KINDRED v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] De'Arieus Lawaun Kindred appeals his six-year aggregate sentence after pleading guilty but mentally ill to three counts of Level 5 felony battery by means of a deadly weapon. He challenges the appropriateness of his sentence. We affirm.

Facts and Procedural History

[2] As an initial matter, we address Kindred's objection to the State's use of facts in its appellate brief that were not included in the “Stipulated Factual Basis” used for Kindred's guilty plea. Appellant's App. Vol. II, p. 62 (Stipulated Factual Basis). Kindred argues that: (1) the State's use of facts not included in the Stipulated Factual Basis “is inappropriate because once the parties have entered into a stipulation and it has been accepted by the court, the parties are bound by that stipulation[;]” and (2) the State's use of facts from the probable cause affidavit is inappropriate because those facts have not been established as accurate, the allegations therein are “inadmissible hearsay” which should not be the basis for the nature of the offense, and “[t]he offense has already been defined by the contractual agreement between the parties as being their stipulation of facts.” Reply Br. p. 4. In effect, Kindred argues that when considering an Appellate Rule 7(B) appeal, our review is limited to those facts contained within the four corners of the plea agreement.

[3] Notwithstanding Kindred's argument, we will set forth and consider the facts of his offenses from the factual basis set out in his guilty plea hearing and from the testimony and exhibits introduced during his sentencing hearing. Because the Stipulated Factual Basis contains only a bare-bones recitation of the nature of the offenses, the State properly relies on the probable cause affidavit that was attached to Kindred's presentence investigation report (PSI) to provide further details surrounding the offenses at issue in this appeal. We note that the PSI incorporates the probable cause affidavit by specifically directing the reader to the probable cause affidavit for the information regarding the “Circumstances Attending [the] Commission of [the] Offense.” Appellant's App. Vol. II, p. 66.

[4] Kindred did not challenge the probable cause affidavit or its contents during his sentencing hearing with his counsel stating, “substantively[,] this is all accurate.” Tr. Vol. 2, p. 23. In fact, Kindred's counsel acknowledged “the Court has the benefit of having reviewed the probable cause affidavit.” Id. at 41-42. And counsel offered exhibits—photos of a forty-pound paver and shattered glass in the vehicle Kindred drove at the pertinent time—in mitigation to provide “that really critical part of context” because “[w]e have only the alleged victims’ stories really articulated in the probable cause affidavit.” Id. at 42.

[5] Our review of an inappropriate sentencing argument includes, by definition, a review of the nature and circumstances of the offense committed. See Ind. Appellate Rule 7(B) (providing that our Court may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender). As the Supreme Court stated in Bethea v. State,

[i]t is well within the purview of contract law, and consequentially, as mentioned above, the law as it relates to plea bargains, for the Defendant to bargain and the State to accept a plea bargain that forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken. However, if a plea bargain lacks such language, we hold it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them.

983 N.E.2d 1134, 1145 (Ind. 2013). Here, Kindred's plea agreement stated, “G. Attached hereto and incorporated herein as Exhibit ‘A’ is the Stipulated Factual Basis.” Appellant's App. Vol. II, p. 60 (Stipulated Plea And Agreement); p. 62 (Stipulated Factual Basis). The plea agreement does not limit the facts that the trial court may consider in sentencing. Thus, we turn now to the facts pertinent to the resolution of this case.

[6] Kindred and Nicole Denvit knew each other through an acquaintance. And in the summer of 2023, Denvit began purchasing marijuana vapes from him. Kindred was on parole at the time. Kindred began sending Denvit text messages that she took as “alarming and stalker-ish.” Id. at 81. Kindred sometimes called her and described to her what she was doing to demonstrate that he was watching her.

[7] On August 21, 2023, Denvit lived in a house in Merrillville with her boyfriend, Matthew Thompson, and Michael Coleman. At around 10:30 p.m. that night, Kindred arrived at Denvit's house and began arguing with Thompson before Kindred drove away. At around 2:30 a.m. the next morning, Denvit's aunt arrived at the house and spoke with her. While the two spoke, Coleman walked outside and saw Kindred down the street, sitting in a parked car. At 5:00 a.m., after Denvit's aunt had left, Kindred sent text messages to her, threatening to contact Child Protective Services to have her children removed.

[8] At around 5:45 a.m., Denvit, Thompson, and Coleman walked down the street to retrieve Denvit's car. They observed Kindred sitting in a car parked nearby. Kindred began yelling at the group from inside his car, and then drove his car directly toward them, forcing Denvit and Thompson to jump away from Kindred's car. Denvit avoided the car, but Kindred struck Thompson, causing him to bounce off the hood of the car. Kindred stopped his car close to the group. Denvit ran to her car, while Thompson and Coleman tried to open the driver's side door of Kindred's car.

[9] Denvit drove her car toward Kindred's car, exited her car, and approached Kindred's car. She and Thompson had entered her car when Kindred accelerated and rammed his car into her car multiple times. He backed up his car, creating space between the vehicles. Coleman walked between the two vehicles after which Kindred yelled, “I'll fucking kill you,” and accelerated towards Coleman and Denvit's car. Id. at 83. Kindred struck the car, pinning Coleman between the two vehicles. He then backed up and drove down the road a short distance before turning around and ramming Denvit's car again. Kindred backed up his car, and as he approached, Coleman picked up a large landscaping brick and threw it at Kindred's car. The brick struck the hood of the car, rolled up the windshield, and fell through the roof, landing inside the car. Denvit moved her car before Kindred could strike her car a third time. Instead, Kindred's car struck a landscaping area in someone's yard and became stuck. Kindred then exited his car, picked up a metal rake, and attacked Coleman with it. They struggled before Kindred ran away.

[10] Police arrived at Denvit's house and observed that her car had been damaged. Coleman was transported to a nearby hospital for treatment. The officers towed Kindred's car and searched it. During the search, officers found Kindred's identification and a glass pipe consistent with one that is used to smoke crack cocaine. The State charged Kindred with three counts of attempted murder, three counts of stalking, four counts of battery by means of a deadly weapon, and three counts of criminal recklessness in Cause Number 45G03-2308-F1-30, and the trial court issued a warrant for Kindred's arrest.

[11] On December 19, at around 12:59 p.m., a Lake County Sheriff's Department officer observed Kindred driving a car on a city street. After the officer saw Kindred commit two traffic infractions, the officer initiated a traffic stop. Kindred initially stopped his car, but fled after the officer approached on foot. Kindred sped through traffic, ignoring traffic signals, and crossed into oncoming lanes as the officer followed him. That officer had to abandon the pursuit when his car slowed due to a flattened rear tire, which flew off the car, causing the officer to lose control and to crash his car into a median. However, two other officers joined in the pursuit and continued to follow Kindred. He wove around the first set of stop sticks, but Kindred could not avoid a second set of stop sticks, which flattened the tires of his car. He continued driving until one of the wheels of his car flew off, he lost control of his car, and it crashed into a ditch. He ran from his car and through a wooded area before jumping into a large body of water. Ultimately, he chose to surrender and swam to the shoreline. He was charged with Level 6 felony resisting law enforcement and Class A misdemeanor resisting law enforcement in Cause Number 45G03-2312-F6-2839.

[12] While Kindred's criminal cases were pending, his competency came into question, and he received treatment to have his competency restored. While he received treatment, he was evaluated by a psychiatrist. Kindred disclosed that he heard voices that come and go and warn him if someone wants to harm him. He also disclosed that he used illegal substances to “escape life.” Id. at 54. He stated that he used fentanyl and methamphetamine in prison to “help pass the time of his incarceration.” Id. at 53. While Kindred was diagnosed with a bipolar mood disorder, the psychiatrist found that there was little evidence of a disorder involving psychotic symptoms, unless those symptoms occurred in the context of substance abuse. He was deemed competent to stand trial on July 31, 2024.

[13] In December 2024, Kindred reached a plea agreement with the State. Kindred agreed to plead guilty but mentally ill to three counts of Level 5 felony battery by means of a deadly weapon for using his car to strike Denvit, Thompson, and Coleman. In exchange, the State agreed to dismiss all remaining counts in Cause Number 45G03-2308-F1-30 (three counts of attempted murder, three counts of stalking, one count of battery by means of a deadly weapon, and three counts of criminal recklessness) and all of the charges in Cause Number 45G03-2312-F6-2839 (two counts of resisting law enforcement). The parties further agreed that Kindred's battery sentences would be served concurrently. Within these parameters, the plea agreement left sentencing to the trial court's discretion.

[14] The PSI report revealed that Kindred admitted he was under the influence of crack cocaine when he committed his crimes and that he had abused a variety of drugs since he was a teenager. He was on parole or probation when he committed the new crimes. He had misdemeanor convictions for assault and battery and for possession of marijuana. He had felony convictions for possession of methamphetamine, attempted home invasion, two separate felony convictions for possession of a controlled substance in an amount greater than twenty-five grams, neglect of a dependent, and attempted theft.

[15] At the sentencing hearing, Kindred's counsel argued that his guilty plea and acceptance of responsibility were mitigating circumstances. His counsel also argued that Kindred's acts were in self-defense, based on the paver that was thrown at and into his car but did not give rise to the affirmative defense of self-defense at trial. Counsel also offered Kindred's mental health as a mitigating circumstance, arguing that his past drug use was an attempt at self-medication.

[16] The trial court found Kindred's guilty plea to be a mitigating circumstance, but noted that he received a large benefit in the plea agreement. The trial court found Kindred's criminal history to be an aggravating circumstance. And Kindred had previously violated the conditions of his probation and parole, which was an aggravating circumstance. In sum, the aggravating circumstances outweighed the mitigating circumstances. The trial court imposed six-year sentences for each of his convictions and ordered them served concurrently. However, the court included in its order that it would consider a sentence modification after three years if Kindred successfully participated in his mental health treatment while in prison. Kindred now appeals.

Discussion and Decision

[17] Kindred argues his sentence is inappropriate given the nature of the offenses and his character. Indiana Appellate Rule 7(B) empowers us to revise sentences if, after due consideration, we find the trial court's decision inappropriate in light of the nature of the offense and the character of the offender. C.A. v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. Trial courts are authorized to tailor an appropriate sentence to the circumstances of the particular case, and the resulting judgment receives “ ‘considerable deference.’ ” Prince v. State, 148 N.E.3d 1171, 1173 (Ind. Ct. App. 2020) (quoting Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied). This deference prevails unless “ ‘overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.’ ” Borroel v. State, 241 N.E.3d 8, 17 (Ind. Ct. App. 2024) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)), trans. denied. However, the appellant need not show that both of these factors independently warrant revision; rather, they are separate inquiries to be balanced. Turkette v. State, 151 N.E.3d 782, 786 (Ind. Ct. App. 2020), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Prince, 148 N.E.3d at 1173.

[18] The advisory sentence is the starting point selected by the legislature as an appropriate sentence for the crime. Borroel, 241 N.E.3d at 18. Kindred pleaded guilty to three counts of Level 5 felony battery. A person who commits a Level 5 felony shall be imprisoned for a fixed term of between one and six years, with the advisory sentence being three years. Ind. Code § 35-50-2-6(b) (2014). The court sentenced Kindred to six years on each count to be served concurrently.

[19] The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The deference given to a trial court's exercise of discretion in sentencing “should prevail 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)[.]” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The record supports the trial court's decision to impose the maximum sentence on each count given the nature of the offenses and the parameters of the plea agreement. Kindred agreed to plead guilty to three counts of Level 5 felony in exchange for the dismissal of a host of criminal charges and concurrent sentencing. With multiple victims, Kindred faced a maximum possible sentence of eighteen years. See Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009) (presence of single aggravating circumstance such as multiple victims justifies consecutive sentencing).

[20] Furthermore, Kindred has not shown restraint in the circumstances surrounding the offenses to which he pleaded guilty. His behavior on the evening and early morning hours in question escalated. First, he texted Denvit, threatening to involve authorities and cause her to risk losing the care of her children. Next, he waited outside Denvit's house and then repeatedly drove his vehicle directly at Denvit, Coleman, and Thompson. After his car became lodged in a neighbor's landscaping, Kindred exited the vehicle, grabbed a metal rake, and attacked Coleman. Kindred then evaded arrest for those offenses, and when officers subsequently located him, he led them on a chase through oncoming traffic. We cannot say that the nature of the offenses warrants a downward revision.

[21] The “character of the offender” portion of the Rule 7(B) standard refers to general sentencing considerations and relevant aggravating and mitigating factors, Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003), trans. denied, and permits a broader consideration of the defendant's character, Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “A defendant's life and conduct are illustrative of his or her character.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied.

[22] In examining a defendant's character, one relevant factor is his or her criminal history, the significance of which “varies based on the gravity, nature, and number of prior offenses in relation to the current offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Kindred has a considerable criminal history, including multiple convictions and multiple probation violations. And he committed the battery offenses while he was on parole. Furthermore, Kindred admitted that he has abused illegal substances for years, including while he was incarcerated. Kindred has failed to persuade us that his character is comprised of substantial virtuous traits or persistent examples of good character. See Stephenson, 29 N.E.3d at 122.

[23] In light of the significant benefit Kindred received from his plea agreement, and in consideration of the nature of his offenses and his character, Kindred has not persuaded us that his sentence should be revised. Therefore, we affirm the trial court's judgment.

[24] Affirmed.

Najam, Senior Judge.

Felix, J., and Scheele, J., concur.