Joseph R. Keller v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 07 2018, 8:57 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Koethe Curtis T. Hill, Jr.
La Porte, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph R. Keller, December 7, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-481
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff Bergerson, Judge
Trial Court Cause No.
46D01-1407-F3-20
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-481 | December 7, 2018 Page 1 of 5
[1] Joseph R. Keller appeals following his conviction of Level 4 felony child
molesting. 1 He argues his ten-year sentence is inappropriate. We affirm.
Facts and Procedural History
On July 23, 2014, Keller, his girlfriend, his sister, and his twelve-year-old cousin
S.K. were watching television at the home of Keller’s parents, where Keller
lived. S.K. was a frequent guest at Keller’s home, visiting approximately once a
week. At one point, Keller’s sister and his girlfriend left the house, leaving
Keller and S.K. alone. While they were gone, Keller began to rub S.K.’s
stomach. Keller then moved his hand under S.K.’s clothes and began to rub her
vagina.
S.K. immediately reported the incident to the police. Keller was charged with
Level 3 felony child molesting 2 and Level 4 felony child molesting. Keller
pleaded guilty to Level 4 felony child molesting. The trial court imposed a
sentence of ten years, with three years suspended to probation. Keller is
classified a Sexually Violent Offender under Indiana Code section 35-38-1-7.5
and is required to register with local law enforcement for life.
Discussion and Decision
1
Ind. Code § 35-42-4-3(b) (2014).
2
Ind. Code § 35-42-4-3(a) (2014).
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[2] Keller argues his sentence is inappropriate in light of his character and the
nature of his offense.
We “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.” Ind. Appellate Rule 7(B).
“Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions,
Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849
N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
quotation marks omitted). “[W]hether we regard a sentence as
appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
In addition to the “due consideration” we are required to give to
the trial court’s sentencing decision, “we understand and
recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[3] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The
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sentence for a Level 4 felony is a fixed term between two and twelve years, with
the advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014). The trial
court sentenced Keller to ten years; thus, he received a sentence above the
advisory but below the maximum.
[4] Regarding the nature of the offense, the trial court notes Keller was in a
position of trust with S.K. S.K. was twelve, was his cousin, often visited
Keller’s house, and attended family functions with him. Keller’s violation of a
position of trust makes his crime more egregious, justifying a sentence greater
than the advisory. See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App.
2009) (defendant violating position of trust with victim allowed for an enhanced
sentence), trans. denied.
[5] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.
App. 2013). Keller has a minimal criminal history and no history of violence.
Keller also claims he has a history of mental illness and has shown remorse for
his actions. However, Keller refused to take full responsibility for his actions
and partially blamed his victim for the assault, which suggests his character
needs rehabilitation. See Boling v. State, 982 N.E.2d 1055 1061-62 (Ind. Ct. App.
2013) (defendant placing blame on victim showed poor character and allowed
for aggravated sentence).
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[6] Given the nature of the offense, i.e., Keller abusing a position of trust, and the
character of the offender, i.e., Keller blaming his victim and refusing to take full
responsibility, we cannot say Keller’s ten-year sentence is inappropriate. See id.Conclusion
[7] In light of Keller’s character and the nature of his offense, his ten-year sentence
is not inappropriate. Accordingly, we affirm.
[8] Affirmed.
Baker, J., and Robb, J., concur.
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