Donald Lee Troy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Jun 22 2017, 6:19 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel C. Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald Lee Troy, June 22, 2017
Appellant-Defendant, Court of Appeals Case No.
67A05-1611-CR-2553
v. Appeal from the Putnam Superior
Court
State of Indiana, The Honorable Charles D. Bridges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
67D01-1608-F5-123
Bailey, Judge.
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Case Summary
[1] Following a guilty plea, Donald Lee Troy (“Troy”) was convicted of Sexual
Misconduct with a Minor, as a Level 5 felony,1 and sentenced to six years
imprisonment, with five years executed and one year suspended to probation.
Troy now appeals, challenging aspects of his sentence.
[2] We affirm.
Issues
[3] Troy presents the following expanded and restated issues:
I. Whether the trial court abused its sentencing discretion;
and
II. Whether his sentence is inappropriate.
Facts and Procedural History
[4] On August 15, 2016, forty-nine-year-old Troy was charged with having sexual
intercourse with A.B., who was over the age of fourteen and under the age of
sixteen. Troy pleaded guilty to the offense pursuant to a plea agreement. A
sentencing hearing was held on October 12, 2016, and the trial court imposed a
sentence of six years, with one year suspended to probation.
1
Ind. Code § 35-42-4-9(a).
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[5] This appeal ensued.
Discussion and Decision
Abuse of Sentencing Discretion
[6] Troy argues that the trial court abused its sentencing discretion by improperly
identifying certain aggravating factors.
[7] Sentencing decisions are within the discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Id. In sentencing a defendant, the trial
court must enter a sentencing statement that includes “reasonably detailed
reasons or circumstances for imposing a particular sentence,” id. at 491, and
Indiana Code section 35-38-1-7.1 provides a non-exhaustive list of potential
aggravating or mitigating circumstances. “[O]nce the trial court has entered a
sentencing statement, which may or may not include the existence of
aggravating and mitigating factors, it may then ‘impose any sentence that
is . . . authorized by statute; and . . . permissible under the Constitution of the
State of Indiana.’” Id. (quoting I.C. § 35-38-1-7.1(d)).
[8] One way the trial court abuses its sentencing discretion is when it “enter[s] a
sentencing statement that explains reasons for imposing a sentence—including
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a finding of aggravating and mitigating factors if any—but the record does not
support the reasons.” Id. at 490. The trial court also abuses its sentencing
discretion when “the reasons given are improper as a matter of law.” Id. at 491.
If the trial court has abused its sentencing discretion, we will remand for
resentencing “if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id.
[9] Troy contends that the trial court abused its sentencing discretion because it
improperly “relied upon the probable cause affidavit not admitted as evidence
during the sentencing hearing to find several aggravators not advanced by the
State.” Appellant’s Br. at 10. In this respect, Troy challenges the following
aggravators derived from the probable cause affidavit: (1) Troy was grooming
other potential victims; (2) Troy encouraged A.B. to change her story; and (3)
Troy asked A.B. to send him inappropriate pictures.
[10] Troy did not object to use of the probable cause affidavit when the trial court
orally sentenced him, and so Troy has waived this argument. See Brown v. State,
929 N.E.2d 204, 207 (Ind. 2010) (noting that failure to raise a contemporaneous
objection results in waiver of appellate review). Waiver notwithstanding, even
if we were to conclude that the probable cause affidavit was not properly before
the trial court, in light of other aggravating circumstances that the trial court
properly identified—that Troy engaged in multiple sexual acts with A.B. over
an extended time and that he shifted blame to A.B. by telling the probation
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department that she had flirted with him—we are confident that the trial court
would have imposed the same sentence. See Anglemyer, 868 N.E.2d at 491.
[11] Troy also contends that the trial court abused its discretion by “seem[ing] to
have applied aggravating weight to the fact that A.B. will have to deal with this
crime her whole life,” pointing out that “no emotional impacts upon A.B. were
demonstrated by the record.” Appellant’s Br. at 13. Troy focuses on a moment
in the trial court’s sentencing statement when it noted that Troy’s wife had been
similarly victimized: “[Y]our poor wife, having gone through this herself, now
she’s having to relive this . . . [s]he’s had to deal with this her whole life . . . [a]s
will the victim in this case.” (Sent. Tr. at 64.) We do not think that the trial
court, through this brief comment, found that the impact on A.B. was a distinct
and separate aggravator. Indeed, as the State points out, the trial court did not
use the language “aggravator” or “aggravating factor” as it had while reflecting
on other circumstances. We thus conclude that the trial court did not abuse its
discretion when it briefly acknowledged the testimony Troy’s wife had given.
[12] Finally, Troy asserts that the trial court abused its discretion when it identified
his criminal history as an aggravating factor. The identified criminal history
includes two matters, both of which Troy self-reported: an arrest for a juvenile
offense of possession of paraphernalia and a 2011 arrest for illegal taking of a
wild animal. Both matters were dismissed, and the pre-sentence investigation
lacks further detail about the circumstances of either arrest.
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[13] A record of arrests, without more, does not constitute “criminal history” for the
purposes of sentence aggravation. Tunstill v. State, 568 N.E.2d 539, 545 (Ind.
1991). Rather, “[t]he substance of [this] aggravator . . . is the fact that the
defendant committed the other crime, not that he was arrested for it.” Id.
Nonetheless, an arrest record “is relevant to the court’s assessment of the
defendant’s character and the risk that he will commit another crime and is
therefore properly considered by a court in determining [a] sentence.” Id.
Indeed, the record might “reveal to the court that subsequent antisocial
behavior on the part of the defendant has not been deterred even after having
been subject to the police authority of the State and made aware of its oversight
of the activities of its citizens.” Id.
[14] Here, the trial court acknowledged that Troy had been arrested and not
convicted. The trial court nevertheless determined that the arrests amounted to
a criminal history, and identified that history as an aggravating circumstance.
We conclude that the trial court abused its discretion to the extent that it relied
on the bare self-reported arrests to identify criminal history as an aggravating
circumstance. Nonetheless, we conclude that the error was harmless. See Ind.
Trial Rule 61 (providing that no error or defect in an order is ground for
disturbing the order “unless refusal to take such action appears to the court
inconsistent with substantial justice”). Although the trial court should not have
characterized Troy’s arrests as “criminal history,” the trial court could have
properly relied on those arrests to make a character determination about Troy,
and thereby properly aggravate his sentence. See I.C. § 35-38-1-7.1(c) (noting
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that trial court is not limited in “the matters . . . [it] may consider in
determining the sentence”). We are ultimately confident that, had the trial
court characterized Troy’s arrest record as indicative of an aggravating
character attribute instead of as aggravating criminal history, the trial court
would have reached the same sentence. See Anglemyer, 868 N.E.2d at 491.2
Inappropriate Sentence
[15] Troy asks that we exercise our authority to revise his sentence.3 Even when a
trial court has not abused its sentencing discretion, we may independently
review a sentence under Indiana Appellate Rule 7(B). Under this rule, we
“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.” In conducting
our review, we consider “the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The
principal role of such review is to attempt to leaven the outliers, not achieve the
perceived “correct” result in each case. Id. at 1225. The defendant bears the
2
Indeed, we note that the trial court—although it could have more artfully done so—appeared to express
concern about Troy’s character given his previous interactions with law enforcement, despite characterizing
the arrest record as criminal history: “I’m not sure, if maybe you’ve got it in your head now when you
commit a crime that you just walk away like you did the other two. I don’t know.” (Sent. Tr. at 64.)
3
In the conclusion of his brief, Troy makes a brief request for a revision of his sentence. We treat Troy’s
claim as properly raised, reminding counsel that inappropriate sentence and abuse of discretion arguments
are to be separately analyzed. See Anglemyer, 868 N.E.2d at 491.
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burden of persuading us that his sentence is inappropriate. Whatley v. State, 928
N.E.2d 202, 207-08 (Ind. 2010).
[16] Regarding the nature of the offense, the advisory sentence “is the starting point
the Legislature has selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The
sentencing range for a Level 5 felony is between one year and six years, with an
advisory sentence of three years. I.C. § 35-50-2-6. Troy received the maximum
sentence length of six years, with one year suspended to probation.
[17] As to the nature of Troy’s offense, Troy engaged in sexual intercourse with a
minor whom he employed. The intercourse, along with other sexual acts,
occurred multiple times and took place at work. As to the character of the
offender, Troy pleaded guilty, expressed remorse, and proactively attended
counseling, which reflects well on Troy’s character. Troy also appears to be a
supportive parent to his step-children and a helpful caregiver to his father.
However, Troy decided to take advantage of a minor who worked for him, and
he seemingly attempted to shift blame to the victim when he told the probation
department that A.B. had flirted with him.
[18] Troy presents no argument as to the nature of his offense or his character, and
we are not persuaded that his sentence warrants revision.
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Conclusion
[19] Troy has not directed us to reversible error in the trial court’s sentencing order,
and the sentence is not inappropriate.
[20] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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