Court of Appeals of Indiana | Memorandum Decision 45A04-1703-CR-706 | September 21, 2017 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Sean C. Mullins

Appellate Public Defender

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kelcey Dirk Sample,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 21, 2017

Court of Appeals Case No.

45A04-1703-CR-706

Appeal from the Lake Superior 

Court

The Honorable Clarence D. 

Murray, Judge

Trial Court Cause No.

45G02-1502-F3-11

May, Judge.
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[1] Kelcey Dirk Sample appeals his sentence of three years for Level 5 felony 

battery resulting in serious bodily injury.1

 He argues the trial court abused its 

discretion when it sentenced him and that his sentence is inappropriate based 

on the nature of the offense and his character. We affirm.

Facts and Procedural History

[2] On December 18, 2014, Sample went to Tiana Cody’s home. Sample and 

Cody had been in a relationship and have a five-year-old daughter together. 

While in Cody’s home, Sample pushed Cody into a mirror. The mirror broke 

and cut Cody’s hand and wrist, requiring twenty stitches. Cody also had 

bruising to her face, neck, and scalp. On February 23, 2015, the State charged 

Sample with two counts of Level 3 felony criminal confinement,2 and one count 

each of Level 5 felony criminal confinement,3 Level 5 felony battery resulting in 

serious bodily injury, Level 6 felony criminal confinement,4 Level 6 felony 

strangulation,5 Level 6 felony domestic battery,6 Level 6 felony battery with 

 

1 Ind. Code § 35-42-2-1(f) (2014).

2 Ind. Code § 35-42-3-3(b)(2) (2014).

3 Ind. Code § 35-42-3-3(b)(1) (2014).

4 Ind. Code § 35-42-3-3(a) (2014).

5 Ind. Code § 35-42-2-9(b) (2014).

6 Ind. Code § 35-42-2-1.3(b) (2014).
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moderate bodily injury,7 and Class A misdemeanor battery resulting in bodily 

injury.8

[3] In August 2016, the State charged Sample with two counts of Level 5 felony 

criminal confinement and one count each of Level 6 felony criminal 

confinement, Level 6 felony battery resulting in moderate bodily injury, and 

Class A misdemeanor battery for an incident involving Lori Gonzalez. Sample 

and Gonzalez had been in a relationship, and it was alleged he attacked her, 

resulting in a black eye. Gonzalez indicated she also had to attend physical 

therapy because of her injuries.

[4] After multiple continuances and changes in counsel, Sample was scheduled to 

go to trial for the nine charges involving Cody on January 23, 2017. The same 

day, Sample and the State reached a plea agreement under which Sample 

would plead guilty to one count of Level 5 felony battery resulting in serious 

bodily injury and the State would dismiss the other eight charges in that case, as 

well as dismiss the five counts in the case involving Gonzalez. The plea 

agreement provided for a sentence of no more than three years, to be 

determined after the parties argued their respective positions before the trial 

court.

 

7 Ind. Code § 35-42-2-1(d) (2014).

8 Ind. Code § 35-42-2-1(c) (2014).
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[5] On March 1, 2017, the trial court held a sentencing hearing. After receiving 

argument from counsel and testimony from Cody, Gonzalez, and Sample, the 

trial court sentenced Sample to three years incarcerated, noting: “I’m 

constrained by the terms of this plea agreement. It calls for a cap of three years. 

So the Court cannot impose a sentence beyond that. But had the parties put a 

higher number in that category, then I would have had leeway to impose a 

longer sentence.” (Sent. Tr. at 32-3.)

Discussion and Decision

Abuse of Discretion

[6] Sentencing decisions rest within the sound discretion of the trial court and we 

review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of 

discretion occurs if the decision is clearly against the logic and effect of the facts 

and circumstances before the court or the reasonable, probable, and actual 

deductions drawn therefrom. Id. We review for an abuse of discretion the 

court’s finding of aggravators and mitigators to justify a sentence, but we 

cannot review the relative weight assigned to those factors. Id. at 490-491. 

When reviewing the aggravating and mitigating circumstances identified by the 

trial court in its sentencing statement, we will remand only if “the record does 

not support the reasons, or the sentencing statement omits reasons that are 

clearly supported by the record, and advanced for consideration, or the reasons 

given are improper as a matter of law.” Id.
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[7] Sample’s plea agreement capped his sentence at three years, which is the 

advisory sentence for a Level 5 felony. See Ind. Code § 35-50-2-6(b) (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”). 

Sample argues the trial court abused its discretion when it considered as an 

aggravator a felony conviction in Sample’s presentence report which, upon 

Sample’s completion of probation in that case, was reduced to a Class A 

misdemeanor conviction. Sample does not challenge any of the trial court’s 

other aggravators.

[8] In sentencing Sample, the trial court found three aggravators:

1. The has [sic] defendant has [a] history of juvenile 

adjudications, misdemeanor and felony convictions. Defendant 

has violated probation in the past. Defendant has a history of 

arrests involving domestic battery.

2. The Court finds the nature and circumstances of the crime 

to be a significant aggravating factor in that the victim was 

attacked in her own home without provocation.

3. Defendant is unapologetic and claims he is being found 

guilty of “breaking women’s hearts,” and not battery.

(App. Vol. II at 54.) “A single aggravating circumstance may be sufficient to 

enhance a sentence.” Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). The 

State presented evidence Sample had an extensive criminal history including

multiple misdemeanor convictions, had violated probation, and had a history of 
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arrests involving domestic violence dating back many years. In his plea 

agreement, Sample stipulated he entered Cody’s house, he intentionally pushed 

her causing injury, and she did not consent to Sample’s contact. Further, 

Sample stated during his sentencing hearing, “Legally, I’ve been charged with 

battery, but morally and realistically I’ve been found guilty for playing with 

women’s hearts. . . . It’s a matter of broken hearts as to why they want me 

convicted today.” (Sent. Tr. at 24-5.) 

[9] Even without the contested consideration of Sample’s felony-turnedmisdemeanor conviction, there existed a plethora of aggravators to justify 

Sample’s three-year sentence. See Edrington v. State, 909 N.E.2d 1093, 1101 

(Ind. Ct. App. 2009) (proper to affirm sentence even if improper aggravator is 

considered, if we have “confidence that the trial court would have imposed the 

same sentence” regardless), trans. denied.

Inappropriate Sentence

[10] Sample argues his seven-year sentence is inappropriate under Indiana Appellate 

Rule 7(B). Under this rule, we may revise a sentence if, after due consideration 

of the trial court’s decision, we find the sentence inappropriate in light of the 

nature of the offense and the character of the offender. Williams v. State, 891 

N.E.2d 621, 633 (Ind. Ct. App. 2008). Our review is deferential to the trial 

court’s decision, and our goal is to determine whether the defendant’s sentence 

is inappropriate, not whether some other sentence would be more appropriate. 

Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant 
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bears the burden of demonstrating his sentence is inappropriate. Childress v. 

State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a sentence is inappropriate 

depends on “our sense of the culpability of the defendant, the severity of the 

crime, the damage done to others, and myriad other factors that come to light 

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). 

[11] When considering the nature of the offense, the advisory sentence is the starting 

point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at 

494. 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.” Ind. Code § 35-50-2-6(b). Sample’s plea agreement capped his 

sentence at three years. While Sample urges us to consider his sentence as the 

“maximum penalty” for his crime, (Br. of Appellant at 11), we note his 

sentence was the advisory for a Level 5 felony.

[12] Sample argues Cody’s injuries, which included a cut requiring twenty stitches, 

was “an unexpected result” of pushing her into a mirror. (Id. at 12.) Further, 

Sample argues “while Sample took responsibility for his action and the resulting 

injuries in accepting the plea, it cannot be said that it was Sample’s intent to 

bring about these serious, yet somewhat remote and unforeseeable, injuries.” 

(Id.) Sample’s characterization of the events leading to his conviction are 

laughable at best and highlight his continued failure to take responsibility for his 

actions. As the trial court noted, Sample’s “attitude seems to be more that he is 

the victim, more so than these women. It’s their fault for falling in love with 
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him. That’s what it sounds like. That’s arrogance on a scale that I just seldom 

hear.” (Sent. Tr. at 33.)

[13] Sample stipulated, as part of his plea agreement, that he “intentionally pushed 

Tiana Cody into a mirror causing the mirror to break and Tiana Cody to cut her 

hand.” (App. Vol. II at 50.) He also stipulated Cody “cut her hand and wrist 

and needed over 20 stitches and had bruising on her face, neck, and scalp.” 

(Id.) He did not claim his touching was accidental. We conclude Sample’s 

sentence is not inappropriate based on the nature of his offense. See Perry v. 

State, 78 N.E.3d 1, 13 (Ind. 2017) (two and a half year sentence appropriate 

when offender admitted his participation in the battery, but continued to blame 

the victim).

[14] When considering the character of the offender, one relevant fact is the 

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. 

App. 2007). The significance of a criminal history in assessing a defendant’s 

character varies based on the gravity, nature, and number of prior offenses in 

relation to the current offense. Id. While a record of arrests may not be used as 

evidence of criminal history, it can be “relevant to the trial court’s assessment of 

the defendant’s character in terms of the risk that he will commit another 

crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).

[15] Sample has a lengthy criminal history with multiple juvenile adjudications,

misdemeanor convictions, and felony arrests for battery, including one in 2008 
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involving Gonzalez. In addition, while Sample claims to have taken 

responsibility for his actions, he stated during his sentencing hearing:

First and foremost, I do want to apologize to [sic] my 

contributions to the accident that brings us here today. I am 

pleading guilty today for what I know that I done [sic], and I am 

remorseful. . . . A lot of why I’m here has to do with playing with 

a woman’s heart. Legally, I’ve been charged with battery, but 

morally and realistically, I’ve been found guilty for [sic] playing 

with woman’s hearts.

(Sent. Tr. at 23-4.) This statement is an illustration of Sample’s refusal to do 

exactly what he touts—express remorse and accept responsibility. Taking 

together Sample’s criminal history and lack of remorse, we cannot say his 

sentence is inappropriate based on his character. See Perry, 78 N.E.3d at 13 

(sentence appropriate when offender had an extensive criminal history and 

expressed veiled remorse for his crimes).

Conclusion

[16] As the trial court considered several proper aggravators when sentencing 

Sample, it did not abuse its discretion in sentencing him. Further, we conclude 

Sample’s sentence is not inappropriate based on the nature of the offense or his 

character. Accordingly, we affirm his three-year sentence. 

[17] Affirmed.

Barnes, J., and Bradford, J., concur.