Robert Teal v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 16 2018, 10:54 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Appellate Division
Michael Gene Worden
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Teal, March 16, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1709-CR-2029
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven J. Rubick,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G01-1508-F4-30444
Bailey, Judge.
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Case Summary
[1] Robert Teal (“Teal”) challenges the sentence imposed upon his conviction of
Child Molesting, as a Class C felony.1 He presents the sole issue of whether the
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] In 2013, Teal was an overnight guest in the home of a long-time friend when he
approached the daughter of another guest, seven-year-old A.B., while A.B. was
asleep on the sofa. Teal touched A.B. underneath her panties, on her buttocks,
and on her vagina. A.B. escaped and ran upstairs to her father’s room but did
not tell anyone about the incident for a few years.
[3] Eventually, A.B. reported that incident, and a subsequent alleged molestation,
to her mother. On September 11, 2015, the State charged Teal with two counts
of Child Molesting. A jury trial was conducted on July 19, 2017. Teal was
acquitted of one charge but found guilty of the molestation when A.B. was
seven. On August 8, 2017, the trial court sentenced Teal to three years
imprisonment, with two years to be executed in the Indiana Department of
Correction (“the DOC”) and one year to be suspended to sex offender
probation. Teal now appeals.
1
Ind. Code § 35-42-4-3(b) (2012).
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Discussion and Decision
[4] At the time of Teal’s offense, Indiana Code Section 35-50-2-6 provided that a
person convicted of a Class C felony was subject to a sentencing range of
between two years and eight years. The advisory sentence was four years
imprisonment. Accordingly, Teal received a sentence less than the advisory.
[5] Teal articulates his appellate issue as “whether suspending the remainder of
[his] sentence is appropriate under Ind. Appellate Rule 7(B).” Appellant’s Brief
at 4. However, this does not comport with our standard of review. As
explained by our Indiana Supreme Court, the question is not whether another
sentence is more appropriate, but rather, whether the sentence imposed is
inappropriate:
Although a trial court may have acted within its lawful discretion
in determining a sentence, Article VII, Sections 4 and 6 of the
Indiana Constitution authorize independent appellate review and
revision of a sentence 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 v. State, 868 N.E.2d 482, 491 (Ind. 2007). The burden
is on the defendant to persuade us that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). Ultimately, whether a
sentence is inappropriate turns upon the defendant’s culpability, the severity of
the crime, the damage done to others, and a myriad of other factors that may be
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found in a given case. Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014). The
principal role of appellate review is to attempt to leaven the outliers. Bess v.
State, 58 N.E.3d 174, 175 (Ind. 2016). Teal does not challenge the length of his
sentence, but challenges his placement in the DOC. According to Teal, he
would have been well-served by “substance abuse and job training programs at
the Duvall Residential Center, a community corrections work release facility, if
the trial court had seen fit to place him there.” Appellant’s Brief at 8.
[6] The location where a sentence is to be served is an appropriate focus for our
review and revise authority. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.
2008). However, it will be quite difficult for a defendant to prevail on a claim
that the placement of his sentence is inappropriate. Id. This is because, as we
have already observed, the question is whether the sentence imposed is
inappropriate and not whether a different sentence would have been more
appropriate. Id. A defendant challenging his placement must convince us that
the placement itself is inappropriate. Id. “As a practical matter, trial courts
know the feasibility of alternative placements in particular counties or
communities. For example, a court is aware of the availability, costs, and
entrance requirements of community corrections placements in a specific
locale.” Id. (internal citation omitted.)
[7] The nature of Teal’s offense is that he approached a sleeping child, only seven
years old, and fondled her. Despite Teal’s efforts at concealment, the victim
awoke and ran to her father’s room. As for Teal’s character, he has no history
of criminal convictions and he has been consistently employed. The trial court
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imposed a lenient sentence, one year less than the advisory and including a one-
year suspension to probation. Teal merely argues that his sentence should have
been fully suspended, such that he would not be placed in the DOC for any
period of time. He has not persuaded us that the sentence is inappropriate.
Conclusion
[8] Consideration of the nature of Teal’s offense and his character does not warrant
sentence revision.
[9] Affirmed.
Crone, J., and Brown, J., concur.
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