KELLY v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Linda Kelly appeals her sentence after she pled guilty to auto theft and possession of methamphetamine. She contends that the trial court “failed to recognize” her “lengthy record of self-employment” as a mitigating factor. Appellant's Brief at 7. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] After a vehicle bearing a license plate registered to Kelly left the scene of a car crash, a sheriff's deputy went to Kelly's home to investigate. The deputy found a truck in Kelly's driveway that matched the description of the vehicle involved in the crash. The license plate on the truck was registered to Kelly but was for another vehicle. After learning the truck had been reported stolen, the deputy attempted to arrest Kelly. Kelly refused the deputy's repeated instructions to place her hands behind her back, but after a brief physical struggle the deputy was able to pin Kelly to the ground, put her in handcuffs, and place her under arrest. A few days later, while executing a search warrant at Kelly's home, law enforcement found, among other things, prescription medication, methamphetamine, and drug paraphernalia.

[3] The State charged Kelly with auto theft, a Level 6 felony;¹ resisting law enforcement, a Class A misdemeanor;² possession of methamphetamine, as a Level 5 felony;³ possession of a controlled substance, as a Level 6 felony,⁴ and possession of paraphernalia, as a Class C misdemeanor.⁵ Kelly entered into a plea agreement under which she pled guilty to Level 5 felony possession of methamphetamine and Level 6 felony auto theft, and the State agreed to dismiss the remaining charges. The parties agreed that sentencing would “be at the [c]ourt's discretion.” Appellant's Appendix Vol. 2 at 47.

[4] The trial court approved the plea agreement, entered judgments of conviction for possession of methamphetamine and auto theft, and dismissed the remaining charges. At the sentencing hearing, Kelly asked for the court to “give [ ] a huge amount of weight” to the fact that she had a long record of successfully running a landscaping business, which she argued showed “that she's actually ․ [been] a very responsible person in society.” Transcript at 115. However, the court reasoned that it couldn't “ignore the history that [Kelly brought] to the [c]ourt[,]” which included “a significant history of delinquent and criminal behavior[.]” Id. at 119. Kelly's criminal history included eight misdemeanor and six felony convictions, the most recent of which were in 2013 for two counts of dealing methamphetamine. The court found that Kelly's prior criminal acts, which included repeated violations of the terms of probation and community corrections, were “significant aggravators[.]” Id.

[5] As mitigating factors, the trial court noted that Kelly had “led [a] fairly law[-]abiding life” since 2019 after completing her sentence on the 2013 convictions. Id. The court also noted that Kelly had pled guilty, but it appears to have given it little mitigating weight because she had “not entirely accepted responsibility” for her actions and “received the benefit of the State agreeing not to file charges related to a separate investigation.” Appellant's App. Vol. 2 at 122. Finally, the court determined that Kelly was “likely to respond affirmatively to probation or short-term imprisonment” and was “willing to pay monetary restitution.” Id.

[6] Ultimately, the trial court sentenced Kelly to an aggregate sentence of four years, with one year executed in the Department of Correction followed by three years of probation. Kelly now appeals.

Discussion and Decision

[7] Sentencing decisions are within the sound discretion of the trial court and are subject to appellate review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion if its “decision is ‘clearly against the logic and effect of the facts and circumstances before the court[.]’ ” Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).

[8] The sole argument raised by Kelly on appeal is that the trial court abused its discretion by “fail[ing] to recognize” her “lengthy record of self-employment” as a mitigating factor. Appellant's Br. at 7. We note that a court is under no obligation to weigh aggravators and mitigators, but if it does it may commit error by, among other things not pertinent here, omitting from its sentencing statement a factor that is “clearly supported by the record and advanced for consideration[.]” Anglemeyer, 868 N.E.2d at 491. But, as an initial matter, the record shows that the trial court did not, as Kelly claims, omit her history of self-employment from its sentencing statement.

[9] In highlighting her business, work ethic, and efforts to help others through her work, Kelly did not argue that her self-employment in and of itself justified a reduced sentence. Instead, she contended it showed that “she's actually ․ [been] a very responsible person in society.” Tr. at 115. The court recognized as much, stating from the bench that Kelly had “done a lot since” completing her previous sentence in 2019, had been living a “fairly law[-]abiding life[,]” and that her efforts to “help other people” were “a true benefit to [herself] and the community.” Id. at 119, 120. Thus, while the court did not explicitly use the word “employment,” it clearly considered the mitigating factor advanced by Kelly that she had contributed to her community through her business after completing her previous sentence.

[10] Moreover, even assuming the trial court did fail to recognize Kelly's employment as a mitigating factor, Kelly has not shown that failure was an abuse of discretion. A court need only recognize the “mitigating circumstances it finds to be significant.” Rawson v. State, 865 N.E.2d 1049, 1056 (Ind. Ct. App. 2007), trans. denied. Accordingly, to establish that the trial court abused its discretion, Kelly was required to demonstrate not only that her self-employment was supported by the record, but also that it carried significant mitigating weight. Id. While Kelly arguably presented evidence of her self-employment, she has not advanced any argument on appeal as to why it should have been a significant mitigator. Indeed, this Court has previously recognized that because “many people are gainfully employed[,] ․ a defendant's employment is not necessarily a mitigating factor.” Holmes v. State, 86 N.E.3d 394, 399 (Ind. Ct. App. 2017), trans. denied.

[11] In any event, even where a court errs in issuing a sentencing statement, we will not remand for resentencing if “we can say with confidence that the trial court would have imposed the same sentence if it considered [ ] the proper” aggravating and mitigating circumstances. Robertson v. State, 871 N.E.2d 280, 287 (Ind. 2007). We can say as much here. As the trial court told Kelly at the sentencing hearing, the court's sentence was lenient despite her lengthy criminal history. Tr. at 124 (“[Y]ou appeared before this [c]ourt facing ․ [eight] and a half years [in prison],⁶ and you're leaving with only one.”). One reason for that leniency, the court explained, was that Kelly's recent relatively law-abiding behavior demonstrated that she had “the ability to respond affirmatively to probation or to short term imprisonment.” Id. at 120. It is unclear how the explicit acknowledgement of Kelly's self-employment would have changed the trial court's judgment that the appropriate sentence was a short, one-year term of imprisonment—well below the statutory maximum—followed by three years of probation. As such, to the extent the court arguably erred by failing to explicitly recognize Kelly's employment as a mitigating factor, that error was harmless. See Banks v. State, 841 N.E.2d 654, 658 (Ind. Ct. App. 2006) (finding trial court's failure to recognize guilty plea as mitigator harmless because “[i]t [was] unlikely ․ that the trial court would have imposed a lesser sentence[ ] even if it had properly acknowledged the guilty plea mitigator”), trans. denied.

Conclusion

[12] For these reasons, we affirm the trial court's sentencing decision.

[13] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-4-2(a)(1)(B)(i).

2.   I.C. § 35-44.1-3-1(a)(1).

3.   I.C. § 35-48-4-6.1(a), (b)(2).

4.   I.C. § 35-48-4-7(a), (b).

5.   I.C. § 35-48-4-8.3(b)(1).

6.   Indeed, Kelly was facing a maximum sentence of six years on her Level 5 conviction and two and a half years on the Level 6, for a total of eight and a half years had the trial court imposed maximum consecutive sentences. I.C. §§ 35-50-2-6(b), 35-50-2-7(b).

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur.