Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Feb 28 2014, 8:38 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID W. STONE IV GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TERRY LEE DUCKWORTH, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1307-CR-582
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable David A. Happe, Judge
Cause No. 48C04-1209-FB-1746
February 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Terry Lee Duckworth appeals his three year sentence for Class D felony sexual
battery.1 As the sentence was not inappropriate in light of his character and the nature of the
offense, we affirm.
FACTS AND PROCEDURAL HISTORY
On July 6, 2012, Duckworth met M.H. on the street in Anderson. They walked back
to M.H.’s apartment, where Duckworth made sexual advances and touched M.H. without her
consent.
The State charged Duckworth with Class B felony attempted rape2 and Class B felony
criminal deviate conduct,3 and Duckworth agreed to plead guilty to Class D felony sexual
battery. In exchange for Duckworth’s guilty plea, the State agreed to dismiss the charges of
attempted rape and criminal deviate conduct, and it agreed not to file additional charges of
Class D felony residential entry,4 Class D felony criminal confinement,5 and being a habitual
offender.6 The trial court found Duckworth’s three prior felonies to be an aggravating factor
and found Duckworth’s guilty plea to be the only mitigating factor. After weighing these
factors, the trial court imposed the maximum sentence of three years.
DISCUSSION AND DECISION
We may revise a sentence if it is 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)
1
Ind. Code § 35-42-4-8.
2
Ind. Code § 35-42-4-1(a) (rape); Ind. Code §35-41-5-1 (attempt).
3
Ind. Code § 35-42-4-2(a).
4
Ind. Code § 35-43-2-1.5.
5
Ind. Code § 35-42-3-3(a).
6
Ind. Code § 35-50-2-8.
2
(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found
by the trial court, but also any other facts appearing in the record. Roney v. State, 872 N.E.2d
192, 206 (Ind. Ct. App. 2007), abrogated on other grounds, Bethea v. State, 983 N.E.2d
1134, 1145 (Ind. 2013). The appellant bears the burden of demonstrating his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
When considering the nature of the offense, the advisory sentence is the starting point
to determine the appropriateness of a sentence. Anglemeyer v. State, 868 N.E.2d 482, 494
(Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). The
sentencing range for a Class D felony is six months to three years, with an advisory sentence
of eighteen months. Ind. Code § 35-50-2-7. Duckworth asserts there is “nothing about the
manner in which the crime in this case was committed which makes it more egregious than
other sexual batteries.” (Br. of Appellant at 3). According to the victim impact statement,
this sexual battery occurred in the presence of the victim’s very young child. It also resulted
in two Class B felony charges, each of which could have carried a sentence of twenty years,
if Duckworth had not pled guilty. These facts lead us to believe a three-year sentence is not
inappropriate based on the nature of this sexual battery.
Regarding a defendant’s character, one relevant fact is his 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. Duckworth had three prior
felony convictions, including a second degree burglary in 1964, attempted escape in 1979,
3
and intimidation as a Class D felony in 2007. In addition, he had a conviction for
misdemeanor resisting law enforcement in 2007. Due to his violation of probation in the
2007 case, Duckworth served his suspended sentence and was released from the Department
of Correction only three months prior to committing the current crime.
Another factor relevant to a defendant’s character is his remorse or his lack thereof.
Deane v. State, 759 N.E.2d 201, 205 (Ind. 2001). The trial court explicitly noted
Duckworth’s lack of remorse, and we concur in the court’s assessment because, even after
pleading guilty, Duckworth continued to denigrate the victim and deny culpability. At one
point during the sentencing hearing, Duckworth tried to withdraw his guilty plea. These facts
do not reflect well on his character.
Based on Duckworth’s character and the nature of his offense, we cannot say his
three-year sentence was inappropriate. Accordingly, we affirm.
Affirmed.
VAIDIK, C.J. and RILEY, J., concur.
4