Michael Kucholick v. State of Indiana , 977 N.E.2d 351 ( 2012 )

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bradley K. Mohler Gregory F. Zoeller
Frankfort, Indiana Attorney General of Indiana
Aaron J. Spolarich
Deputy Attorney General
Indianapolis, Indiana
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In the FILED
Nov 07 2012, 10:26 am
Indiana Supreme Court
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 12S02-1211-CR-630
MICHAEL KUCHOLICK,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Clinton Circuit Court
No. 12C01-1003-FC-62
The Honorable Linley Pearson, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 12A02-1109-CR-907
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November 7, 2012
Per Curiam.
After David Lawler obtained a $2,500 civil judgment against Michael Kucholick’s
girlfriend for unpaid rent, Kucholick drove by Lawler’s rural home and fired two shots into the
home.
Kucholick was charged with one count of criminal recklessness (a Class C felony), Ind.
Code § 35-42-2-2, and one count of criminal mischief (a Class B misdemeanor), id. § 35-43-1-2.
A jury found Kucholick guilty as charged, and the trial court sentenced Kucholick to an
enhanced term of seven years for criminal recklessness (consisting of four years executed in the
Department of Correction and three years suspended to probation) and six months for criminal
mischief, to be served concurrently.
Kucholick appealed, arguing in part that the sentence imposed by the trial court was
inappropriate in light of the nature of the offense and the character of the offender. See
Appellate Rule 7(B). Citing that rule, in a divided opinion the Court of Appeals concluded that
Kucholick had met his burden of establishing that his sentence was inappropriate. The majority
held that Kucholick’s sentence should be revised to an aggregate sentence of four years,
consisting of two years executed in a community corrections program and two years suspended
to probation. Kucholick v. State, No. 12A02-1109-CR-907, slip op. (Ind. Ct. App. June 8, 2012).
“The principal role of appellate 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) preserves for the trial court the
central role in sentencing. Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003).
We agree that a modest sentence revision is warranted in this case. In his separate
opinion below, Judge Najam opined that the “nature of Kucholick’s offense closely corresponds
to the elements of the crime,” that “Kucholick’s character [is] equivocal,” and therefore that an
advisory sentence of four years, all executed, would be appropriate. Kucholick, slip op. at 10.
We agree. As applicable here, criminal recklessness entails recklessly, knowingly, or
intentionally performing an act that creates a substantial risk of bodily injury to another, by
shooting a firearm into an inhabited dwelling. Kucholick’s conduct corresponds to the elements
of the offense. As to Kucholick’s character, he was not truthful with law enforcement in this
case, and his trial had to be delayed when Kucholick arrived for court with alcohol in his system;
on the other hand, he is relatively young, has no prior felony convictions, and has a newborn
child to support. In short, the nature of Kucholick’s character is not particularly aggravating or
mitigating on balance.
We grant transfer of jurisdiction and direct revision of Kucholick’s aggregate sentence to
an advisory term of four years, all executed. The decision of the Court of Appeals is summarily
affirmed in all other respects. See Ind. Appellate Rule 58(A).
Rucker, David and Massa, JJ., concur.
Dickson, C.J., dissents, believing that, while it is correct to grant transfer, the judgment of the
trial court should be affirmed.