James M. Lierl v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
May 13 2016, 8:18 am
Pursuant to Ind. Appellate Rule 65(D),
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
Mark I. Cox Gregory F. Zoeller
The Mark I. Cox Law Office, LLC Attorney General of Indiana
Richmond, Indiana
Monika Prekopa
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James M. Lierl, May 13, 2016
Appellant-Defendant, Court of Appeals Case No.
24A01-1509-CR-1406
v. Appeal from the Franklin Circuit
Court
State of Indiana, The Honorable J. Steven Cox,
Appellee-Plaintiff Judge
Trial Court Cause No.
24C01-1411-F4-1343
Baker, Judge.
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[1] James Lierl appeals his conviction for Child Molesting, a Level 4 Felony.1 Lierl
argues that the ten-year sentence imposed by the trial court is inappropriate in
light of the nature of the offense and his character. Finding that his sentence is
not inappropriate, we affirm.
Facts
[2] On the evening of August 9, 2014, Lierl went down to the basement of his
Franklin County residence, where his ten-year-old granddaughter, S.B., who
was visiting from Dallas, Texas, was sleeping. Lierl undressed S.B. and fondled
her while her sister was sleeping in the same bed. After S.B. and her family
returned to Dallas, she told her mother that Lierl had fondled her. Her mother
contacted Dallas police, who interviewed S.B. and sent recordings of the
interviews to the Indiana State Police.
[3] On November 18, 2014, Lierl was charged with Level 4 felony child molesting,
and on June 26, 2015, he pleaded guilty. On August 19, 2015, the trial court
sentenced Lierl to ten years, with two years suspended. Lierl now appeals.
Discussion and Decision
[4] The sole argument that Lierl raises on appeal is that his sentence is
inappropriate under Indiana Appellate Rule 7(B). Rule 7(B) states that this
1
Ind. Code § 35-42-4-3(b).
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Court “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.”
[5] According to our Supreme Court, the principal role of appellate review under
Rule 7(B) “should be to attempt to leaven the outliers . . . but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). Furthermore, the decision of the trial court “should receive
considerable deference.” Id. at 1222. The advisory sentence for a Level 4
felony is six years, with a possible range of two to twelve years imprisonment.
Indiana Code § 35-50-2-5.5. The trial court in this case chose to impose a
sentence of ten years, with two years suspended.
[6] While the nature of Lierl’s offense may not have been the worst of the worst,
his sentence was not inappropriate under Rule 7(B). The victim was only ten
years old when Lierl molested her, and Lierl violated the position of trust that
he held as the victim’s grandfather. See Hamilton v. State, 955 N.E.2d 723, 727
(Ind. 2011) (stating that a “harsher sentence is also more appropriate when the
defendant has violated a position of trust that arises from a particularly close
relationship between the defendant and the victim”).
[7] Turning to Lierl’s character, we find no reason to reduce his sentence. Lierl
argues that his sentence is inappropriate due to his involvement in the
community. Tr. p. 115-17. However, his son, Andrew, testified that he had
previously known that Lierl was fascinated with young girls between the ages of
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eight and twelve. Moreover, Andrew testified that he had also limited Lierl’s
exposure to Andrew’s minor children after Lierl inappropriately tickled a friend
of Andrew’s daughter. Tr. p. 133-36. In light of the nature of Lierl’s offense
and his character, the sentence imposed by the trial court was not inappropriate
under Rule 7(B).
[8] The judgment of the trial court is affirmed.
May, J., concurs, and Brown, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
James M. Lierl, Court of Appeals Cause No.
24A01-1509-CR-1406
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Brown, Judge, dissenting.
[9] I respectfully dissent as to the majority’s determination that Lierl’s sentence,
while not the maximum, is not inappropriate. The severity of Lierl’s offense is
accounted for in its level 4 felony classification, for which the legislature has
determined the advisory sentence to be six years. While Lierl violated his
position of trust to commit the offense and the victim suffers from emotional
trauma, this was a single occurrence involving a single victim. Moreover, Lierl
pleaded guilty to the offense, and it did not involve drugs, threats, alcohol, or
the use of violence, and it did not result in any physical injuries. (Appellant’s
App. at 5, 41) The presentence investigation report (“PSI”) shows that Lierl
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has no criminal history and that he was actively involved in his community
through a wide range of civic associations. (Appellant’s Confidential App. at
66-67, 69) The PSI shows that the Indiana Risk Assessment System places him
in the low risk to reoffend category. (Appellant’s Confidential App. at 68)
[10] Based upon the foregoing, I would reverse and remand with instructions to
impose a sentence of six years with two years suspended to supervised
probation.
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