Anthony D. Thomas v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 09 2017, 9:33 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Anthony S. Churchward, P.C.
Eric P. Babbs
Fort Wayne, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony D. Thomas, June 9, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1701-CR-66
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
02D06-1608-F4-52
Robb, Judge.
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Case Summary and Issue
[1] Anthony Thomas pleaded guilty to three counts of sexual misconduct with a
minor as Level 4 felonies, one count of the same as a Level 5 felony, and one
count of contributing to the delinquency of a minor as a Class A misdemeanor.
Thomas also admitted he is a repeat sexual offender. The trial court sentenced
Thomas to an aggregate sentence of eighteen years in the Indiana Department
of Correction. On appeal, Thomas raises one issue for our review: whether his
sentence is inappropriate in light of the nature of the offenses and his character.
Concluding his sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] In July 2016, Thomas and fourteen-year-old B.W. were present in the same
home when Thomas provided B.W. with alcohol and marijuana. At some
point, Thomas took B.W. to a bedroom and demanded she remove her
clothing. Thomas then proceeded to perform oral sex, digital penetration, and
sexual intercourse with B.W. despite B.W.’s requests he stop. Thomas also
later asked B.W. not to tell anyone, and when questioned by law enforcement,
Thomas denied B.W.’s allegations.
[3] On August 2, 2016, the State charged Thomas with three counts of sexual
misconduct with a minor as Level 4 felonies, one count of the same as a Level 5
felony, and one count of contributing to the delinquency of a minor as a Class
A misdemeanor. The State also alleged Thomas was a repeat sexual offender.
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Without the benefit of a plea agreement, Thomas pleaded guilty as charged. At
the sentencing hearing, the parties agreed that given the fact Thomas’
convictions arose out of only one episode of criminal conduct, the maximum
sentence the trial court could impose was fifteen years, see Ind. Code § 35-50-1-
2(d)(3), in addition to a six-year enhancement due to Thomas’ status as a repeat
sexual offender, see Ind. Code § 35-50-2-14(f). The trial court then sentenced
Thomas to twelve years for the underlying offenses plus a six-year enhancement
due to his status as a repeat sexual offender for an aggregate sentence of
eighteen years. This appeal ensued.
Discussion and Decision
[4] Indiana Appellate Rule 7(B) states, “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.” On appeal, the defendant bears
the burden of persuading this court his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a
sentence as inappropriate turns on “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). The
principal role of appellate review is to “leaven the outliers,” not to achieve the
perceived “correct” result in each case. Id. at 1225.
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[5] The advisory sentence is the starting point the legislature selected as an
appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Here, Thomas
was convicted of three Level 4 felonies, one Level 5 felony, and one Class A
misdemeanor. A person who commits a Level 4 felony shall be imprisoned for
a fixed term of between two and twelve years, with the advisory sentence being
six years. Ind. Code § 35-50-2-5.5. A person who commits a Level 5 felony
shall be imprisoned for a fixed term of between one and six years, with the
advisory sentence being three years. Ind. Code § 35-50-2-6(b). And a person
convicted of a Class A misdemeanor faces a maximum sentence of one year.
Ind. Code § 35-50-3-2. Excluding the repeat sexual offender enhancement, the
trial court sentenced Thomas to an aggregate sentence of twelve years.
[6] As to the nature of the offense, we note Thomas first provided B.W. with
intoxicating substances. He then proceeded to perform numerous sexual acts
on B.W. without B.W.’s consent and contrary to her requests that he stop. In
addition, Thomas asked B.W. to keep the misconduct a secret. As to his
character, we acknowledge Thomas pleaded guilty thereby indicating some
ability to take responsibility for his conduct, but note this was only done after
he had already denied any culpability to law enforcement. In addition, Thomas
has an extensive criminal history, which includes previous convictions for
sexual misconduct with a minor, battery, invasion of privacy, criminal
conversion, criminal mischief, and criminal trespass. Thomas has not
persuaded us his sentence is inappropriate.
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Conclusion
[7] We conclude Thomas’ sentence is not inappropriate in light of the nature of the
offenses and his character. Accordingly, we affirm.
[8] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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