MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 22 2017, 10:05 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Steven E. Ripstra Curtis T. Hill, Jr.
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald L. Tolliver, March 22, 2017
Appellant-Defendant, Court of Appeals Case No.
63A05-1610-CR-2321
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Judge
Appellee-Plaintiff. Trial Court Cause No.
63C01-1604-F5-250
Mathias, Judge.
[1] Ronald L. Tolliver (“Tolliver”) pleaded guilty in Pike Circuit Court to Level 5
felony child solicitation and was sentenced to the advisory term of three years
of incarceration. Tolliver appeals and presents two issues for our review, which
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we restate as: (1) whether the trial court abused its discretion when it failed to
consider certain circumstances as mitigating, and (2) whether Tolliver’s three-
year sentence is inappropriate in light of the nature of the offense and the
character of the offender.
[2] We affirm.
Facts and Procedural History
[3] In late March 2016, Tolliver, who was then sixty-eight years old, participated in
an internet chatroom for teenagers. In this chatroom, he started a chat
conversation with “Maddie,” who identified herself as a thirteen-year-old girl.
Maddie was actually a screen name used by Petersburg Police Department
Sergeant Chad McClellan (“Officer McClellan”). Tolliver soon began to chat
with Maddie about sexual topics. He asked Maddie if she masturbated and
encouraged her to do so because it felt good. He also informed Maddie that he
masturbated daily and had masturbated since he was eleven years old. Tolliver
was concerned that Maddie’s mother might see their conversations and made
sure that Maddie would not tell her mother about Tolliver’s chat. Tolliver
eventually admitted to Maddie that he was sixty-eight years old and told
Maddie that she could view him as a grandfather.
[4] Nevertheless, Tolliver’s interest in Maddie was not paternal. He told her how to
masturbate, crudely telling her where to find her clitoris. He also asked if she
had small breasts and told her that he liked small breasts. Tolliver told Maddie
that he loved her and that she was beautiful. Tolliver asked Maddie not to put
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on any underwear after showering and again encouraged her to masturbate.
Tolliver also tried to get Maddie to videochat with him, but she told him that
she did not have a camera on her phone. He then told her that he liked to be
watched while masturbating and that she did not need a camera to watch him.
He then sent her video of him masturbating.
[5] On April 4, 2016, the State charge Tolliver with Level 5 felony child
solicitation. On August 15, 2016, Tolliver pleaded guilty as charged. A
sentencing hearing was held on September 6, 2016. At this hearing, Tolliver
presented evidence that he was had been honorably discharged from the Army
and had been fully employed. He had no criminal history and had health
problems that resulted in the amputation of the lower portion of his right leg.
He also had a bypass to save his right leg and a triple coronary bypass. Tolliver
testified that his sister and forty-one-year-old son had recently died.
[6] At the conclusion of the sentencing hearing, the trial court pronounced sentence
as follows:
The Court having considered the Pre[-]Sentence Investigation
[report], having considered arguments of counsel and the
evidence presented at this hearing. By way of aggravating factors,
the Court finds that the IRAS assessment lists the defendant as a
high risk to reoffend. IRAS, while everything else appears to be
low, has a characterization concerning the nature and the
circumstances of the particular offense. And that’s the reason for
the high risk to reoffend here. The Court by mitigating
circumstances, finds that the defendant has plead guilty, saved
the Court’s time and resources. That he has no prior criminal
history and has led a law-abiding life. So the Court considers
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then the circumstances of this particular case and the Court
considers the Pre[-]Sentence [report] and all the factors listed,
considered the character of the defendant, considered the
defendant’s statement, in particularly, that while he accepted
responsibility and plead guilty, he continues to blame the officer
for what happened here. At the same time he knew that what he
did was wrong and he’s an adult and he’s responsible for his
actions. The Court tries to determine the appropriate sentence in
the cause and finds that probation and community corrections in
this case are not viable alternatives. And therefore the Court
sentences the defendant as follows: to an advisory sentence of
three (3) years in the Indiana Department of Corrections. The
defendant will receive credit for a hundred fifty-three (153) actual
days, from April 7, 2016 through September 6, 2016, for a total
of a hundred fifty-three (153) days. And on a three (3) for one (1)
good time, that’s fifty-one (51) good time credit days. The
defendant is to register as a sex offender.
Tr. pp. 91-92. Tolliver now appeals.
Discussion and Decision
[7] Tolliver first argues that the trial court abused its discretion by failing to
consider certain mitigating factors. We review a sentence that is within the
statutory range only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007). The trial court abuses its discretion if its 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. A trial court abuses its discretion by: (1) failing to enter a
sentencing statement, (2) finding aggravating or mitigating factors unsupported
by the record, (3) omitting mitigating factors clearly supported by the record
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and advanced for consideration, or (4) giving reasons that are improper as a
matter of law. Id. at 490-91. When considering aggravating and mitigating
factors, the relative weight given to a factor is not available for appellate review.
Id. at 493-94.
[8] Tolliver claims that the trial court erred by failing to consider certain mitigating
factors that he claims were clearly supported by the record, such as his health
problems, military service, and lack of a criminal history. He also claims that
the trial court abused its discretion by considering his IRAS score as an
aggravator. However, even if we assume arguendo that Tolliver is correct and
that the trial court did abuse its discretion in sentencing Tolliver, this would not
require us to remand for resentencing.
[9] Even if we conclude that a trial court has abused its discretion in sentencing, we
will not remand for resentencing if the sentence imposed is not inappropriate.
Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013), trans. denied; Williams
v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013) (citing Windhorst v. State,
868 N.E.2d 504, 507 (Ind. 2007)); Chappell v. State, 966 N.E.2d 124, 134 n.10
(Ind. Ct. App. 2012), trans. denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind.
Ct. App. 2007), trans. denied. As discussed in full below, Tolliver’s advisory
sentence of three years is not inappropriate, and remand is therefore
unnecessary.
[10] Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of a sentence imposed by the trial court. Trainor v.
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State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing
Anglemyer, 868 N.E.2d at 491). This authority is implemented through Indiana
Appellate Rule 7(B), which provides that the court on appeal “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.”
[11] Still, we must and should exercise deference to a trial court’s sentencing
decision because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Id. Although we have the power to
review and revise sentences, the principal role of appellate review should be to
attempt to “leven the outliers” and identify some guiding principles for trial
courts and those charged with improvement of the sentencing statutes, but not
to achieve what we perceive to be a “correct” result in each case. Fernbach v.
State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell
v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not
whether another sentence is more appropriate; rather, the question is whether
the sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344
(Ind. Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that
the sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[12] Here, Tolliver pleaded guilty to committing a Level 5 felony. The minimum
sentence for a Level 5 felony is one year, the maximum is six years, and the
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advisory sentence is three years. Ind. Code § 35-50-2-6(b). As noted above, the
trial court here sentenced Tolliver to the advisory sentence of three years. Since
the advisory sentence is the starting point our General Assembly has selected as
an appropriate sentence for the crime committed, the defendant bears a
particularly heavy burden in persuading us that his sentence is inappropriate
when the trial court imposes the advisory sentence. Golden v. State, 862 N.E.2d
1212, 1216 (Ind. Ct. App. 2007), trans. denied. This is a burden that Tolliver has
failed to meet.
[13] Considering the nature of the offense, Tolliver notes that there was no child
victim in this case, as “Maddie” was actually an adult police officer. Be that as
it may, Tolliver’s behavior, as detailed in the chat log, was particularly
disturbing. His behavior toward what he thought was a thirteen-year-old girl
was reprehensible. He attempted to befriend the child, telling her to consider
him like a grandfather. He then encouraged the child to masturbate, asked what
she was wearing, told her not to wear underwear, and asked her to send him
photos of himself. Tolliver used a webcam to masturbate so that what he
thought was a child could watch him. The nature of Tolliver’s offense does
nothing to convince us that his advisory sentence was inappropriate.
[14] Turning to the character of the offender, Tolliver notes that he had no criminal
history. He also reemphasizes his health problems and his service in the Army.
Despite his lack of a criminal history, however, Tolliver admitted at sentencing
that this was not the first time he had done something of this nature. In fact, he
admitted during the presentence investigation that he attempted to talk to
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underage girls online three to five times in the past three years. Tr. pp. 50-51;
Appellant’s App. pp. 33. Despite his claims of remorse, Tolliver stated in his
version of the offense that he was “led on” by Officer McClellan. This claim is
belied by the chat log, which clearly shows that Tolliver was grooming what he
believed to be a child to perform sexual acts. Certainly, Tolliver is not among
the worst offenders. This is a reason why Tolliver was not sentenced to a term
greater than the advisory sentence, but it is not a reason for us to revise his
sentence to be below the advisory sentence.
[15] Affirmed.
Pyle, J., concur.
Baker, J., concurs with a separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Ronald L. Tolliver, Court of Appeals Case No.
63A05-1610-CR-2321
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Baker, Judge, concurring.
[16] I fully concur with the majority opinion. I write separately to note that, but for
Tolliver’s ill-advised admission that this was not the first time he has done
something of this nature, I would have been compelled to reduce his sentence
below the advisory three-year term. He is a 68-year-old veteran who is an
amputee and has recently lost his son and his sister. Were it not for his
admission that he has committed this type of act before, I believe the advisory
term would have been too high. On the record before us, however, I concur
with the majority and agree that we should affirm.
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