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 Dec 17 2013, 9:38 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CARL E. ASCHERMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 15A01-1305-CR-237
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT
The Honorable Sally A. Blankenship, Judge
Cause No. 15D02-1208-FA-16
December 17, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Carl Ascherman (Ascherman), appeals his sentence
following a conviction for one Count of attempted child molesting, a Class B felony, Ind.
Code §§ 35-42-4-3(a), -41-5-1; and two Counts of contributing to the delinquency of a
minor, Class A misdemeanors, I.C. § 35-46-1-8.
We affirm.
ISSUES
Ascherman raises two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when sentencing him; and
(2) Whether his sentence is inappropriate in light of the nature of his offenses and
his character.
FACTS AND PROCEDURAL HISTORY
On July 13, 2012, thirteen-year-old B.L. spent the night at Ascherman’s apartment
in Dearborn County, Indiana, with Ascherman and her best friend L.S., Ascherman’s
thirteen-year-old daughter. According to the probable cause affidavit, L.S. was staying
with Ascherman as part of parental visitation. Ascherman smoked marijuana throughout
the evening and encouraged both girls to do so too. The girls watched television until
approximately 1:00 a.m., when L.S. went to bed, followed by B.L. During the night,
Ascherman removed B.L.’s underwear and placed his penis on or around her vagina.
Ascherman stopped when B.L. said that she had to use the bathroom. Ascherman fell
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asleep after B.L. declined his invitation to come back to bed. B.L. later called her sister to
pick her up and told her what had occurred. B.L. was taken to the police station.
On July 17, 2012, the State filed an Information charging Ascherman with Counts
I-II, attempted child molesting, Class B felonies, I.C. §§ 35-42-4-3(a), -41-5-1; Count III,
child molesting, a Class C felony, I.C. § 35-42-4-3(b); Counts IV-V, contributing to the
delinquency of a minor, Class A misdemeanors, I.C. § 35-46-1-8; Count VI, possession of
marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; and Count VII, possession of
paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-8.3. On July 24, 2012, the State
moved to amend Counts I and II to attempted child molesting as Class A felonies, I.C. §
35-42-4-3(a)(1), which the trial court granted. On March 26, 2013, the State moved to
amend Count I, categorizing the charge back to attempted child molesting, a Class B
felony, I.C. § 35-42-4-3(a), which the trial court granted.
That same day, the trial court conducted a guilty plea hearing, at which Ascherman
pled guilty to Count I, as amended, and Counts IV-V and admitted the factual basis for his
plea. The trial court accepted Ascherman’s guilty plea, scheduled a sentencing hearing,
and ordered a pre-sentence investigation report (PSI).1
On April 25, 2013, the trial court held the first of two sentencing hearings.
Ascherman explained his problems with substance abuse, the work-related injury that put
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Subsequently, on May 1, 2013, the parties filed a written plea agreement in which Ascherman agreed to
plead guilty to one Count of Class B felony attempted child molesting and two Counts of Class A
misdemeanor contributing to the delinquency of a minor in exchange for the State’s dismissal of all other
Counts.
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him on disability, and expressed remorse for his crimes. When asked what he would think
if someone did the same thing to his daughter, Ascherman first replied that each case is
“totally different” but later admitted that he would not want it to occur. (Transcript p. 38).
The State called Ascherman’s ex-wife, and L.S.’s mother, who explained the “irrevocable
harm” Ascherman had done not only to the victim, but to L.S., his own child. (Tr. p. 41).
She, along with the parents of other children who stayed the night at Ascherman’s, had
trusted him to take care of them. B.L.’s mother attended the hearing but did not testify.
The State also read a letter written by B.L., in which she graphically described
Ascherman’s molestation. In particular, B.L. alleged that she was “shaking and scared”
and that Ascherman made her disrobe, fondled her breasts, performed oral sex on her, and
“made [her] suck his thing.” (Tr. pp. 44-45).
On May 1, 2013, the trial court held a sentencing hearing. Reviewing Ascherman’s
criminal history, the trial court noted his three prior convictions for battery, operating a
vehicle while intoxicated and endangering others (OWI), and operating a vehicle with a
suspended license. It found that Ascherman had “a long history of substance abuse,” yet
disputed his claim that he never sought treatment, citing a document attesting to
Ascherman’s month-long participation in after-care following his OWI conviction and the
PSI which described him as reluctant to seek counseling. (Tr. p. 51). Because Ascherman
admitted to daily marijuana use and to providing the drug to L.S. and B.L., the trial court
declined to find his substance abuse as a mitigating factor. Although Ascherman had
advanced his voluntary guilty plea and remorse as mitigating factors, the trial court noted
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that Class A felony attempted child molesting and other charges were dismissed in
exchange for his plea. Expressly identifying “the impact on both victims,” the “totality of
circumstances,” and the “violation of both victim’s trusts” as aggravating circumstances,
the trial court concluded that the impact from Ascherman’s crimes went “beyond what
would normally be expected in this type of crime.” (Tr. pp. 52-53). Further, the trial court
citied B.L.’s letter and described that B.L. was “shaking, scared and crying” and that
Ascherman had “threatened her to be quiet” while he attempted to commit child molesting.
(Tr. p. 53). Despite the absence of testimony from B.L.’s mother, the trial court stated,
“The victim’s mother testified to the continuing emotional impact on the victim.” (Tr. p.
53). Finding that the aggravators outweighed the mitigators, the trial court sentenced
Ascherman to an executed sentence of twenty years on Count I and to one-year sentences
each on Counts IV-V, with the sentences to run concurrently. That same day, the trial court
issued its judgment of conviction and written sentencing order, reiterating most of the trial
court’s oral sentencing statement. While deleting any reference to B.L.’s mother’s
testimony, the Order cited to that portion of B.L.’s letter which alleged that Ascherman
made her perform oral sex on him and Ascherman’s “prior failure to comply with [c]ourt
ordered treatment.” (Appellant’s App. p. 72).
Ascherman now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Abuse of Discretion
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Ascherman first argues that the trial court abused its discretion by aggravating his
sentence for Class B felony attempted child molesting based on factors unsupported by the
record. As long as a sentence is within the statutory range, it is subject to review only for
an abuse of discretion. Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or the reasonable, probable,
and actual deductions to be drawn therefrom. Id. One way in which a trial court may abuse
its discretion is by entering a sentencing statement that explains the reasons for imposing
a sentence, including aggravating and mitigating factors, which are not supported by the
record. Id. at 490-91.
Ascherman challenges the validity of three reasons provided by the trial court, in
either its oral sentencing statement or its written sentencing order, to enhance his sentence:
(1) B.L.’s letter where she alleged that Ascherman had made her perform oral sex; (2) the
testimony of B.L.’s mother; and (3) his “failure to comply with [c]ourt ordered treatment.”
(Appellant’s App. p. 72). Regarding B.L.’s letter, we note that victim impact statements
which delve “into substantive, unsworn, and otherwise unsupported allegations of other
misconduct” require caution when assessing their weight and the defendant is without an
opportunity to respond. Cloum v. State, 779 N.E.2d 84, 93 (Ind. Ct. App. 2002). Although
containing a narrative on the impact of the crime, B.L.’s letter also contained unsupported
allegations of additional criminal conduct which the trial court cited in its written
sentencing order. Similarly, the trial court cited the testimony of B.L.’s mother in its oral
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sentencing statement, despite the fact that she did not testify. Finally, the record does not
support the trial court’s written sentencing statement that Ascherman failed to comply with
court-ordered treatment. By considering the foregoing as aggravators, the trial court
abused its discretion.
When a trial court abuses its discretion in finding an aggravating circumstance, we
will nonetheless affirm the sentence if we can say with confidence that the trial court would
have imposed the same sentence even if it had not considered the improper aggravator.
Alves v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009). Even when a trial court improperly
applies an aggravator, a sentence enhancement may be upheld if other valid aggravators
exist. Walter v. State, 727 N.E.2d 443, 447 (Ind. 1999). Further, a single aggravating
circumstance may be sufficient to support an enhanced sentence. Id. at 448. Here, the trial
court stressed the position of trust in which Ascherman had been placed and that
“marijuana was given to both girls prior to the attempted molestation” as aggravating
factors. (Appellant’s App. p. 72). Therefore, we can say with confidence that the trial
court would have imposed the same sentence even if it had not considered the additional
aggravators cited in its oral and written sentencing order.
II. Nature of Offense and Character of Offender
Ascherman next argues that his sentence was inappropriate in light of the nature of
the offense and his character. Admitting the gravity of his crimes, he requests us to reduce
his maximum Class B felony sentence to the advisory sentence of ten years. Under Indiana
Appellate Rule 7(B), this court may revise a sentence authorized by statute if, after due
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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. Childress v. State,
848 N.E.2d 1073, 1079-80 (Ind. 2006). Although this court is not required to use “great
restraint,” we nevertheless exercise deference to a trial court’s sentencing decision, both
because Appellate Rule 7(B) requires that we give “due consideration” to that decision and
because we recognize the unique perspective a trial court has when making decisions.
Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App. 2007). 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). The burden is on the defendant to persuade us that his sentence is
inappropriate. Childress, 848 N.E.2d at 1073.
A Class B felony carries a sentence ranging from six to twenty years, with an
advisory sentence of ten years. See I.C. § 35-50-2-5. Because the trial court sentenced
Ascherman to twenty years on the Class B felony attempted child molesting, he received
the maximum sentence possible.
In regards to the nature of his offense, Ascherman argues that his crime is no more
egregious than the typical offense already accounted for by the legislature when
establishing the advisory sentence for child molesting. We disagree. Ascherman offered
marijuana to both L.S. and B.L., both of whom were thirteen-years old. Ascherman took
advantage of the girls’ trust by sleeping with the girls in the same bed then attempted to
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molest B.L. after L.S. fell asleep. Further, we cannot ignore the impact Ascherman’s
crimes had on B.L., her family, as well as his own daughter, his ex-wife, and the parents
of the other girls who had spent the night there. The nature of the offense thus demonstrates
that Ascherman’s crime well exceeded the typical offense.
Turning to his character, Ascherman argues that his sentence is inappropriate
because of his minimal criminal history and his need for rehabilitation. In particular,
Ascherman asserts that he is not a “career criminal.” (Appellant’s Br. p. 13). The PSI
showed that Ascherman had three prior misdemeanor convictions, including battery and
operating a vehicle while intoxicated and endangering a person. Although not felonies,
these crimes illustrate an escalated disregard for others. Further, Ascherman asserts that
he “never had the opportunity to try to correct his aberrant behavior before being sent to
prison.” (Appellant’s Br. p. 13). However, the PSI records that Ascherman was sent to
“aftercare” following his OWI conviction and was “hostile” and “resistant” to treatment.
(Appellant’s App. p. 94). The PSI also states that Ascherman “does not believe he needs
AA or substance abuse counseling,” despite his admitted daily use of marijuana and his
proffered excuse that he was unconscious when he attempted to molest B.L. (Appellant’s
App. p. 94). In sum, Ascherman has not met his burden to show that the nature of his
offense or Ascherman’s character render his sentence inappropriate.
CONCLUSION
Based on the foregoing, while the trial court abused its discretion by considering
improper aggravators, because we can say with confidence that the trial court would have
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imposed the same sentence even if it had not considered three improper aggravators, we
need not remand for re-sentencing. Further, Ascherman’s sentence is not inappropriate in
light of the nature of the offense and the character of the offender.
Affirmed.
ROBB, C. J. and KIRSCH, J. concur
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