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 FILED
Aug 14 2012, 9:20 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. DENMAN GREGORY F. ZOELLER
Matheny Hahn Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BILLY D. TAYLOR, )
)
Appellant-Defendant, )
)
vs. ) No. 85A02-1112-CR-1195
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WABASH CIRCUIT COURT
The Honorable Robert R. McCallen, Judge
Cause No. 85C01-1104-FD-293
August 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Billy D. Taylor, Jr. appeals the sentence imposed after he pled guilty to failure to
comply with conditions related to his status as a sex offender.
We affirm.
ISSUE
Whether the two-year sentence imposed by the trial court is inappropriate.
FACTS
In 2009, Taylor was convicted of sexual misconduct with a minor, a class C
felony. As part of his sentence, Taylor was ordered to register as a sex offender, and he
did so in August of 2010. At the time he registered, Taylor was given a “Sex or Violent
Offender Registration Form” that listed the requirements for all sex or violent offenders.
One of the requirements stated that that “[i]f you change your principal address . . . you
must report IN-PERSON to each Sheriff’s Department having jurisdiction over [the
address] within 3 days of arriving in that county or counties.” (App. 82).
On October 21, 2010, Taylor reported a change of address to the Sheriff’s
Department and informed the department that his new address was 273 Falls Avenue,
Wabash, Indiana. On April 2, 2011, two law enforcement officers attempted to serve an
arrest warrant on Taylor at the listed addressed. The officers were informed that Taylor
2
had not lived at the address since February of 2011. Taylor was eventually located at his
Mother’s house.
The State charged Taylor with failing to register as a sex offender, a class D
felony.1 (App. 32). The State also “charged” Taylor with failing “to reside at the sex
offender’s registered address or location.”2 Id. Taylor pled guilty, and a sentencing
hearing was held.
At the sentencing hearing, Taylor’s counsel stated that Taylor had lost his job, was
evicted from his reported address, and had to move in with his mother. Taylor’s counsel
further stated that Taylor left a voicemail with the Sheriff’s Department to report his
change of address.
The State requested a two-year sentence due to Taylor’s criminal record, while
Taylor requested the trial court impose a one and a half year sentence with nine months
suspended. The trial court found that Taylor’s guilty plea and his prospects for future
employment were mitigating factors. The trial court noted Taylor’s criminal record as an
aggravator, but it was most concerned by Taylor’s previous failures to comply with terms
of probation. The trial court imposed a two-year sentence to be served consecutive to a
sentence in Miami County.
1
Ind. Code § 11-8-8-17(a).
2
It appears that this “charge” merely reiterates the condition stated in I.C. § 11-8-8-11
3
DECISION
Taylor contends that the two-year sentence is inappropriate. He argues that he is
“not the worst type of offender and [does] not deserve to have a non-suspended enhanced
sentence of two (2) years.” Taylor’s Br. at 6. He also argues that the facts illustrate that
there was nothing particularly egregious about his offense, as he did take action to inform
the Sheriff’s Department of his new address. Taylor notes the mitigating circumstances
cited by the trial court, and he contends that his criminal record—consisting of three
misdemeanors and the class C felony sexual misconduct with a minor—is “relatively
minor.” Id.
The revision of a sentence is authorized by the Indiana Constitution through
Indiana Appellate Rule 7(B), which provides that we “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.” In determining the appropriateness of a sentence, a court of review may
consider any factors appearing in the record. Schumann v. State, 900 N.E.2d 495, 497
(Ind. Ct. App. 2009). The “nature of the offense” portion of the appropriateness review
begins with the advisory sentence. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),
clarified on reh’g by Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007); Richardson v.
State, 906 N.E.2d 241, 247 (Ind. Ct. App. 2009). The “character of the offender” portion
of the sentence review refers to general sentencing considerations and the relevant
4
aggravating and mitigating circumstances. Major v. State, 873 N.E.2d 1120, 1130 (Ind.
Ct. App. 2007), trans. denied. A defendant bears the burden of persuading us that his
sentence is inappropriate in light of both the nature of the offense and his character.
Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).
Indiana Code section 11-8-8-17(a) provides that a sex offender commits a class D
felony when he knowingly or intentionally does not reside at his registered address.
Indiana Code section 11-8-8-11 requires that a sex offender who changes his principal
residence to report in person “to the local law enforcement authority having jurisdiction
over the sex offenders . . . current principal address.” Indiana Code section 35-50-2-7
provides that a person who commits a class D felony “shall be imprisoned for a fixed
term of between six (6) months and three (3) years, with the advisory sentence being one
and one-half (1 ½) years.” Here, Taylor admitted that he did not live at the registered
address and failed to make an in-person report of his change of address. However, he did
inform the Sheriff’s Department by telephone of his change of address. The trial court
made no finding that would support enhancement based solely upon the nature of the
offense.
With regard to the character of the offender, the trial court found that Taylor had
failed in other cases to abide by the conditions of probation. Indeed, the record reveals
that (1) Taylor’s current offense is a violation of a condition of his current probation; (2)
he violated probation on at least two other occasions; and (3) four petitions to revoke
5
probation have been filed against Taylor in total. (App. 63). Apparently, the trial court
concluded that despite the guilty plea and Taylor’s chances of obtaining immediate
employment, a six-month enhancement was necessary to assist Taylor in learning the
importance of complying with the conditions imposed upon his post-imprisonment
activities. Furthermore, even though Taylor claimed that he achieved a “GED with
honors,” there is a notable lack of documentary evidence in the record by Taylor to
support his claim. In fact, a counselor from Taylor’s high school stated to the probation
officer who prepared the Presentence Investigation Report that there is no record that he
completed high school or a GED program.
It is not within our discretion to determine whether another sentence is more
appropriate but rather “whether the sentence imposed is inappropriate.” See King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Given Taylor’s prior failures to comply
with post-imprisonment conditions, we cannot say that the trial court’s six-month
enhancement renders Taylor’s sentence inappropriate.
Affirmed.
NAJAM, J., concurs.
RILEY, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
BILLY D. TAYLOR, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 85A02-1112-CR-1195
)
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
RILEY, Judge, dissenting
I respectfully dissent from the majority’s decision to affirm the trial court’s
imposition of Taylor’s two-year sentence. As noted, pursuant to Indiana Appellate Rule
7(B), we 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
7
nature of the offense and the character of the offender. Under the circumstances before
me, I conclude that Taylor’s sentence is inappropriate.
Taylor’s offense is failing to register as a sex offender, a Class D felony. While
Taylor does not proclaim his innocence in this regard, he also did not intentionally hide
from the police. After losing his job, being evicted from his home, becoming depressed,
and moving into his mother’s residence, he tried to comply with the registration
requirement by calling the sheriff’s department and leaving a voice mail with his changed
address. By pleading guilty to the charge, he did not waste judicial resources.
Taylor’s criminal history is minimal. Besides the Class D felony sexual battery,
which provided the basis for the registration requirement, he has been convicted of three
misdemeanors, unrelated in nature to the present conviction. While he was incarcerated
for the Class D felony, he earned his GED with honors and received a shining star
certificate. He has been sober for three years and has turned his life around, with a
prospective employment at Metal Source to support his family. In light of all the
progress Taylor has made in the previous years, incarceration for an offense—which was
clearly not intentionally committed—would serve no purpose. I would reduce Taylor’s
sentence to one and one-half years with nine months suspended.
8