John Dale Prgomelja v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 18 2018, 8:24 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Dale Prgomelja, October 18, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1300
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D. Murray,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G02-1705-FA-1
Bailey, Judge.
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Case Summary
[1] John Dale Prgomelja (“Prgomelja”) pleaded guilty to Child Molesting, as a
Level 3 felony,1 and received an advisory sentence of nine years in the Indiana
Department of Correction with one year suspended to probation. Prgomelja
now appeals, arguing that his sentence is inappropriate. We affirm.
Facts and Procedural History
[2] The State charged Prgomelja with four counts of Child Molesting, charged as
Class A, Level 1, Class C, and Level 4 felonies.2 Prgomelja entered a plea
agreement with the State whereby the State would seek dismissal of the four
counts and Prgomelja would instead plead guilty to Child Molesting, as a Level
3 felony. The agreement provided for a maximum sentence of ten years.
Attached to the agreement was a stipulated factual basis stating that, in July
2016, Prgomelja molested his granddaughter—who was under the age of
fourteen—at his residence by digitally penetrating a sex organ with his finger.
[3] A plea hearing was held in March 2018, at which (1) the State filed an amended
charging information that contained the Level 3 felony count; (2) Prgomelja
pleaded guilty to that count pursuant to the agreement; and (3) the trial court
1
Ind. Code § 35-42-4-3(a).
2
All of these felonies were charged under either Indiana Code Section 35-42-4-3(a)(1) or Indiana Code
Section 35-42-4-3(b), although the Class A and Class C felony counts concerned allegations of conduct
occurring prior to July 1, 2014, thereby falling under a different statutory framework.
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took the plea under advisement. A sentencing hearing was held, and the trial
court accepted the plea, dismissed the remaining counts, and imposed an
executed sentence of nine years with one year suspended to probation.
[4] Prgomelja now appeals.
Discussion and Decision
[5] Pursuant to Article 7 of the Indiana Constitution, as implemented by Indiana
Appellate Rule 7(B), an appellate 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.” Ind. Appellate Rule 7(B). The appropriateness of a
sentence turns on “myriad . . . factors that come to light in a given case.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Moreover, the question is
not whether a different sentence would be more appropriate; the question is
whether the sentence imposed is inappropriate. Helsley v. State, 43 N.E.3d 225,
228 (Ind. 2015). As “sentencing is principally a discretionary function,”
Cardwell, 895 N.E.2d at 1222, we must give considerable deference to the
court’s decision—and that deference “should prevail unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character),” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately, the
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principal role of our review “is to attempt to leaven the outliers.” McCain v.
State, 88 N.E.3d 1066, 1067 (Ind. 2018) (per curiam).
[6] Regarding the offense, Prgomelja received the advisory sentence of nine years.
See I.C. § 35-50-2-5 (providing that the sentencing range for a Level 3 felony is
between three years and sixteen years, with an advisory sentence of nine years).
Because the advisory sentence is the starting point that the legislature “has
selected as an appropriate sentence for the crime committed,” Childress v. State,
848 N.E.2d 1073, 1081 (Ind. 2006), the appellant “bears a particularly heavy
burden in persuading us that his sentence is inappropriate when the trial court
imposes the advisory sentence,” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.
Ct. App. 2011), trans. denied.
[7] In seeking appellate revision of his sentence, Prgomelja does not argue—nor do
we discern—anything about the nature of this offense that warrants a different
sentence. Prgomelja instead attempts to portray his character in a positive light.
Prgomelja—seventy-six years old at the time of sentencing—focuses much of
his brief on his “advanced age and deteriorating health,” Br. of Appellant at 7,
but these are not virtuous character attributes indicative of an inappropriate
sentence under Appellate Rule 7(B). Prgomelja otherwise directs us to his lack
of prior contacts with the criminal justice system, his military service, and the
letters of support from his son and pastor. Prgomelja also notes that he was
willing to pay $300 per month toward his granddaughter’s ongoing therapy
bills—yet, she requires therapy because Prgomelja chose to betray a position of
trust. Furthermore, to the extent Prgomelja asserts that his decision to plead
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guilty reflects an acceptance of responsibility and conferred a benefit to both the
victim and the State, we note that Prgomelja received a substantial benefit in
return. Moreover, although Prgomelja directs our attention to his apology at
the sentencing hearing, the trial court—standing in a better position to evaluate
credibility—stated that it did not believe his apology “for a moment.” Tr. at 43.
[8] Prgomelja has not persuaded us that the advisory sentence is inappropriate.3
[9] Affirmed.
Mathias, J., and Bradford, J., concur.
3
Prgomelja asserts that, in its briefing, the State improperly drew upon information set forth in the probable
cause affidavit. We do not address this contention as we have not considered the probable cause affidavit.
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