Daniel Nolan v. State of Indiana ( 2012 )

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MEMORANDUM DECISION – NOT FOR PUBLICATION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.
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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
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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.
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