Theodore Lincoln Jones 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 May 25 2017, 8:41 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
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Ellen M. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Theodore Lincoln Jones, May 25, 2017
Appellant-Defendant, Court of Appeals Case No.
48A02-1612-CR-2814
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark K. Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1508-F1-1352
Pyle, Judge.
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Statement of the Case
[1] Theodore Jones (“Jones”) appeals the sentence imposed after he pled guilty
without a plea agreement to Level 1 felony child molesting1 and Level 5 felony
child exploitation.2 He specifically contends that (1) the trial court abused its
discretion by failing to consider his proposed mitigating factors; and (2) the
forty-year sentence imposed for his Level 1 felony child molesting conviction is
inappropriate in light of the nature of the offense and his character. Because we
conclude that the trial court did not abuse its discretion in failing to consider
Jones’ proposed mitigating circumstances and that his sentence is not
inappropriate, we affirm.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion in failing to
consider Jones’ proposed mitigating factors.
2. Whether Jones’ sentence is inappropriate in light of the nature
of the offense and his character.
1
IND. CODE § 35-42-4-3.
2
I. C. § 35-42-4-4.
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Facts
[3] In August 2014, fifty-seven-year-old Jones took sexually explicit photographs
and videos of his twenty-one-month old granddaughter, L.J. (“L.J.”). Some of
the photographs depicted L.J. on a mattress drinking a bottle with her vagina
exposed. In one photograph, L.J. was playing with a dildo or vibrator. Other
photographs showed Jones using his fingers to spread L.J.’s vagina. The videos
depicted Jones rubbing the outside of L.J.’s vagina with his finger, inserting his
finger into her vagina, and moving his finger in and out of her vagina. Jones
also filmed himself forcing L.J. to move her hand back and forth on his penis.
[4] One year later, in August 2015, Jones’ son found the photos and videos of his
daughter on Jones’ computer and contacted the police. Jones was charged with
Level 1 felony child molesting and Level 5 felony child exploitation. He pled
guilty without a plea agreement in October 2015.
[5] Evidence presented at Jones’ November 2016 sentencing hearing revealed that
his criminal history included a misdemeanor conviction for driving under the
influence in 1991. Jones’ wife testified that Jones was in poor health.
Specifically, she explained that he suffered from diabetes, high blood pressure,
high cholesterol, back problems, depression, and gangrene of his genitals.
Jones testified that his physician had told him that he “probably [would not] see
seventy (70).” (Tr. 39). Jones also presented evidence that he had worked at
General Motors for twenty years until he became disabled.
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[6] Following the sentencing hearing, the trial court found the following
aggravating circumstances: (1) there were multiple counts; (2) Jones had
violated a position of trust; and (3) the nature and circumstances of the offenses.
The trial court further found the following mitigating circumstances: (1) Jones
had pled guilty saving the State the time and cost of trial; and (2) Jones had led
a law-abiding life for twenty-three years. The trial court then sentenced Jones
to forty (40) years for the Level 1 felony and six (6) years for the Level 5 felony.
The court further ordered the sentences to run concurrently for a total executed
sentence of forty (40) years. Jones now appeals his sentence.
Decision
[7] Jones argues that (1) the trial court abused its discretion by failing to consider
his proposed mitigating factors; and (2) the forty-year sentence imposed for his
Level 1 felony child molesting conviction is inappropriate in light of the nature
of the offense and his character. We address each of his contentions in turn.
1. Abuse of Discretion
[8] Sentencing decisions are within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. However, a trial court may be found to have abused its sentencing
discretion in a number of ways, including: (1) failing to enter a sentencing
statement; (2) entering a sentencing statement that explains reasons for
imposing a sentence where the record does not support the reasons; (3) entering
a sentencing statement that omits reasons that are clearly supported by the
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record and advanced for consideration; and (4) entering a sentencing statement
in which the reasons given are improper as a matter of law. Id. at 491. The
weight given to those reasons, i.e., to particular aggravators or mitigators, is not
subject to appellate review. Id.
[9] Jones argues that the trial court abused its discretion because it did not find his
age, his health, and his twenty years as a productive member of society to be
mitigating factors. A trial court is not obligated to accept a defendant’s claim as
to what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246,
249 (Ind. 2000). A trial court has discretion to determine whether the factors
are mitigating, and it is not required to explain why it does not find the
defendant’s proffered factors to be mitigating. Haddock v. State, 800 N.E.2d 242,
245 (Ind. Ct. App. 2003). A claim that the trial court failed to find a mitigating
circumstance requires the defendant to establish that the mitigating evidence is
both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at
493.
[10] Jones first contends that the trial court abused its discretion because it failed to
find that his age was a mitigating factor. In support of his contention, Jones
directs us to Dockery v. State, 504 N.E.2d 291 (Ind. Ct. App. 1987). There, the
trial court found no mitigating factors. Id. at 297. On appeal, this Court
pointed out that Dockery was seventy-six years old and remanded the case to
the trial court for a proper consideration of mitigating factors. Here, Jones was
fifty-seven years old at the time of the offense, which is almost twenty years
younger than Dockery was. Dockery is therefore simply not persuasive. The
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trial court did not abuse its discretion in failing to find Jones’ age was a
mitigating factor.
[11] Jones next contends that the trial court abused its discretion because it failed to
find that his health was a mitigating factor. Henderson v. State, 848 N.E.2d 341,
344 (Ind. Ct. App. 2006) is instructive. Henderson, who suffered from
depression, anxiety, diabetes, acid reflux, bladder prolapse, hyperthyroidism,
hypertension, and arthritis in her left shoulder, argued on appeal that the trial
court had erred in failing to find that her health was a mitigating factor. Id. at
344. However, this Court concluded that Henderson did not present any
evidence demonstrating that her medical conditions would be untreatable
during incarceration or would render incarceration a hardship. Id.
Accordingly, we concluded that the trial court did not err in failing to consider
Henderson’s health to be a mitigating factor. Id. Here, Jones suffers from
diabetes, high blood pressure, high cholesterol, back problems, depression, and
gangrene of his genitals. However, as in Henderson, Jones has presented no
evidence demonstrating that his medical conditions would be untreatable
during incarceration or would render incarceration a hardship. The trial court
did not abuse its discretion in failing to consider Jones’ health to be a mitigating
factor.
[12] Jones also argues that the trial court abused its discretion because it failed to
consider as a mitigating circumstance that he “had been a productive member
of society, working in a General Motors plant for [twenty] years before he
because disabled . . . .” (Jones’ Br. 10). This Court has previously held that
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the trial court did not abuse its discretion in failing to find that defendant’s
history as a working, productive member of society was a significant mitigating
factor where the defendant failed to provide a detailed work history,
performance reviews, or attendance records. See Bennett v. State, 787 N.E.2d
938, 948 (Ind. Ct. App. 2003), trans. denied. Jones has also failed to provide
such information. The trial court did not abuse its discretion in failing to
consider as a mitigating factor that Jones was a productive member of society
who had worked at General Motors for twenty years.
2. Inappropriate Sentence
[13] Jones argues that the forty-year sentence for his Level 1 felony child molesting
conviction is inappropriate. Indiana Appellate Rule 7(B) provides that we may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, we find that the sentence is inappropriate in light of the nature
of the offense and the character of the offender. The defendant bears the
burden of persuading this Court that his 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).
[14] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the Legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
Here, Jones was convicted of Level 1 felony child molesting. The sentencing
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range for a Level 1 felony child molesting conviction when the defendant is at
least twenty-one years old and the victim is less than twelve years old is
between twenty (20) and fifty (50) years, with an advisory sentence of thirty (30)
years. See I.C. § 35-50-2-4(c)(1). Here, the trial court sentenced Jones to forty
(40) years, which is ten (10) years less than the maximum sentence and ten (10)
years more than the advisory sentence.
[15] With regard to the nature of the offense, Jones took sexually explicit
photographs and videos of his twenty-one-month-old granddaughter, L.J. The
videos showed Jones rubbing the outside of L.J.’s vagina, inserting his finger
into her vagina, and moving his finger in and out of her vagina. Jones also
filmed himself forcing L.J. to move her hand back and forth on his penis.
[16] With regard to his character, Jones violated the trust of his wife, son, and
granddaughter. Based on the nature of the offense and his character, Jones has
failed to persuade this Court that his forty-year sentence for Level 1 felony child
molesting is inappropriate.
[17] Affirmed.
May, J., and Brown, J., concur.
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