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
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
YVETTE M. LaPLANTE GREGORY F. ZOELLER
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
Nov 24 2014, 9:32 am
IN THE
COURT OF APPEALS OF INDIANA
CHARLES CASE, II, )
)
Appellant-Defendant, )
)
vs. ) No. 82A04-1405-CR-248
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert J. Pigman, Judge
Cause No. 82D02-1206-FA-631
November 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Charles Case, II, appeals the forty-eight-year sentence imposed by the trial court
following his guilty plea to two counts of class A felony child molesting. Case requests that
we reduce his sentence pursuant to Indiana Appellate Rule 7(B). Concluding that Case has
failed to meet his burden to establish that his sentence is inappropriate in light of the nature
of the offenses and his character, we affirm.
Facts and Procedural History
Case is the father of a minor child, B.C. In June 2012, the Vanderburgh County
Department of Child Services contacted the Evansville Police Department regarding
allegations of sexual misconduct against Case made by B.C. Case subsequently admitted to
police that he repeatedly had sexual intercourse and oral sex with B.C. beginning in August
2004, when she was nine years old, and continuing until August 2006, when she was eleven
years old. Case admitted that he had sexual intercourse with B.C. more than twenty times
and that he forced her to perform oral sex on him more than twenty times.
The State charged Case with forty counts of class A felony child molesting and two
counts of class B felony incest. On March 6, 2014, Case pled guilty to two counts of class A
felony child molesting. Pursuant to the plea agreement, the State dismissed the remaining
forty charges. A sentencing hearing was held on May 16, 2014, and the trial court entered an
order that provides in relevant part:
Court now accepts the [Defendant’s] plea and finds the [Defendant] guilty of
Counts 1 and 2, both charging child molesting, both class A felonies and enters
judgment of conviction thereon. Court accepts the State’s limited sentence
recommendation. Argument is held. Court now sentences the [Defendant] on
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each count to the Indiana [Department] of Corrections [sic] for a period of
forty-eight (48) years. Said sentence to be executed. Sentences in Counts 1
and 2 to be served concurrent to each other. Court finds aggravating
circumstance to be the [Defendant’s] relationship with the victim and that this
is not an isolated incident. Court finds mitigating circumstances to be the
[Defendant’s] lack of a prior record and the [Defendant’s] mental health
condition. Court finds aggravating circumstances outweigh the mitigating
circumstances calling for a sentence in excess of the standard sentence.
Appellant’s App. at 26. This appeal ensued.
Discussion and Decision
Case invites this Court to reduce his forty-eight year sentence pursuant to 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, we find that the sentence “is
inappropriate in light of the nature of the offense and the character of the offender.” The
defendant bears the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[W]hether we regard a sentence as
appropriate at the end of the day turns on our sense of culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We recognize that
the “principal role of appellate review should be to attempt to leaven the outliers and to
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.” Id. at 1225.
Indeed, “[t]he question under 7(B) is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate.” King v. State, 894
N.E.2d 265, 268 (Ind. Ct. App. 2008).
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The sentencing range for a class A felony is between twenty and fifty years with the
advisory sentence being thirty years. Ind. Code § 35-50-2-4. The trial court sentenced Case
to concurrent sentences of forty-eight years for his two class A felonies, two years below the
maximum for just one offense. Case believes that this sentence is an outlier. We disagree.
Because Case does not delineate any arguments as relevant to either the nature of the
offenses or his character as necessary for a proper Appellate Rule 7(B) analysis, the State
argues that Case has waived appellate review of the appropriateness of his sentence. Indeed,
Case references only certain mitigating factors that he argues the trial court failed to properly
consider or give appropriate weight.1 This is troubling because our supreme court has
repeatedly made clear that inappropriate sentence claims are very different from claims that
the trial court abused its discretion during sentencing. King, 894 N.E.2d at 267 (citing
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218).
While we agree with the State that Case’s arguments are not well put, we will nevertheless
address the merits of his inappropriateness claim.
1
Case references the following factors that he alleges are mitigating: (1) that his crimes are not likely
to recur due to the victim’s current age; (2) that at forty-seven years old he is likely to respond positively to a
short period of incarceration; and (3) his guilty plea. Case makes no argument that the trial court failed to
consider these factors. Appellant’s App. at 81. Instead, it appears that Case is challenging the trial court’s
failure to find each of these factors mitigating and/or the court’s failure to assign sufficient mitigating weight to
these factors. It is well settled that a court is not obligated to accept a defendant’s claim as to what constitutes
a mitigating circumstance. Harman v. State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied.
Moreover, a trial court has no obligation to weigh aggravating and mitigating factors against each other, and an
appellant may not argue that the trial court erred by failing to “properly weigh” such factors. Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
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As for the nature of his offenses, Case repeatedly molested his young daughter for at least
two years. This was an abhorrent violation of the utmost position of trust. We are not
persuaded that Case’s sentence is inappropriate in light of the nature of his offenses.
Regarding his character, as we noted above, Case makes no specific argument that his
sentence is inappropriate in light of his character. His only arguments that appear even
remotely related to his character are the fact that he accepted responsibility for his crimes by
pleading guilty and his claim that he has not molested anyone else in the last seven years and
therefore it is “unlikely that he would start again after a period of incarceration.” Appellant’s
Br. at 6. Case’s guilty plea was clearly a pragmatic decision resulting in the dismissal of
forty additional charges and we do not consider it a reflection of good character. Similarly,
Case’s claim that he has not molested another child in the last seven years does not persuade
us that his sentence is an outlier. In sum, Case has not met his burden to demonstrate that his
forty-eight-year sentence is inappropriate, and we decline his invitation for sentence
reduction.
Affirmed.
RILEY, J., and MATHIAS, J., concur.
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