Larry Harris v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this Nov 12 2013, 5:36 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA L. BAILEY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LARRY HARRIS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1211-CR-584
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
The Honorable Jeffrey L. Marchal, Commissioner
Cause No. 49G06-0610-FA-207078
November 12, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Larry Harris appeals his sentence for one count of Class A felony child molesting.
We affirm.
Issue
Harris raises one issue, which we restate as whether the trial court abused its
discretion in sentencing him.
Facts
On October 26, 2006, the State charged fifty-three-year-old Harris with two counts
of Class A felony child molesting. The first count was alleged to have occurred between
July 28, 2004, and July 28, 2005, and the second count was alleged to have occurred
between November 24, 2005, and December 25, 2005. Both counts involved A.L., who
was twelve at the time of the allegation in Count I and thirteen at the time of the
allegation in Count II.
In July 2007, Harris agreed to plead guilty to Count I, and the State agreed to
dismiss Count II. Pursuant to the plea agreement, Harris’s executed sentence was to be
capped at thirty years. At the sentencing hearing, the trial court considered Harris’s
“extensive history of criminal activity” as an aggravator. Sent. Tr. p. 20. After listing
eleven of Harris’s adult convictions, the trial court stated, “I also note in aggravation the
victim’s age. She was twelve years at the time of the offense.” Id. at 21. The trial court
went on to state:
I do find mitigating factors. First and foremost, he has
accepted responsibility and avoided the cost and necessity of
trial. I also am willing to give certain weight to the fact that
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he is not in the best of health. But quite frankly, that doesn’t
mean an awful lot when I weigh it against the other
aggravators. All told, I find that the aggravating factors
outweigh the mitigators so that imposition of a sentence
above the advisory term is warranted.
Id. The trial court sentenced Harris to forty-five years with thirty years executed and
fifteen suspended, five of which was to be served on probation. Harris belatedly appeals.
Analysis
Harris argues that the trial court abused its discretion in sentencing him. We
evaluate a sentence under the current “advisory” sentencing scheme pursuant to
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g by Anglemyer v.
State, 875 N.E.2d 218 (Ind. 2007).1 The trial court must issue a sentencing statement that
includes “reasonably detailed reasons or circumstances for imposing a particular
sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or omission of reasons given for
choosing a sentence are reviewable on appeal for an abuse of discretion. Id. “The
relative weight or value assignable to reasons properly found or those which should have
been found is not subject to review for abuse.” Id.
Harris contends that the trial court abused its discretion by considering the
victim’s age, a material element of the offense, as an aggravator. We are not persuaded.
In Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008), our supreme court observed that
“sentencing used to be a two-step process—imposing of the presumptive sentence, then
deciding whether any aggravators or mitigators warranted deviation.” Since the 2005
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On appeal, Harris cites Anglemyer and the manner in which sentences are reviewed following the 2005
amendment of the sentencing statutes, and he makes no argument that he was sentenced under the
presumptive sentencing scheme.
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modification of the sentencing scheme, however, sentencing “consists of only one
discretionary determination.” Id. “Thus, a sentence toward the high end of the range is
no longer an ‘enhanced sentence’ in the sense that the former regime provided.” Id.
According to Pedraza, based on the 2005 statutory changes, the consideration of a
material element of crime as an aggravator “is no longer an inappropriate double
enhancement.” Id. Thus, to the extent the trial court considered an element of the
offense as an aggravator, it is not an improper double enhancement.
Regardless, remand for resentencing is unnecessary because we are confident that
the trial court would have imposed the same sentence had it not considered the victim’s
age as an aggravator. See Anglemyer, 868 N.E.2d at 491 (observing that, where a trial
court has abused its discretion, “remand for resentencing may be the appropriate remedy
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.”). Here, the
trial court detailed Harris’s criminal history, which spanned more than thirty years, and
gave only passing reference to the victim’s age. We believe the trial court was focused
on Harris’s criminal history, not the victim’s age, when it crafted his sentence and,
therefore, remand would be unnecessary even if the trial court improperly considered the
victim’s age as an aggravator.
Conclusion
Harris has not established that the trial court abused its discretion in considering
the victim’s age as an aggravator. We affirm.
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Affirmed.
CRONE, J., and PYLE, J., concur.
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