Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 1 of 6

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

Gregory L. Fumarolo

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Lynn Kohne,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 18, 2017

Court of Appeals Case No.

01A02-1608-CR-1973

Appeal from the Adams Circuit 

Court

The Honorable Chad Kukelhan, 

Judge

Trial Court Cause No.

01C01-1511-F5-44

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 01A02-1608-CR-1973 | April 18, 2017 Page 2 of 6

Case Summary and Issue

[1] Lynn Kohne pleaded guilty without the benefit of a plea agreement to two 

counts of causing death while driving with an alcohol concentration equivalent 

greater than .08 as Level 5 felonies. The trial court sentenced Kohne to an 

aggregate sentence of twelve years in the Indiana Department of Correction

(“DOC”), with two years suspended to probation. Kohne appeals, raising two 

issues for our review, one of which we find dispositive: whether Kohne’s

sentence is inappropriate in light of the nature of the offenses and his character. 

Concluding Kohne’s sentence is inappropriate, we reverse and remand. 

Facts and Procedural History

[2] On November 21, 2015, Kohne visited a local establishment and consumed 

alcoholic beverages. Around 3:00 p.m. that afternoon, Kohne was driving his 

vehicle southbound on Highway 27 in Decatur, Indiana. At the same time, 

Gary Herriford, his wife Cynthia, and their thirteen-year-old daughter K.H.

were traveling northbound. Kohne’s vehicle veered into the Herrifords’ lane 

and collided with their vehicle. Gary was pronounced dead at the scene and

Cynthia was hospitalized with severe injuries. K.H. was also taken to the 

hospital but it does not appear she suffered injuries. A subsequent breath test 

revealed Kohne’s blood alcohol content was .13.

[3] On November 23, 2015, the State charged Kohne with causing death while 

operating a motor vehicle with an alcohol concentration equivalent greater than 
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.08 as a Level 5 felony and the same causing serious bodily injury as a Level 6 

felony. Thereafter, Cynthia succumbed to her injuries and the State amended 

the charging information to include only two counts of causing death while 

operating a motor vehicle with an alcohol concentration equivalent greater than 

.08 as Level 5 felonies. On June 27, 2016, Kohne pleaded guilty to both counts 

without the benefit of a plea agreement and the trial court accepted the plea. 

The trial court then entered judgement of conviction and sentenced Kohne on 

each count to six years, with five years executed and one year of probation, to 

be served consecutively for an aggregate sentence of twelve years in the DOC, 

with two years suspended to probation. This appeal ensued.

Discussion and Decision1

[4] Indiana Appellate Rule 7(B) provides, “The 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.” The defendant bears the burden of 

persuading this court his or her sentence is inappropriate. Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate 

turns on “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.”

 

1 Kohne also contends the trial court abused its discretion in sentencing him. Because we conclude his 

sentence is inappropriate, we need not address this claim.
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Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of 

appellate review is to “leaven the outliers,” not achieve the perceived “correct” 

result in each case. Id. at 1225.

[5] The advisory sentence is the starting point the legislature selected as an 

appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d 

482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Here, Kohne was 

convicted of two counts of causing death while driving with an alcohol 

concentration equivalent greater than .08 as Level 5 felonies. Indiana Code 

section 35-50-2-6(b) states 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. The trial court sentenced Kohne to six years in the 

DOC for each offense, with one year suspended to probation. 

[6] As to the nature of the offense, we certainly acknowledge the recklessness of 

Kohne’s choice to drive while under the influence of alcohol, the dire 

consequences of his conduct, and the tragic effect the accident had on the 

Herrifords’ family, including their young daughter, K.H. However, we must 

emphasize his conduct is what the elements of the crime already take into 

consideration: the reckless choice of driving under the influence and causing the 

death of an individual. As to Kohne’s character, we note Kohne was sixty 

years old with significant medical issues, including congenital heart failure, at 

the time of the sentencing hearing; he has been consistently employed for most, 

if not all, of his adult life; he has a clean criminal record; he accepted full 

responsibility for his actions; he showed remorse by apologizing to the 
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Herrifords’ family and sought their forgiveness; and the pre-sentence 

investigation report indicates he is unlikely to reoffend. 

[7] In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied, the 

defendant was convicted of two counts of causing death while operating a 

motor vehicle with an alcohol concentration equivalent greater than .08 as 

Class C felonies and was sentenced to a maximum sentence of eight years on 

each count, to be served consecutively. Compare Ind. Code § 35-50-2-6(a) 

(providing a person convicted of a Class C felony committed prior to July 1, 

2014, shall be imprisoned between two and eight years, with the advisory 

sentencing being four years), with Ind. Code § 35-50-2-6(b) (providing a person 

convicted of a Level 5 felony after June 30, 2014, shall be imprisoned between 

one and six years, with the advisory sentence being three years). On appeal, the 

defendant challenged the appropriateness of his sentence. In reviewing the 

nature of the offenses, we noted two deaths resulted from the defendant’s crime 

and the defendant attempted to lie about who was driving the vehicles. As to 

the defendant’s character, we further noted the defendant had multiple prior 

convictions and probation violations and was dishonest about who was driving 

the vehicle, thus showing a lack of remorse and an inability to accept 

responsibility. In light of these observations, we concluded the defendant’s 

maximum sentence was not inappropriate. Ricci, 894 N.E.2d at 1095. 

[8] Similar to Ricci, Kohne’s offenses caused the death of two individuals and 

impacted the victims’ family members. In addition, we also note Kohne 

received the maximum sentence on each count, although one year was 
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suspended. However, unlike the defendant in Ricci, Kohne has a clean criminal 

history, immediately took responsibility for his crimes, and showed remorse. 

[9] In short, two Level 5 felonies running consecutively to one another carry a 

maximum sentence of twelve years executed. The trial court sentenced Kohne 

to just below the maximum giving consideration to the suspended sentence: 

twelve years with two suspended to probation. In light of the nature of the 

offenses and Kohne’s character, we conclude this sentence is inappropriate. On 

remand, we direct the trial court to amend its abstract of judgment and/or 

sentencing order to reflect a sentence on each count of four years in the DOC, 

with one year suspended to probation. The sentences shall be served 

consecutively to one another for a total aggregate sentence of eight years in the 

DOC, with two years suspended to probation. 

Conclusion

[10] Kohne’s sentence is inappropriate in light of the nature of the offenses and his 

character. Accordingly, we reverse and remand with instructions.

[11] Reversed and remanded.

Vaidik, C.J., and Bailey, J., concur.