Khampaseuth O. Lothvilaythong v. State of Indiana (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any                                         Feb 09 2016, 8:06 am
    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
    Randy M. Fisher                                          Gregory F. Zoeller
    Deputy Public Defender                                   Attorney General of Indiana
    Leonard, Hammond, Thoma & Terrill
    Fort Wayne, Indiana                                      Katherine Modesitt Cooper
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Khampaseuth O.                                           February 9, 2016
    Lothvilaythong,                                          Court of Appeals Case No.
    Appellant-Defendant,                                     02A03-1507-CR-920
    Appeal from the Allen Superior
    v.                                               Court
    The Honorable Frances C. Gull,
    State of Indiana,                                        Judge
    Appellee-Plaintiff.                                      Trial Court Cause No.
    02D04-1407-FC-191
    Bradford, Judge.
    Case Summary
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016       Page 1 of 10
    [1]   On May 27, 2015, Appellant-Defendant Khampaseuth O. Lothvilaythong was
    convicted of one count of Class A felony child molesting and one count of Class
    C felony child molesting for acts committed against his daughter.
    Lothvilaythong was subsequently sentenced to an aggregate term of thirty-five
    years, all of which was ordered to be executed in the Department of Correction
    (“DOC”). On appeal, Lothvilaythong contends both that the trial court abused
    its discretion in sentencing him and that his sentence is inappropriate.
    Concluding otherwise, we affirm.
    Facts and Procedural History
    [2]   Lothvilaythong was born on April 2, 1978. He is the father of J.L., who was
    born on February 23, 2006. At all times relevant to the instant appeal, J.L.
    lived with her mother but had overnight visitation with Lothvilaythong every
    other weekend.
    [3]   More than once during weekend visitations occurring between January of 2011
    and March 11, 2012, Lothvilaythong pulled J.L.’s pants and underpants down
    and tickled her on her “private spot” where she would “pee.” Trial Tr. p. 34.
    Also during this period, Lothvilaythong insisted that J.L. bathe at his home.
    After J.L. finished bathing, Lothvilaythong would “smell [her] private and then
    kiss it” with his lips. Trial Tr. p. 37. Lothvilaythong told J.L. that if she told on
    him, he would spank her and lock her in a closet.
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 2 of 10
    [4]   Beginning when J.L. was between three and one-half and four-years old, she
    “always” told her mother that she had “butterflies in her stomach” before her
    visits with Lothvilaythong. Trial Tr. p. 76. J.L would “scream at the top of her
    lungs that she did not want to go with [Lothvilaythong].” Trial Tr. p. 77. At
    the time, however, J.L. would not tell her mother what had happened to make
    her not want to go to Lothvilaythong’s home. J.L.’s mother confronted
    Lothvilaythong, who denied that he had ever touched J.L. in an inappropriate
    manner.
    [5]   When J.L. was six years old, J.L.’s mother convinced J.L. to “tell [her] what
    was going on.” Trial Tr. p. 78. J.L. reported that Lothvilaythong had tickled
    her “coo-coo,” a term J.L. used to describe her genitals. Trial Tr. p. 78. J.L.’s
    mother confronted Lothvilaythong, who again denied ever having touched J.L.
    in an inappropriate manner. The next day, J.L.’s mother scheduled a doctor’s
    appointment for J.L. during which she reported the possible abuse. The matter
    was subsequently reported to the Department of Child Services (“DCS”).
    [6]   On July 9, 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged
    Lothvilaythong with Class C felony child molesting. The State subsequently
    amended the charging information to include a charge of Class A felony child
    molesting. On May 27, 2015, a jury found Lothvilaythong guilty of both Class
    A felony and Class C felony child molesting.
    [7]   On June 26, 2015, the trial court sentenced Lothvilaythong to a term of thirty-
    five years for the Class A felony conviction and a term of five years for the
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 3 of 10
    Class C felony conviction. The trial court ordered the terms “to be served
    concurrently” for an aggregate term of thirty-five years, all of which was to be
    executed in the DOC. Sent. Tr. p. 12. This appeal follows.
    Discussion and Decision
    [8]   On appeal, Lothvilaythong contends that the trial court abused its discretion in
    sentencing him. Lothvilaythong also contends that his aggregate thirty-five-
    year sentence is inappropriate in light of the nature of his offenses and his
    character. We will discuss each in turn.
    I. Abuse of Discretion
    [9]   Sentencing decisions rest within the sound discretion of the trial court and are
    reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 
    868 N.E.2d 482
    , 490 (Ind. 2007), modified on other grounds on reh’g, 
    875 N.E.2d 218
    (Ind. 2007). “An abuse of discretion occurs if the 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.
    (quotation omitted).
    One way in which a trial court may abuse its discretion is failing
    to enter a sentencing statement at all. Other examples include
    entering a sentencing statement that explains reasons for
    imposing a sentence—including a finding of aggravating and
    mitigating factors if any—but the record does not support the
    reasons, or the sentencing statement omits reasons that are
    clearly supported by the record and advanced for consideration,
    or the reasons given are improper as a matter of law. Under
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 4 of 10
    those circumstances, remand for resentencing may be the
    appropriate remedy if we cannot say with confidence that the
    trial court would have imposed the same sentence had it properly
    considered reasons that enjoy support in the record.
    
    Id. at 490-91
    .
    [10]   During the sentencing hearing, Lothvilaythong argued, and the trial court
    found, that his lack of criminal history was a mitigating factor. Lothvilaythong
    claims on appeal, however, that the trial court abused its discretion by failing to
    find the following to be additional significant mitigating factors: (1) the fact that
    he successfully completed programming through a parallel investigation by
    DCS into the matter and (2) his immigration status and the hardship associated
    with his possible future deportation.
    [11]   The finding of mitigating factors is discretionary with the trial court. Fugate v.
    State, 
    608 N.E.2d 1370
    , 1374 (Ind. 1993) (citing Graham v. State, 
    535 N.E.2d 1152
    , 1155 (Ind. 1989)). The trial court is not required to find the presence of
    mitigating factors. 
    Id.
     (citing Graham, 535 N.E.2d at 1155). Further, the trial
    court is not required to weigh or credit the mitigating evidence the way
    appellant suggests it should be credited or weighed. Id. (citing Hammons v.
    State, 
    493 N.E.2d 1250
    , 1255 (Ind. 1986)). Likewise, if the trial court does not
    find the existence of a mitigating factor after it has been argued by counsel, the
    trial court is not obligated to explain why it has found that the factor does not
    exist. 
    Id.
     (citing Hammons, 493 N.E.2d at 1254-55).
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 5 of 10
    A. Completion of DCS Programming
    [12]   Lothvilaythong argues that the trial court abused its discretion in failing to find
    that he had completed certain services offered through DCS to be a mitigating
    factor. Lothvilaythong does not cite to any case law indicating that completion
    of DCS programming should be considered as a valid mitigating factor but
    argues that, in this case, his “successful completion of [the DCS] programming
    was significant and clearly supported by the record and therefore should be
    considered a mitigating circumstance.” Appellant’s Br. p. 10. Lothvilaythong,
    however, fails to explain why his completion of the DCS programming was
    significant.
    [13]   In addition, Lothvilaythong relied on argument by his trial counsel at
    sentencing as the evidence of completion which was the following:
    I spoke with the attorney that represented him in [the DCS]
    proceedings yesterday and he confirmed what was already
    represented to me previously by my client, that he had
    successfully negotiated all the programs that [DCS] had put in
    place for him as a result on their investigation.
    Sent. Tr. p. 5. In sentencing Lothvilaythong, the trial court specifically stated
    that it did not find the fact that Lothvilaythong “successfully completed the
    requirements of the family court” to be a mitigating factor. Sent. Tr. p. 11.
    [14]   In light of the fact that Lothvilaythong has failed to explain how his completion
    of DCS programming was significant, presented little evidence indicating that
    he had actually completed the required DCS programming, or failed to cite to
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 6 of 10
    any relevant authority indicating that his completion of DCS programing
    should be considered to be a mitigating factor, we conclude that Lothvilaythong
    has failed to demonstrate that the trial court’s finding regarding his completion
    of DCS programming constituted an abuse of discretion.
    B. Immigration Status and Potential Future Deportation
    [15]   Lothvilaythong also argues that the trial court abused its discretion in failing to
    find his immigration status and the hardship associated with his possible future
    deportation to be a mitigating factor. In making this argument, Lothvilaythong
    did not present any evidence demonstrating that he would be, or would likely
    be, deported as a result of his conviction. His counsel merely noted that it was
    a possibility and argued that Lothvilaythong’s possible future deportation
    would amount to a hardship on him.
    [16]   On appeal, Lothvilaythong reiterates the argument that his possible future
    deportation would amount to a hardship to him. He also argues that because
    an individual’s trial counsel can be found to be ineffective if said counsel fails to
    advise their non-United States citizen client that pleading guilty may carry the
    risk of deportation, one’s immigration status and the potential for possible
    future deportation should be considered a mitigating factor. We disagree.
    [17]   Regardless of whether a non-citizen is in the United States legally or illegally,
    any finding relating to the possibility of future deportation requires the trial
    court to rely heavily on speculation as to what may happen in the future. Such
    a speculative finding would generally not be supported by the record before the
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 7 of 10
    trial court. That is the case here. Again, Lothvilaythong has failed to present
    any evidence demonstrating that he will be deported or that deportation is even
    likely. Thus, we conclude that Lothvilaythong has failed to demonstrate that
    the trial court’s determination relating to his immigration status and possible
    future deportation constituted an abuse of discretion.1
    II. Appropriateness of Sentence
    [18]   Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “‘concentrate
    less on comparing the facts of [the case at issue] to others, whether real or
    hypothetical, and more on focusing on the nature, extent, and depravity of the
    offense for which the defendant is being sentenced, and what it reveals about
    the defendant’s character.’” Paul v. State, 
    888 N.E.2d 818
    , 825 (Ind. Ct. App.
    2008) (quoting Brown v. State, 
    760 N.E.2d 243
    , 247 (Ind. Ct. App. 2002), trans.
    denied). The defendant bears the burden of persuading us that his sentence is
    inappropriate. Sanchez v. State, 
    891 N.E.2d 174
    , 176 (Ind. Ct. App. 2008).
    1
    In reaching this conclusion we observe this court’s prior conclusion that one’s immigration
    status may, under some circumstances, be considered to be a valid aggravating factor at
    sentencing. See Guzman v. State, 
    985 N.E.2d 1125
    , 1132 (Ind. Ct. App. 2013) (providing that
    one’s status as an illegal immigrant may be considered to be a valid aggravating factor at
    sentencing because said status demonstrates a disregard for the law, including immigration
    laws).
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 8 of 10
    [19]   In challenging the appropriateness of his sentence, Lothvilaythong argues that
    the nature of his offenses “cannot be viewed as significant [so] to order an
    aggravated thirty-five (35) year sentence.” Appellant’s Br. p. 12. To say the
    least, we find this argument to be less than compelling. Lothvilaythong took
    advantage of his young daughter by committing sexual misconduct upon her.
    He threatened to punish her by spanking her and locking her in a closet if she
    reported his actions. J.L.’s mother indicated during the sentencing hearing that
    J.L. has suffered pain and nightmares as a result of Lothvilaythong’s actions.
    [20]   With respect to his character, Lothvilaythong argues that his character is such
    that a thirty-five-year sentence is inappropriate. In making this argument
    Lothvilaythong points to the fact that he has no prior criminal history.
    Lothvilaythong also points to the fact that he has displayed an ability “to
    navigate and complete court-ordered programs.” Appellant’s Br. p. 12. While
    it is true that Lothvilaythong has no prior criminal history and he seems to have
    completed certain DCS programming, we nonetheless find him to be of poor
    character. Again, the record reveals that on more than one occasion,
    Lothvilaythong committed sexual misconduct on his daughter who, at the time,
    was no more than six years old.
    [21]   The Indiana Supreme Court has held that a harsher sentence is more
    appropriate when the defendant has violated a position of trust that arises from
    a particularly close relationship between the defendant and the victim, such as a
    parent-child relationship. Hamilton v. State, 
    955 N.E.2d 723
    , 727 (Ind. 2011).
    Lothvilaythong’s actions and character reveal that he violated such a position of
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 9 of 10
    trust by committing sexual misconduct on his young daughter. Lothvilaythong
    has failed to meet his burden of persuading us that his aggregate thirty-five-year
    sentence is inappropriate.
    Conclusion
    [22]   In sum, we conclude that the trial court acted within its discretion in sentencing
    Lothvilaythong and that Lothvilaythong failed to meet his burden of proving
    that his aggregate thirty-five-year sentence is inappropriate.
    [23]   The judgment of the trial court is affirmed.
    Baker, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 02A03-1507-CR-920 | February 9, 2016   Page 10 of 10
    

Document Info

Docket Number: 02A03-1507-CR-920

Filed Date: 2/9/2016

Precedential Status: Precedential

Modified Date: 2/9/2016