Dylan J. Carley 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 Feb 13 2018, 9:24 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael P. DeArmitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dylan J. Carley, February 13, 2018
Appellant-Defendant, Court of Appeals Case No.
03A05-1708-CR-2014
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1601-F1-83
Bradford, Judge.
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Case Summary
[1] During the summer of 2015, twenty-one or twenty-two-year-old Appellant-
Defendant Dylan J. Carley1 engaged in sexual conduct with a fifteen-year-old
minor. During the early morning hours of December 26, 2015, Carley engaged
in sexual intercourse and other sexual behavior with an eleven-year-old minor.
Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged
Carley with two counts of Level 1 felony child molesting and one count of
Level 4 felony sexual misconduct with a minor.
[2] On June 19, 2017, Carley pleaded guilty to the lesser-included offense of Level
3 felony child molesting under Count I, the lesser-included offense of Level 3
felony child molesting under Count II, and Level 4 felony sexual misconduct
under Count III. In accordance with the terms of Carley’s plea agreement, the
trial court sentenced Carley to an aggregate forty-year sentence. The trial court
ordered that thirty-six years of Carley’s sentence be executed in the Department
of Correction (“DOC”) with four years suspended to probation. On appeal,
Carley challenges his sentence, arguing that his aggregate forty-year sentence is
inappropriate in light of the nature of his offenses and his character. We affirm.
Facts and Procedural History2
1
Carley turned twenty-two on June 30, 2015.
2
The factual basis provided to the trial court during the guilty plea hearing included only a basic factual
overview and lacked the details necessary to provide context to the reader. Therefore, to the extent
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[3] At some point between June 1, 2015 and July 21, 2015, Carley, being at least
twenty-one years of age, engaged in sexual conduct with fifteen-year-old A.S.
A.S. subsequently reported that Carley had “had her perform oral sex upon
him.” Appellant’s App. Vol. II–Confidential, p. 14.
[4] During the early morning hours of December 26, 2015, Carley engaged in
sexual intercourse with eleven-year-old B.P. Also on this date, Carley engaged
in other sexual conduct with B.P. B.P. reported that Carley “began kissing her
and fondling her[,] … that he eventually pulled down her pants and proceeded
to have sexual intercourse with her[,] … [and] he also had her perform oral sex
upon him.” Appellant’s App. Vol. II–Confidential, p. 13.
[5] In connection to his acts involving B.P., on January 6, 2016, the State charged
Carley with two counts of Level 1 felony child molesting. In connection to his
acts involving A.S., the State charged Carley with one count of Level 4 felony
sexual misconduct with a minor.
[6] On April 7, 2017, the State offered Carley a plea agreement, the terms of which
provided as follows:
1. [Carley] shall plead guilty to the lesser included offense of
Child Molesting as a Level 3 Felony under Count 1, the lesser
included offense of Child Molesting as a Level 3 Felony under
Count 2, and to Count 3, Sexual Misconduct with a Minor as a
Level 4 Felony.
necessary, we will rely on information contained in the probable cause affidavit filed in the underlying case to
provide context to the readers.
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2. The State agrees the sentence shall not exceed 42 years.
3. The State agrees to not file any additional charges as a result
of the investigation in this matter.
Appellant’s App. Vol. II–Confidential, p. 53. Carley accepted the terms as
offered. On June 19, 2017, the trial court conducted a guilty plea hearing.
During this hearing, Carley pled guilty to two counts of Level 3 felony child
molesting and one count of Level 4 felony sexual misconduct with a minor.
The trial court accepted Carley’s guilty plea.
[7] The trial court conducted a sentencing hearing on August 1, 2017. At the
conclusion of this hearing, the trial court imposed consecutive fifteen-year
sentences on each of the Level 3 felony convictions and a consecutive ten-year
sentence on the Level 4 felony conviction, for an aggregate term of forty years.
The trial court ordered that thirty-six years shall be executed in the DOC and
the last four years suspended to probation. This appeal follows.
Discussion and Decision
[8] Carley contends that his aggregate forty-year sentence is inappropriate in light
of the nature of his offenses and his character. Indiana Appellate Rule 7(B)
provides that “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.” In analyzing such claims, we “‘concentrate less on comparing the
facts of [the case at issue] to others, whether real or hypothetical, and more on
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focusing on the nature, extent, and depravity of the offense for which the
defendant is being sentenced, and what it reveals about the defendant’s
character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). Further,
“[o]ur review under Appellate Rule 7(B) should focus on ‘the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number
of counts, or length of the sentence on any individual count.’” Williams v. State,
997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013) (quoting Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008)). “The appropriate question is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate.” Id. (citing Fonner v. State, 876 N.E.2d 340,
344 (Ind. Ct. App. 2007)). The defendant bears the burden of persuading us
that his sentence is inappropriate. Id.[9] The nature of Carley’s criminal actions is disturbing. Carley first victimized a
fifteen-year-old child by having the child perform oral sex on him. He then
victimized an eleven-year-old child by having that child both engage in sexual
intercourse with and perform oral sex on him. Carley seems to have some form
of an on-going familial relationship with his victims, the daughters of his aunt’s
boyfriend. The acts involving the younger child occurred while Carley’s family
was assembled together to celebrate the Christmas holiday.
[10] As for Carley’s character, we acknowledge that Carley had a minor criminal
history consisting of only a juvenile adjudication for a curfew violation and
relatively minor driving offenses. However, the fact that his first felony offenses
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involved the victimization of children does not reflect well on his character.
Further, despite the fact that Carley has a relatively minor criminal history, the
risk assessment score derived from the Indiana Risk Assessment System
indicates that Carley is a “moderate risk to re-offend.” Appellant’s App. Vol.
II–Confidential, p. 66.
[11] Carley also has a long-standing history of substance abuse. Carley indicated
that he began using alcohol and drugs when he was fourteen years old. He also
indicated that despite recognizing that he has a problem, he has never sought
treatment for his drug use. This is especially troubling given that Carley
indicated that he could not remember if he had been drinking when he
committed his acts involving A.S., but that he was “heavily intoxicated” when
he committed his acts involving B.P. Tr. Vol. II, p. 29.
[12] While it is true that Carley accepted responsibility for his actions by pleading
guilty, Carley obtained a significant benefit by doing so. Although he had been
charged with two Level 1 felony offenses, the State agreed that he would plead
guilty to two lesser-included Level 3 felony offenses. Having two Level 1 felony
child molesting charges reduced to Level 3 felony child molesting charges
significantly limited his potential sentencing exposure. See Ind. Code § 35-50-2-
4(c) (providing that a person who commits a Level 1 felony child molesting
offense shall be imprisoned for a fixed term between twenty and fifty years);
Ind. Code § 35-50-2-5 (providing that a person who commits a Level 3 felony
shall be imprisoned for a fixed term between three and sixteen years). Carley’s
potential sentencing exposure was further limited by the terms of his plea
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agreement. The trial court sentenced Carley in accordance with this agreement,
imposing an aggregate term of less than the maximum permitted under the
terms of the agreement.
[13] Furthermore, we are not persuaded by Carley’s claim that it was inappropriate
to run the sentences for his Level 3 felony convictions consecutive to one
another as he merely engaged in one sexual episode with B.P. While it may be
true that all of his actions involving B.P. occurred on one date, Carley
committed a number of different sexual violations against B.P. He had her both
engage in sexual intercourse with him and perform oral sex on him. We are
unpersuaded by Carley’s attempt to frame his actions as “foreplay” that often
occurs during the normal course of a consensual adult sexual encounter.
Appellant’s Br. p. 12. Carley’s “partner” in this so-called “foreplay” was not an
adult, but an eleven-year-old child.
[14] In arguing that his sentence is inappropriate, Carley relies on Sanchez v. State,
938 N.E.2d 720 (Ind. 2010) and Monroe v. State, 886 N.E.2d 578 (Ind. Ct. App.
2008). In both Sanchez and Monroe, the Indiana Supreme Court found that the
aggregate sentences imposed following the defendants’ convictions for child
molesting were inappropriate. In Sanchez, the Indiana Supreme Court
concluded that although the defendant had committed serious crimes involving
rubbing his step-daughters’ vaginas, his eighty-year sentence was nonetheless
inappropriate in light of the nature of his offenses and his character. 938
N.E.2d at 722–23. In reaching this conclusion, the Indiana Supreme Court
noted that the defendant had not used significant force in committing his acts
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and that he had a relatively minor criminal history. Id. The Indiana Supreme
reduced the defendant’s aggregate sentence to forty years. Id. at 723. In
Monroe, the Indiana Supreme Court concluded that while an enhanced sentence
was warranted in light of the nature of the defendant’s offenses and his
character, it was inappropriate to impose consecutive sentences. 886 N.E.2d at
580.
[15] However, the fact that Indiana Supreme Court reduced the defendants’
sentences in Sanchez and Monroe does not prove that Carley’s aggregate forty-
year sentence is inappropriate. All three cases involve convictions for child
molesting. Like Sanchez, the instant matter involves the victimization of two
young children. We agree with the State that Carley’s actions, i.e., having two
minors perform oral sex on him and the younger minor engage in sexual
intercourse with him, are certainly no less egregious than those described in
Sanchez. The aggregate forty-year sentence imposed in this case is the same as
the reduced sentence imposed by the Indiana Supreme Court in Sanchez.
Further, the aggregate forty-year sentence is less than the reduced fifty-year
aggregate sentence imposed by the Indiana Supreme Court in Monroe. Each
case turns on the specific facts and circumstances presented before the court.
Given the facts and circumstances of this case, we find Carley’s reliance upon
Sanchez and Monroe to be unpersuasive.
[16] Again, Carley bears the burden of persuading us that his sentence is
inappropriate. Williams, 997 N.E.2d at 1165. For the above-stated reasons, we
conclude that Carley has failed to prove that his aggregate forty-year sentence is
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inappropriate in light of the nature of his offenses and his character. As such,
we affirm the judgment of the trial court.
[17] The judgment of the trial court is affirmed.
Robb, J., and Crone, J., concur.
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