Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 05-17-2021
Case Style:
David L Kennedy v. State of Indiana
Case Number: 20A-CR-02182
Judge: Rudolph Pyle III
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Defendant's Attorney:
Description:
Indianapolis, IN - Criminal defense attorney represented David L. Kennedy with a felony theft charge.
In 2017, Kennedy owned a construction company and did home construction
and home remodeling. In December 2017, Ryan Knepp (“Ryan”) and Chelsa
Knepp (“Chelsa”) (collectively, “the Knepps”) hired Kennedy to build a house
for them and their four children on the Knepps’ five-acre property. The new
1
IND. CODE § 35-43-4-2.Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 3 of 13
home was to cost approximately $250,000.00. The Knepps sold their existing
home and used funds from that sale to put toward the construction of their new
home. In February 2018, the Knepps gave Kennedy multiple checks, including
one for $10,000.00 and another for $70,000.00. Kennedy did not use those
funds to complete the required work on the house. The Knepps realized that
there were problems with Kennedy after they learned that Kennedy had failed
to pay various subcontractors. The Knepps attempted to discuss the problems
with Kennedy, but they were met with excuses from Kennedy. Ultimately, the
Knepps’ house was never constructed, and they sold the property.
[4] In September 2018, the State charged fifty-two-year-old Kennedy with Level 5
felony theft and Level 6 felony theft. In October 2018, Kennedy was released
on a $25,000.00 bond, which was paid by his brother. In September 2019, the
State filed a motion to revoke Kennedy’s bond, alleging that Kennedy had been
charged with committing additional offenses (including three counts of Level 5
felony corrupt business influence, Level 6 felony theft, and two counts of Class
A misdemeanor home improvement fraud) in Lawrence County. In October
2019, the trial court held a hearing and determined that Kennedy “pose[d] a
risk to the physical safety of the community[.]” (App. Vol. 2 at 77). The trial
court modified Kennedy’s bond by ordering him to “pay an additional
$25,000.00, 10% permitted, bond[.]” (App. Vol. 2 at 77). After the ten percent
bond was paid, Kennedy was re-released on bond.
[5] In August 2020, Kennedy entered into a written plea agreement with the State
and pled guilty to Level 5 felony theft. The State agreed to dismiss the Level 6 Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 4 of 13
felony charge and to request that Kennedy’s “sentence . . . be served in Work
Release with no actual Department of Correction time.” (App. Vol. 2 at 4).
The plea agreement also provided that the trial court would determine the
duration of Kennedy’s sentence and the restitution due to the victims. The trial
court accepted Kennedy’s guilty plea and entered judgment of conviction on the
Level 5 felony.
[6] Kennedy’s presentence investigation report (“PSI”) that had been prepared for
his sentencing hearing revealed that Kennedy had three convictions and
multiple pending charges in multiple counties, and these offenses were similar
in nature to his current offense. Specifically, Kennedy had three theft
convictions out of Owen County for offenses that had occurred between
January and September 2018. In the Owen County case, Kennedy had been
charged with five counts of Level 6 felony theft, and he pled guilty to three of
those counts. The trial court entered judgment of conviction on the three
counts as Class A misdemeanors, sentenced Kennedy to three years of
probation, and ordered him to pay over $15,000.00 in restitution to his victims.
[7] Kennedy also had the following pending cases: (1) a Davies County Level 6
felony check fraud charge that was alleged to have occurred in May 2018; (2) a
Martin County Level 6 felony check deception charge that was alleged to have
occurred in July 2018; (3) a Martin County Level 6 felony check deception
charge that was alleged to have occurred in August 2018; (4) three Monroe
County charges for home improvement fraud (two as Class A misdemeanors
and one as a Class B misdemeanor) that were alleged to have occurred between Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 5 of 13
December 2018 to October 2019; and (5) six Lawrence County charges (three
charges for Level 5 felony corrupt business influence, a Level 5 felony theft
charge, and two Class A misdemeanor home improvement fraud charges) that
were alleged to have occurred between February and August 2019.
Additionally, Kennedy had been charged in Orange County with Level 6 felony
check deception in September 2018, and he entered into a pretrial diversion
agreement for this charge. He paid over $3,000.00 in restitution, and the charge
was dismissed in November 2019.
[8] During the sentencing hearing, the parties discussed the PSI probation officer’s
recommendation that Kennedy be placed on probation instead of work release
if the work release placement would result in a lower paying job and hinder
Kennedy’s ability to pay restitution. Specifically, the probation officer
recommended that Kennedy receive a five-year suspended sentence to
probation and complete 800 hours of community service. The State indicated
that it disagreed with the probation officer’s recommendations. The trial court
pointed out that the probation officer’s recommendations were merely
recommendations and that the trial court would make the determination of the
aggravating and mitigation circumstances and make the “ultimate decision”
regarding Kennedy’s sentence. (Tr. Vol. 2 at 18).
[9] At the hearing, the Knepps testified regarding how Kennedy’s offense against
them had affected them and how they had lost their dream home. The Knepps
testified that in addition to the $80,000.00 that they had paid to Kennedy, they
had also paid two subcontractors whom Kennedy had failed to pay so that there Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 6 of 13
would not be any liens placed on their property. Specifically, the Knepps had
paid $8,500.00 to the septic system subcontractor and $5,400.00 to the
subcontractor who had dug the basement. Additionally, Ryan testified that he
had discussed the problems with Kennedy and had “asked for proof of where
[the Knepps] money was at multiple, multiple times[,]” but Kennedy gave the
Knepps “multiple excuses.” (Tr. Vol. 2 at 45, 46). The Knepps testified that
Kennedy had never apologized to them and that he had made no personal effort
to repay the Knepps for their loss. Ryan did, however, acknowledge that the
Knepps had received the $27,500.00 that had been paid on Kennedy’s behalf to
bail him out of jail, but Ryan noted that “[i]f it had not been for the bail [funds,]
[he] d[id]n’t think [he] would have seen a dollar” from Kennedy. (Tr. Vol. 2 at
38).
[10] When Kennedy testified at the sentencing hearing, he acknowledged that he
had poorly managed his business accounts. He stated that he had
“mismanaged [the Knepps’] money horribly” but then tried to minimize his
responsibility by stating that he “didn’t take eighty thousand dollars and run off
to China” or spend it on gambling or drugs. (Tr. Vol. 2 at 82). Kennedy
suggested that the trial court should find that any imprisonment would result in
undue hardship to his family. Additionally, Kennedy requested that any
sentence he received to be served strictly on probation.
[11] The trial court found the following aggravating circumstances: (1) Kennedy’s
criminal history; (2) Kennedy’s violation of the conditions of pretrial release;
and (3) the harm, injury, loss, or damage suffered by the victims was significant Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 7 of 13
and greater than the elements necessary to prove the commission of the offense.
The trial court determined that Kennedy’s guilty plea and the fact that he had
made some restitution to the victims to be mitigating circumstances. The trial
court imposed a six (6) year sentence with three (3) years executed in the
Wabash Valley Regional Community Corrections on work release and three (3)
years suspended to probation. The trial court also ordered Kennedy to pay
$66,510.00 in restitution to the Knepps as a special condition of probation.
Kennedy now appeals.
Decision
[12] Kennedy contends that: (1) the trial court abused its discretion when
sentencing him; and (2) his sentence is inappropriate. We will review each
argument in turn.
1. Abuse of Discretion
[13] Kennedy argues that the trial court abused its discretion in its determination of
mitigating circumstances. Sentencing decisions rest within the sound discretion
of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007). So long as the sentence is within the
statutory range, it is subject to review only for an abuse of discretion. Id. An
abuse of discretion will be found where 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. Id. A trial court may
abuse its discretion in several ways, including: (1) failing to enter a sentencing Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 8 of 13
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. Id. at 490-91.
[14] Kennedy argues that the trial court abused its discretion in its determination of
mitigating circumstances. Specifically, Kennedy contends that the trial court’s
failure to find undue hardship to his dependents as a mitigating circumstance
was “a plain oversight” by the trial court and that the trial court had “abundant
uncontested evidence to find that long-term incarceration . . . would result in
undue hardship[.]” (Kennedy’s Br. 10). We disagree.
[15] There is no requirement that a trial court find a defendant’s incarceration would
result in undue hardship to his dependents. Benefield v. State, 904 N.E.2d 239,
247 (Ind. Ct. App. 2009), trans. denied. As our Indiana Supreme Court has
observed, “[m]any persons convicted of serious crimes have one or more
children and, absent special circumstances, trial courts are not required to find
that imprisonment will result in an undue hardship.” Dowdell v. State, 720
N.E.2d 1146, 1154 (Ind. 1999).
[16] The record on appeal shows that Kennedy is married and that he is the father of
two adult children. During the sentencing hearing, Kennedy testified his wife
had some back issues from a car accident ten to twelve years prior and that she
had a congenital heart defect. The record, however, reveals that Kennedy’s Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 9 of 13
wife works as a hairstylist, has operated her own business for over ten years,
and earns up to $1,200.00 per month. One of Kennedy’s sons testified at the
sentencing hearing and stated that Kennedy’s wife, who is the son’s stepmother,
has three grandchildren (ages eighteen, twelve, and two). The son further
testified that Kennedy’s wife ran her own hair salon and that she spent some of
her earnings on her grandchildren. Additionally, Kennedy’s son testified that
he knew that he would be “step[ping] up” and “helping” his stepmother and her
grandchildren. (Tr. Vol. 2 at 106). Kennedy’s counsel argued that placing
Kennedy in prison would result in undue hardship to Kennedy’s wife and
family.
[17] Contrary to Kennedy’s suggestion, the trial court did not overlook his proffered
mitigating circumstance; instead, the trial court simply and duly rejected it. See
Benefield, 904 N.E.2d at 247 (explaining that there is no requirement that a trial
court find a defendant’s incarceration would result in undue hardship to his
dependents). Moreover, the trial court ordered Kennedy to serve his sentence
on work release and on probation, and both placements offer Kennedy the
opportunity to work and continue to contribute to his family. Because
Kennedy failed to show that this proffered mitigator was significant, the trial
court did not abuse its discretion by declining to find it as a mitigating
circumstance. See Dowdell, 720 N.E.2d at 1154 (explaining that a defendant
who argues that a trial court failed to find a mitigating circumstance must show
that the proffered mitigator is both significant and clearly supported by the
record). Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 10 of 13
2. Inappropriate Sentence
[18] Kennedy argues that his sentence, which is comprised of both work release in a
community corrections program and on probation, is inappropriate. He does
not challenge the duration of his sentence. Instead, he asks this Court to
instruct the trial court to place him on probation only with no work release.
[19] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
Rule 7(B) review “should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied.
[20] Appellate review of a defendant’s sentence under Rule 7(B) will include
consideration of the length of the sentence as well as consideration of “whether
a portion of the sentence is ordered suspended or otherwise crafted using any of
the variety of sentencing tools available to the trial judge,” such as placement in
community corrections or on probation. Davidson v. State, 926 N.E.2d 1023, Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 11 of 13
1025 (Ind. 2010). A defendant may challenge, under Appellate Rule 7(B), the
location where a sentence is to be served. Biddinger v. State, 868 N.E.2d 407,
414 (Ind. 2007). However, “it will be quite difficult for a defendant to prevail
on a claim that the placement of his sentence is inappropriate” because a
defendant challenging the placement of a sentence must convince us not that
another placement would be more appropriate but that the ordered placement is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
[21] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Kennedy pled guilty and was convicted of Level 5 felony theft. A person who
commits a Level 5 felony “shall be imprisoned for a fixed term of between one
(1) and six (6) years, with the advisory sentence being three (3) years.” I.C. §
35-50-2-6(b). Here, Kennedy’s plea agreement provided that the State would
request for Kennedy’s “sentence to be served in Work Release with no actual
Department of Correction time.” (App. Vol. 2 at 4). The trial court imposed a
six-year sentence but used some of the “sentencing tools” available to it when it
ordered three years to be served in a community corrections program on work
release and suspended the remaining three years to probation. See Davidson,
926 N.E.2d at 1025.
[22] Turning first to the nature of Kennedy’s offenses, we note that he took
$80,000.00 from the Knepps but did not use it for the construction of their
dream home that they had hired Kennedy to build. When the Knepps Court of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 12 of 13
confronted Kennedy about their money and the problems with the house
construction, Kennedy gave the Knepps “multiple excuses.” (Tr. Vol. 2 at 45).
The Knepps also paid two subcontractors whom Kennedy had failed to pay,
resulting in the Knepps losing an additional $13,900.
[23] In reviewing Kennedy’s character, we note that he has a criminal history that
includes convictions and pending charges in multiple counties that are similar
in nature to the current offense. Specifically, Kennedy had three theft
convictions out of Owen County that involved the victims losing over
$15,000.00. He also had seven felony charges and five misdemeanor charges
pending among four other counties. More troubling is the fact that some of
pending charges are alleged to have occurred when Kennedy was out on bond
in this case, which reflects extremely poorly on his character. See Rutherford v.
State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (explaining that any criminal
history reflects poorly on a person’s character).
[24] Additionally, we reject Kennedy’s contention that the work release portion of
his sentence was detrimental to the Knepps and impeded his ability to pay
restitution. Kennedy’s contention is nothing more than an argument that it
would have been better had the trial court ordered him to serve his entire
sentence on probation instead of dividing it between work release and
probation, and such an argument fails to meet the burden of showing that a
sentence is inappropriate. See King, 894 N.E.2d at 268 (explaining that a
defendant challenging the placement of a sentence must convince us not that
another placement would be more appropriate but that the ordered placement isCourt of Appeals of Indiana | Memorandum Decision 20A-CR-2182 | May 17, 2021] Page 13 of 13
inappropriate). Further, it should be noted that appellate courts that are asked
to review and revise a criminal sentence also have the authority to “impose a
more severe sentence than was ordered by the trial court.” McCullough v. State,
900 N.E.2d 745, 746 (Ind. 2009). While we have chosen not to do so here, the
plea agreement and the facts of this case would have supported the trial court
ordering a portion of Kennedy’s sentence to be executed at the Department of
Correction.
Outcome: Nevertheless, Kennedy has not persuaded us that his six-year sentence, with
three years in a community corrections program on work release and three
years suspended to probation, is inappropriate. Therefore, we affirm the
sentence imposed by the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: