Daniel Nolan v. State of Indiana ( 2012 )


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  • 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:
    ROBERT J. HARDY                                         GREGORY F. ZOELLER
    Hardy Law Office                                        Attorney General of Indiana
    Auburn, Indiana
    ANDREW R. FALK
    Deputy Attorney General
    Indianapolis, Indiana
    FILED
    Sep 26 2012, 9:15 am
    IN THE
    COURT OF APPEALS OF INDIANA                                          CLERK
    of the supreme court,
    court of appeals and
    tax court
    DANIEL NOLAN,                                           )
    )
    Appellant,                                      )
    )
    vs.                                     )        No. 17A03-1205-CR-215
    )
    STATE OF INDIANA,                                       )
    )
    Appellee.                                       )
    APPEAL FROM THE DeKALB SUPERIOR COURT
    The Honorable Monte Brown, Judge
    Cause No. 17D02-1012-FC-46
    September 26, 2012
    MEMORANDUM DECISION – NOT FOR PUBLICATION
    MATHIAS, Judge
    Daniel Nolan (“Nolan”) appeals the eight-year sentence imposed after he pleaded
    guilty to Class C felony incest. He argues that the DeKalb Superior Court erred in failing
    to consider his guilty plea as a mitigating circumstance and that his sentence is
    inappropriate in light of the nature of the offense and the character of the offender. We
    affirm.
    Facts and Procedural History
    In 2006, Nolan’s eighteen-year-old biological daughter D.N. moved in with fifty-
    five-year-old Nolan. Shortly thereafter, Nolan and D.N. became involved in a sexual
    relationship. D.N. claims that she did not consent to the vaginal, oral, and anal sexual
    acts, and that Nolan often gave her money the following morning to make her feel better.
    Nolan also videotaped D.N. while they were having sexual intercourse.
    D.N. eventually reported the sexual activity to the DeKalb County Sheriff’s
    Department. When deputies questioned Nolan, he explained that he and D.N. had a
    prostitution agreement, and that he had paid D.N. $12,000 in four months to engage in
    sexual activity with him.       According to Nolan, every state should have legalized
    prostitution because he does not want to date women, he just wants to have sexual
    intercourse. When asked if he thought it was wrong to have sexual intercourse with his
    daughter, Nolan responded that he had “no morals about that.” Appellant’s App. p. 97.
    In December 2010, the State charged Nolan with Class C felony incest and with an
    enhancement charge as a repeat sexual offender. In October 2011, Nolan pleaded guilty
    to incest in exchange for the State’s dismissal of the repeat sexual offender enhancement.
    At the sentencing hearing, Nolan claimed that D.N. was a “victim of her own greed.” Tr.
    2
    p. 40. Although unclear what prompted the exchange, Nolan turned to his daughter
    during the sentencing hearing and said, “Oh, screw you.” Tr. p. 40.
    After the hearing, the trial court found the following aggravating factors: 1)
    Nolan’s past criminal activity described in the Pre-Sentence Investigation Report, which
    includes a prior conviction for molesting D.N.’s sister; 2) Nolan’s past criminal history
    has not rehabilitated him; 3) Nolan previously molested D.N. in 1992 and has now twice
    victimized one of his own daughters; 4) the incest was not an isolated incident but part of
    a series of acts that occurred between five and fifty times; and 5) Nolan’s statements,
    conduct, and demeanor during the course of the sentencing hearing reflected a complete
    lack of remorse. The trial court found no mitigating circumstances and sentenced Nolan
    to eight years in the Department of Correction. Nolan appeals his sentence.
    Discussion and Decision
    Nolan first argues that the trial court erred in failing to consider his guilty plea as a
    mitigating circumstance. However, a guilty plea does not rise to the level of significant
    mitigation where the defendant has received a substantial benefit from the plea or where
    the evidence against him is such that the decision to plead guilty is merely a pragmatic
    one. Wells v. State, 
    836 N.E.2d 475
    , 479 (Ind. Ct. App. 2005), trans. denied. Here,
    Nolan received a benefit in light of the State’s dismissal of the repeat sexual offender
    enhancement. There is also substantial evidence of Nolan’s guilt, including his own
    admission that he engaged in a sexual relationship with his daughter. In light of these
    circumstances, the trial court could have reasonably concluded that Nolan’s decision to
    3
    plead guilty was largely a pragmatic one. The trial court did not abuse its discretion in
    failing to consider Nolan’s guilty plea as a mitigating factor.
    Nolan also argues that his eight-year sentence is inappropriate in light of the
    nature of the offense and the character of the offender. Although a trial court may have
    acted within its lawful 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. Alvies v. State, 
    905 N.E.2d 57
    , 64 (Ind. Ct. App.
    2009) (citing Anglemyer v. State, 
    868 N.E.2d 482
    , 491 (Ind. 2007)). This appellate
    authority is implemented through Indiana Appellate Rule 7(B), which provides that a
    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.” Anglemyer, 868 N.E.2d at 491.
    However, we defer to a trial court’s sentencing decision, both 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. Stewart
    v. State, 
    866 N.E.2d 858
    , 866 (Ind. Ct. App. 2007). The burden is on the defendant to
    persuade us that his sentence is inappropriate. Reid v. State, 
    876 N.E.2d 1114
    , 1116 (Ind.
    2007). Finally, although we have the power to review and revise sentences, the principal
    role of appellate review should be to attempt to leaven the outliers, and identify some
    guiding principles for trial court and those charged with improvement of the sentencing
    statutes, but not to achieve a perceived “correct” result in each case. Cardwell v. State,
    
    895 N.E.2d 1219
    , 1225 (Ind. 2008).
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    Indiana Code section 35-5-0-2-6 provides that a person who commits a Class C
    felony shall be imprisoned for a fixed term of between two (2) and eight (8) years, with
    the advisory sentence being four (4) years. Here, Nolan pleaded guilty to one count of
    Class C felony incest and was ordered to serve eight (8) years in the Department of
    Correction.
    Concerning the nature of the offense, fifty-five-year-old Nolan had sexual
    intercourse with his eighteen-year-old daughter.         Nolan explained that he had a
    prostitution agreement with D.N., and that he had paid her $12,000 in four months. With
    regard to the character of the offender, Nolan previously molested D.N. and her sister
    when they were children, and that he had “no morals about” having a sexual relationship
    with his daughter.    Appellant’s App. p. 97.      Based upon the foregoing, we cannot
    conclude that Nolan’s eight-year executed sentence in the Department of Correction is
    inappropriate in light of the nature of the offense and the character of the offender.
    Affirmed.
    VAIDIK, J., and BARNES, J., concur.
    5
    

Document Info

Docket Number: 17A03-1205-CR-215

Filed Date: 9/26/2012

Precedential Status: Non-Precedential

Modified Date: 4/18/2021