MEMORANDUM DECISION
Aug 04 2015, 9:27 am
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
Richard Walker Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin E. McGuire, August 4, 2015
Appellant-Defendant, Court of Appeals Cause No.
48A02-1501-CR-23
v. Appeal from the Madison Circuit
Court
Cause No. 48C06-1312-FA-2416
State of Indiana,
Appellee-Plaintiff. The Honorable Dennis D. Carroll,
Judge
Barnes, Judge.
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Case Summary
[1] Dustin McGuire appeals his eighty-year sentence for three counts of Class A
felony child molesting and one count of Class C felony child molesting. We
affirm.
Issue
[2] McGuire raises one issue, which we restate as whether his sentence is
inappropriate.
Facts
[3] McGuire is the father of D.M. and began molesting D.M. in 2012, when D.M.
was five or six years old. The molestation continued until 2013 when D.M.
reported the abuse to a teacher. D.M. described McGuire performing anal and
oral sex on D.M., D.M. performing oral sex on McGuire, and D.M. fondling
McGuire for McGuire’s sexual gratification. D.M. indicated that the
molestation was ongoing and had occurred at least ten times.
[4] On December 19, 2013, the State charged McGuire with three counts of Class
A felony child molesting and one count of Class C felony child molesting.
McGuire proceeded to trial, and after a jury was selected and D.M. and his
sister testified, McGuire pled guilty as charged without the benefit of a plea
agreement. The trial court sentenced McGuire to forty years on each of the
Class A felony convictions and to six years on the Class C felony conviction.
The trial court ordered two of the Class A felony convictions to be served
consecutively and the remaining Class A felony and Class C felony convictions
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to be served concurrently for a total sentence of eighty years. McGuire now
appeals.
Analysis
[5] McGuire argues that his eighty-year sentence is inappropriate. Indiana
Appellate Rule 7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely”
deferential to a trial court’s sentencing decision, we still must give due
consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. “Additionally, a defendant bears
the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[6] The principal role of Appellate Rule 7(B) 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). We “should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
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the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224.
[7] McGuire argues that the nature of the offenses does not require such a lengthy
sentence because he did not beat or severely brutalize D.M. and did not use
excessive force or injure D.M. Be that as it may, McGuire engaged in anal and
oral intercourse with his dependent son and required D.M. to fondle him.
D.M. was five or six years old when the abuse began, and it occurred at least
ten times and continued for at least a year. D.M. described the anal intercourse
as painful and having diarrhea afterward. D.M. also described his younger
sister interrupting the abuse on one occasion and McGuire threatening to whip
D.M. if he told anyone about the abuse. Despite the lack of excessive force, we
are not convinced the nature of the offense warrants a reduction of McGuire’s
sentence.
[8] Regarding McGuire’s character, we acknowledge that he pled guilty and
apologized for his actions. He did so, however, only after the State prepared for
trial, a jury was empaneled, and D.M. and his sister testified against their father
in open court. Under these circumstances, McGuire’s guilty plea sheds little
positive light on his character.
[9] As for McGuire’s claim of poor mental health based on his anxiety, depression,
and a seizure disorder, he offers no insight as to how his mental health
impacted his ability to appreciate the wrongfulness of his actions. In fact, the
record indicates that McGuire completed high school and that his medication
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did not affect his ability to think clearly at the time of his guilty plea. Further,
the trial court found nothing about McGuire’s mental health issues “that
interferes with his ability to comprehend these proceedings, be responsible for
his own behavior and his responsibility to perform that’s consistent with what’s
expected of people.” Tr. p. 48. McGuire’s mental health issues do not render
his sentence inappropriate.
[10] Regarding his criminal history, McGuire describes it as “minimal” because it
consists of a single Class A misdemeanor conviction from 2011. Appellant’s
Br. p. 10. A more thorough investigation, however, reveals that McGuire was
charged with Class D felony battery resulting in bodily injury and Class D
felony strangulation in an incident also involving D.M. McGuire pled guilty to
the strangulation allegation and was granted alternative misdemeanor
sentencing, reducing the offense to a Class A misdemeanor. Although
McGuire’s criminal history is not extensive, it does not reflect positively on his
character as it relates to the current offenses against D.M. and previous leniency
in sentencing.
[11] Finally, McGuire compares his case to Carter v. State, 31 N.E.3d 17, 25 (Ind. Ct.
App. 2015), in which Carter was accused of molesting his young stepson and
convicted of three counts of Class A felony child molesting and two counts of
Class C felony child molesting and sentenced to ninety-eight years. After
analyzing the nature of the offense and the character of the offender, a panel of
this court concluded that Carter’s sentence was inappropriate and revised his
sentence to sixty-eight years. Carter, 31 N.E.3d at 33. The Carter analysis,
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however, does not compel a reduction of McGuire’s sentence where McGuire
was D.M.’s father, not his step-father, D.M. was slightly younger than the
victim in Carter, and McGuire’s criminal history includes a prior victimization
of D.M. Further, the sentence we revised in Carter was eighteen years longer
than the sentence McGuire received. For these reasons, we find Carter
distinguishable. When considering the nature of the offenses and the character
of the offender, McGuire has not established that his sentence is inappropriate.
Conclusion
[12] McGuire has not established that his eighty-year sentence is inappropriate. We
affirm.
[13] Affirmed.
Riley, J., and Bailey, J., concur.
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