Christopher J. Wilson v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Jul 08 2015, 7:46 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
    Chad A. Montgomery                                        Gregory F. Zoeller
    Montgomery Law Office                                     Attorney General of Indiana
    Lafayette, Indiana
    Kelly A. Miklos
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Christopher J. Wilson,                                    July 8, 2015
    Appellant-Defendant,                                      Court of Appeals Case No.
    79A02-1411-CR-791
    v.                                                Appeal from the
    Tippecanoe Superior Court
    State of Indiana,                                         The Honorable Randy J. Williams,
    Judge
    Appellee-Plaintiff.
    Cause No. 79D01-1405-FB-10
    Kirsch, Judge.
    Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-791 | July 8, 2015          Page 1 of 5
    [1]   Christopher J. Wilson pleaded guilty to sexual misconduct with a minor1 as a
    Class B felony and was sentenced to thirteen years with nine years executed and
    four years suspended to probation. He appeals his sentence raising the
    following issue for our review: whether 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]   On Easter Sunday, April 20, 2014, Wilson was at the home of his girlfriend for
    a birthday party for her fifteen-year-old daughter, S.A. Wilson attended the
    birthday party with the intention of drinking alcohol and smoking marijuana.
    Wilson knew S.A. and was aware she was fifteen at the time. During the party,
    Wilson repeatedly approached S.A. and asked her to give him oral sex. S.A.
    refused several times. Wilson continued to ask S.A., and she eventually
    acquiesced to Wilson’s repeated demands. At that time, S.A. placed her mouth
    on Wilson’s penis, and Wilson received oral sex from S.A. S.A. did not like
    what happened and did not want to ever see or speak to Wilson again.
    [4]   S.A.’s grandmother walked into the room and discovered Wilson and S.A.
    together. After discovering Wilson and S.A., the grandmother kicked Wilson
    1
    See Ind. Code § 35-42-4-9(a)(1). We note that, effective July 1, 2014, a new version of this criminal statute
    was enacted. Because Wilson committed his crime prior to July 1, 2014, we will apply the statute in effect at
    the time he committed his crime.
    Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-791 | July 8, 2015                  Page 2 of 5
    out of the house. Sometime after this date, Wilson sent S.A. Facebook
    messages telling her that “her mouth felt good” and that he “would have taken
    her virginity if she had let him.” Appellant’s App. at 7.
    [5]   The State charged Wilson with sexual misconduct with a minor as a Class B
    felony. Wilson agreed to plead guilty as charged in exchange for the State not
    filing a petition to revoke his probation, as he was on probation at the time he
    committed the instant offense. The State also agreed that Wilson’s executed
    sentence would be between six and ten years. At the sentencing hearing, the
    trial court found as aggravating circumstances Wilson’s criminal history, that
    previous attempts at rehabilitation have failed, and Wilson’s history of
    substance abuse. It also found as mitigating circumstances that Wilson pleaded
    guilty, that he has family support, and that he had taken advantage of programs
    offered in jail. The trial court found that the aggravating factors outweighed the
    mitigating factors and sentenced Wilson to thirteen years with nine years
    executed and four years suspended to probation with the first year of probation
    to be served through community corrections. Wilson now appeals.
    Discussion and Decision
    [6]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
    statute if we deem it to be inappropriate in light of the nature of the offense and
    the character of the offender.” Corbally v. State, 
    5 N.E.3d 463
    , 471 (Ind. Ct.
    App. 2014). The question under Appellate Rule 7(B) is not whether another
    sentence is more appropriate; rather, the question is whether the sentence
    Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-791 | July 8, 2015   Page 3 of 5
    imposed is inappropriate. King v. State, 
    894 N.E.2d 265
    , 268 (Ind. Ct. App.
    2008). It is the defendant’s burden on appeal to persuade the reviewing court
    that the sentence imposed by the trial court is inappropriate. Chappell v. State,
    
    966 N.E.2d 124
    , 133 (Ind. Ct. App. 2012), trans. denied.
    [7]   Wilson argues that his sentence is inappropriate in light of the nature of the
    offense and the character of the offender. However, interspersed in Wilson’s
    argument are contentions regarding the trial court’s finding of aggravating
    circumstances and mitigating circumstances. It appears that he is arguing that
    some of the aggravators and mitigators were found in error, although he never
    asserts that the trial court abused its discretion in sentencing him. Our Supreme
    Court has made clear that inappropriate sentence and abuse of discretion claims
    are to be analyzed separately. Anglemyer v. State, 
    868 N.E.2d 482
    , 491 (Ind.
    2007), clarified on reh’g, 
    875 N.E.2d 218
    (Ind. 2007). We, therefore, take this
    opportunity to clarify again that an inappropriate sentence analysis does not
    involve an argument that the trial court abused its discretion in sentencing the
    defendant.
    [8]   As to the nature of the offense, Wilson, while attending the birthday party of his
    girlfriend’s fifteen-year-old daughter, repeatedly asked S.A. to perform oral sex
    on him. S.A. eventually acquiesced, and Wilson assaulted her in her own
    home by placing his penis in S.A.’s mouth. After this occurred, S.A. did not
    want to see or speak to Wilson again, but he began sending her messages on
    Facebook, telling her that “her mouth felt good” and that he “would have taken
    her virginity if she had let him.” Appellant’s App. at 7.
    Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-791 | July 8, 2015   Page 4 of 5
    [9]    As to Wilson’s character, although he was only twenty-two at the time of
    sentencing, he had an extensive criminal history. Wilson had numerous
    adjudications as a juvenile, which included possession of controlled substance,
    which would have been a Class D felony if committed by an adult, auto theft,
    being a runaway, and two counts of escape. As a juvenile, Wilson cut off his
    electronic monitoring bracelet when on home detention awaiting disposition in
    an adjudication. As an adult, Wilson’s criminal history consisted of a
    conviction for robbery, two convictions for criminal conversion, and a
    conviction for possession of paraphernalia. Wilson’s probation had been
    revoked at least three times as an adult, and he had failed to successfully
    complete probation in any of his previous cases. He was also on probation at
    the time he committed the instant offense. We do not find Wilson’s thirteen-
    year sentence, with nine years executed and four years suspended to probation
    for Class B felony sexual misconduct with a minor to be inappropriate in light
    of the nature of the offense and the character of the defendant.
    [10]   Affirmed.
    Vaidik, C.J., and Bradford, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 79A02-1411-CR-791 | July 8, 2015   Page 5 of 5