Kucholick v. State
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After David Lawler obtained a 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 found guilty of criminal recklessness and criminal mischief. The trial court sentenced Kucholick to an enhanced term of seven years for criminal recklessness and six months for criminal mischief, to be served concurrently. Kucholick appealed, arguing in part that his sentence was inappropriate in light of the nature of the offense and the character of the offender. The court of appeals concluded that Kucholick had met his burden of establishing that his sentence was inappropriate. The Supreme Court agreed and held that a modest sentence revision was warranted in this case. The Court then directed revision of Kucholick's aggregate sentence to an advisory term of four years, all executed.
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ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bradley K. Mohler Frankfort, Indiana Gregory F. Zoeller Attorney General of Indiana Aaron J. Spolarich Deputy Attorney General Indianapolis, Indiana ______________________________________________________________________________ In the Indiana Supreme Court _________________________________ FILED Nov 07 2012, 10:26 am 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 _________________________________ 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.
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