Harold Randy Hughes v. State of Indiana (mem. dec.) ( 2015 )


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  •       MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                 Dec 09 2015, 7:21 am
    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
    Marce Gonzalez, Jr.                                      Gregory F. Zoeller
    Dyer, Indiana                                            Attorney General of Indiana
    Christina D. Pace
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Harold Randy Hughes,                                     December 9, 2015
    Appellant-Defendant,                                     Court of Appeals Case No.
    45A03-1502-CR-56
    v.                                               Appeal from the Lake Superior
    Court
    State of Indiana,                                        The Honorable Salvador Vasquez,
    Appellee-Plaintiff                                       Judge
    Trial Court Cause No.
    45G01-1309-FB-82
    Mathias, Judge.
    [1]   Harold Randy Hughes (“Hughes”) pleaded guilty in Lake Superior Court to
    Class C felony sexual misconduct with a minor. He was ordered to serve seven
    Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015        Page 1 of 6
    and one-half years in the Department of Correction. Hughes appeals and argues
    that his 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]   Hughes, who was sixty years old, engaged in sexual misconduct with fourteen-
    year-old N.J. Hughes met N.J. at a festival in Dyer, Indiana during the summer
    of 2013. Shortly thereafter, they began communicating via text messages and
    telephone calls. On August 10, 2013, Hughes arranged to pick N.J. up, and they
    returned to Hughes’ residence where Hughes engaged in sexual deviate conduct
    with N.J.
    [4]   N.J.’s guardian tracked her to Hughes’ residence through her cell phone.
    Hughes refused to allow N.J.’s guardian into the residence. Hughes told her
    guardian to get off of his property. N.J.’s guardian returned to his vehicle and
    called the police.
    [5]   When the police arrived, Hughes told the officer that he and N.J. had done
    nothing wrong and he was simply showing her how to use Facebook. Police
    officers then entered Hughes’ residence, located N.J. in Hughes’ bedroom, and
    returned her to her guardian.
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    [6]    A no-contact order was entered against Hughes naming N.J. as the protected
    person. One week after N.J. was found at Hughes’ residence, Hughes violated
    the protective order and met N.J. in a park.
    [7]    In September 2013, Hughes was charged with Class B felony sexual misconduct
    with a minor. Hughes later agreed to plead guilty to Class C felony sexual
    misconduct with a minor.
    [8]    The sentencing hearing was held on January 16, 2015. At the hearing, the State
    entered portions of N.J.’s diary as an exhibit. In the diary, N.J. described
    numerous sex acts between herself and Hughes. Also, N.J.’s guardian testified
    to the negative effect Hughes’ criminal conduct has had on his family and N.J.,
    who was residing in a group home on the date of the sentencing hearing.
    [9]    Hughes argued that he should be given a minimum sentence and claimed that
    fourteen-year-old N.J. was the aggressor in her relationship with sixty-year-old
    Hughes. Tr. p. 45. Furthermore, Hughes argued he just enjoyed the attention
    from N.J.; Hughes’ criminal sexual conduct has not had an impact on N.J.; and
    that N.J. “still indicates that she wants to have a relationship with him.” Tr. pp.
    51-52. Hughes also cited medical issues and the assistance he provides to his
    mother as reasons to impose a minimum sentence.
    [10]   Before imposing his sentence, the trial court observed that Hughes is “extremely
    manipulative” and found his “character to be dishonest.” Tr. pp. 59-60. The
    court also noted Hughes was on probation for Class D felony operating while
    intoxicated when he committed this offense, and he was arrested for invasion of
    Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015   Page 3 of 6
    privacy for violating the no-contact order protecting N.J. The court also declined
    to find Hughes’ guilty plea to be a significant mitigating circumstance.
    Thereafter, the trial court ordered Hughes to serve a seven-and-one-half-year
    sentence executed in the Department of Correction. Hughes now appeals.
    Discussion and Decision
    [11]   Hughes argues that his seven-and-one-half-year sentence is inappropriate in
    light of the nature of the offense and the character of the offender. Even if a trial
    court acted within its statutory discretion in imposing a sentence, 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. State, 
    950 N.E.2d 352
    , 355–56 (Ind. Ct. App. 2011), trans. denied (citing Anglemyer v. State,
    
    868 N.E.2d 482
    , 490 (Ind. 2007)). 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.”
    [12]   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 level the outliers, and identify some guiding principles for trial courts
    and those charged with improvement of the sentencing statutes, but not to
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    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)).
    [13]   Under Appellate Rule 7(B), the appropriate question is not whether another
    sentence is more appropriate; rather, the question is whether the sentence
    imposed is inappropriate. Fonner 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. 
    Id. (citing Childress
    v. State, 
    848 N.E.2d 1073
    , 1080 (Ind. 2006)).
    [14]   Hughes’ seven-and-one-half-year sentence is six months less than the maximum
    eight-year sentence allowed for a Class C felony. See Ind. Code § 35-50-2-6(a)
    (“A person who commits a Class C felony (for a crime committed before July 1,
    2014) shall be imprisoned for a fixed term of between two (2) and eight (8)
    years, with the advisory sentence being four (4) years”).
    [15]   First, we conclude that the nature of Hughes’ offense is particularly heinous.
    Hughes was sixty years old when he committed sexual misconduct with
    fourteen-year-old N.J. After meeting N.J. at a festival, he communicated with
    her via numerous text messages and phone calls. On August 10, 2013, he
    arranged to pick her up and take her to his residence where he engaged in sex
    acts with the child. When N.J.’s guardian located her at Hughes’s residence,
    Hughes ordered her guardian off of his property. Police officers were required
    to intervene to remove N.J. from Hughes’ home.
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    [16]   At sentencing, the trial court observed that Hughes was manipulative and
    dishonest. He also demonstrated disregard for the law by violating a no-contact
    order against the victim in this case, which resulted in an invasion of privacy
    charge that was pending against him on the date of sentencing. Also, he was on
    probation for Class D felony operating while intoxicated when he committed
    this offense. Hughes also has a 2005 Class D felony conviction for operating
    while intoxicated and two misdemeanor convictions for the same conduct.
    [17]   Although pleading guilty to the charged offense generally reflects well on the
    defendant’s character, in this case the trial court assigned only minimal
    mitigating weight to Hughes’ guilty plea. The record reflects that Hughes’
    decision to plead guilty was likely a pragmatic one and not a true expression of
    remorse. As the trial court noted, the evidence against Hughes supported the
    Class B felony sexual misconduct charge, the original charge in this case, and
    when he agreed to plead guilty to the C felony, Hughes’s maximum sentence
    decreased from twenty years to eight years.
    [18]   For all of these reasons, we conclude that Hughes’ seven-and-one-half-year
    sentence is more than appropriate in light of the nature of the offense and the
    character of the offender.
    [19]   Affirmed.
    Baker, J., and Bailey, J., concur.
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