his fiancée works full-time and he has had 6 pending cases over the past 7 years. Tr. p. 53; Appellant's App. Vol. II p. 138. Defense counsel argued for a third mitigator, that is, that Thomas was unlikely to reoffend. But the court essentially rejected this mitigator, finding that it had “no mitigating weight” given Thomas's history of criminal activity. Appellant's App. Vol. II p. 138. Noting that Thomas was a “career criminal” who fit in the category of “the worst of the worst,” the court found that the aggravators outweighed the mitigators. Tr. p. 56. For F3-208, the court sentenced Thomas to 12 years for Level 4 felony possession of cocaine and 6 years for Level 5 felony carrying a handgun without a license, to be served concurrently. For F5-402, the court sentenced Thomas to one year, to be served consecutively to the 12-year sentence in F3-208, resulting in a total sentence of 13 years. The court ordered “the last two (2) years of his sentence” to be served on community corrections. Appellant's App. Vol. II p. 131.

[6] Thomas now appeals.

Discussion and Decision

[7] Thomas contends that the trial court erred in finding two aggravators: (1) the nature and circumstances of the offenses and (2) his decision to start a family while criminal charges were pending. Our trial courts enjoy broad discretion in identifying aggravators, and we will reverse only for an abuse of that discretion. Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013). However, even if we find an abuse of discretion, “we need not remand for resentencing if we can say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Vega v. State, 119 N.E.3d 193, 203 (Ind. Ct. App. 2019) (quotation omitted).

[8] Here, even assuming the trial court erred in finding as aggravators the nature and circumstances of the offenses and Thomas's decision to start a family while criminal charges were pending, we can say with confidence that the court would have imposed the same sentence given the seven other aggravators that Thomas does not challenge on appeal. Thomas has an extensive criminal history, including 46 contacts with the criminal-justice system, 9 felony convictions, and 10 misdemeanor convictions. He has been on probation 11 times, with 8 violations, and he has over 30 failures to appear in court. Moreover, Thomas's prior attempts at rehabilitation—including jail, prison, and community supervision—have not deterred him from committing more crimes. Given these seven unchallenged aggravators and the fact that the trial court gave little to no weight to the mitigators, we have no doubt the trial court would have imposed the same sentence even if it hadn't considered the two aggravators. Accordingly, we affirm Thomas's sentence.

[9] Affirmed.

Vaidik, Judge.

Judges Tavitas and Felix concur. Tavitas, J., and Felix, J., concur.