Court of Appeals of Indiana | Memorandum Decision 76A04

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### 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.

A TTORNEY FOR A PPELLANT Adam C. Squiller Squiller & Hamilton, LLP Auburn, I ndiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, I ndiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Paul Michael Kage, Jr. , Appellant

- Defendant,

v. 

### State of Indiana, Appellee

- Plaintiff

. J une 23, 2017 Court of Appeals Ca se No. 76A04

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Mathias, Judge .
[1] Paul Michael Kage, Jr. , ("Kage") was convicted in Steuben Superior Court of Level 5 felony operating a motor vehicle after forfeiture of license for life, andCourt of Appeals of Indiana | Memorandum Decision 76A04

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. Kage was also adjudicated a habitual offende r and was ordered to serve a n additional two years executed. Kage appeals and argues that his aggregate eight

- year sentence is inappropriate in light of the nature of his offense and his character.

[2] We affirm. 

### Facts and Procedural History

[3] On September 27, 2 015, Indiana State Police Trooper Chris Kinsey (“Trooper Kinsey”) observed Kage leave a gas station in a vehicle. Trooper Kinsey knew Kage from past law enforcement contact and confirmed with a license check by Steuben County Communications that Kage was a habitual traffic violator. Trooper Kinsey and Patrolman Matt Kling of the Angola Police Department subsequently stopped and arrested Kage without incident.

[4] Kage was charged with Level 5 felony operating a motor vehicle after f orfeiture of license for lif e. He was also charged as a habitual offender based on more than two pri or, unrelated felonies. In September 2016, a jury trial was held and Kage was convicted of both charges.

[5] Kage's sentencing hearing was held on October 17, 2016. The trial court observe d that Kage’s decision to operate his vehicle despite knowing that he had forfeited his license was not mitigated by any emergency circumstance. The trial court considered Kage’s criminal history as an aggravating circumstance. In addition to the four prio r felony convictions used in the state’s habitualCourt of Appeals of Indiana | Memorandum Decision 76A04

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- 2616 | J u n e 2 3 , 2 0 1 7 Page 3 of 5 offender allegation against him, Kage’s criminal history includes numerous prior felony and misdemeanor convictions. These include convictions for drug offenses, battery , invasion of privacy, operating a ve hicle while intoxicated, and other driving

- related offenses. Kage’s criminal history also includes four probation revocations. The trial court found no mitigating factors. The trial court ordered Kage to serve an aggregate sentence of eight years executed in the Department of Correction . Kage now appeals. 

### Discussion and Decision

[6] Kage argues that his aggregate eight

- year executed sentence is inappropriate in light of the nature of the offense and the character of the offender. Indiana Appellate Rule 7(B) provides that “ [t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” I n conducting our review, “ [w]e do not look to determine if the sentence was appropriate; instead, we look to make sure the sentence was not inappropriate. ” Conley v. State , 97 2 N.E.2d 864, 876 (Ind. 2012). “ [S]entencing is principally a discretionary funct ion in which the trial court's judgment should receive considerable deference.” Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). “ Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the off ense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits of persiste nt examples of good character).” Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015). KageCourt of Appeals of Indiana | Memorandum Decision 76A04

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[7] When considering the nature of the offense, we observe that "the advisory sentence is the starting point the Legislature selected as appropri ate for the crime committed." Pierce v. State , 949 N.E.2d 349, 352 (Ind. 2011). Courts may consider the advisory sentence for a crime when imposing a sentence, but courts are not required to use a n advisory sentence. Ind. Code § 35

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- 1.3(a

- b). The advis ory sentence for a Level 5 felony is three years, with a sentencing range of one to six years. Ind. Code § 35

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- 6(b). Kage's six

- year sentence is the maximum available in the Level 5 felony sentencing range. Courts may sentence habitual offenders convic ted of a Level 5 felony to an additional fixed term between two and six years. Ind. Cod e § 35

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- 8(i)(2). Kage's two

- year habitual offender enhancement results in an aggregate sentence of eight years. When evaluating whether a sentence is inappropriate, “ appellate review should focus on the forest

– the aggregate sentence

– rather than the trees

– consecutive or concurrent... or length of the sentence on any individual count. ” Cardwell , 895 N.E.2d at 1225.

[8] The nature of Kage's offense is closely related to the nature of Kage's character. Excluding his juvenile crimin al history, Kage has exhibited “constant criminal activity” since 1997. Appellant’s App. p. 27 . The trial court agreed with the pr esentence investigation report conclusion; Kage's criminal histo ry is “massive.” Tr. p. 105 . His criminal history includes the following offenses related to his current offense: two convictions for operating vehicle whileCourt of Appeals of Indiana | Memorandum Decision 76A04

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- 2616 | J u n e 2 3 , 2 0 1 7 Page 5 of 5 intoxicated, one conviction for driving while suspended, one conviction for driving while license not valid, one conviction for habitual traffic offender, and one conviction for operating a motor vehicle after a lifetime suspension. Past offenses unrelated to the present offense include convictions relating to violence, invasion of privacy, drugs, and alcohol. The trial court characteri zed Kage’s criminal history as “on point” with th e nature of his present crime. Tr. p. 105

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[9] The trial court found that although Kage cooperated during his arrest and respected the court proceedings, his b ehavior did litt le to mitigate “ a criminal history that i s this long. ” Tr. p. 106 . In the court's view , K age's pattern of recidivism is “reflective of [his] mindset” and “ disr espectful of the rule of law. ” Tr. p. 105

- 6 . Considering the length of Kage's criminal history an d its relation to his most recent convictions, we agree with the trial court that the aggregate eight

- year sentenc e is “earned and appropriate.” Tr. p. 106 . We conclude that Kage has not met his burden of persuading us that his eight

- year sentence is inappropriate in light of the nature of the offense and the character of the offender. See Anglemyer , 896 N.E.2d at 494.

[10] Affirmed.

Kirsch, J., and Altice, J., conc ur.