Nicholas D. McHenry v. State of Indiana

FILED
Jul 17 2020, 8:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nicole A. Zelin Curtis T. Hill, Jr.
Pritzke & Davis, LLP Attorney General of Indiana
Greenfield, Indiana
Sarah Shores
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas D. McHenry, July 17, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2460
v. Appeal from the Hancock Circuit
Court
State of Indiana, The Honorable R. Scott Sirk,
Appellee-Plaintiff Judge
Trial Court Cause No.
30C01-1902-F1-299
May, Judge.
[1] Nicholas D. McHenry appeals his aggregate twenty-four-year sentence for two
counts of Level 4 felony child molesting. 1 We address two issues: (1) whether
1
Ind. Code § 35-42-4-3(b).
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McHenry waived his right to appeal as a condition of his plea agreement; and
(2) whether McHenry’s sentence is inappropriate given the nature of his offense
and his character. We affirm.
Facts and Procedural History
[2] N.W. and her younger sister, N.S., spent a lot of time at McHenry’s house
because N.W. was friends with McHenry’s younger sister, G.M. The mother of
N.W. and N.S. paid McHenry’s mother to babysit N.W. and N.S., and
McHenry would help his mother care for them. On February 6, 2019, the
mother of N.W. and N.S. contacted the Fortville Police Department to report
that McHenry, a twenty-one-year old man, had touched N.W.’s thigh and
asked N.W. to unbutton her pants. The officer who took the report contacted
the Indiana Department of Child Services (“DCS”). A DCS caseworker then
interviewed N.W. and N.S. at the Hancock County Sheriff’s Department. In
their interviews with the caseworker, both N.S. and N.W. reported McHenry
inappropriately touched them.
[3] N.S. described an incident that occurred on February 1, 2019, when N.S. was
six years old. N.S. was in McHenry’s bedroom when McHenry blocked his
bedroom door and would not allow her to leave the room. McHenry asked
N.S. to sit on his lap. McHenry touched N.S.’s “pee area” over her clothes at
first, then McHenry pulled N.S.’s pants down and touched her “pee area”
again. (App. Vol. II at 25.) McHenry said “ooo that’s good” while touching
N.S. (Id.)
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[4] The caseworker also interviewed N.W., who described an incident that
occurred in April 2018, while she attended a sleepover at McHenry’s house to
celebrate G.M.’s birthday. N.W. was eleven years old at the time. N.W.
reported that she was sleeping on a chair in the living room when she woke up
to McHenry rubbing her vagina. Once N.W. woke up, McHenry told her
“shhh and go back to bed.” (Id.)
[5] After DCS’s interviews with N.W. and N.S., Fortville Police Officers
interrogated McHenry. McHenry admitted touching N.S.’s vagina, both over
her clothes and then skin to skin, in his bedroom. He also said that he put his
thumb inside N.S.’s anus. McHenry further admitted rubbing N.W.’s vagina
with his hand when N.W. was at the McHenry’s house for G.M.’s birthday
sleepover. McHenry then reported that he had also recently reached under
G.M.’s nightgown and “copped a feel” of G.M.’s buttocks. (Id.)
[6] On February 13, 2019, the State charged McHenry with one count of Level 1
felony child molesting 2 and two counts of Level 4 felony child molesting. On
July 17, 2019, McHenry entered into a plea agreement with the State in which
he agreed to plead guilty to the two counts of Level 4 felony child molesting
and the State agreed to dismiss the Level 1 felony child molesting count. The
plea agreement listed the maximum and minimum penalties allowed by statute
for a Level 4 felony, but it left the sentence on each count and the aggregate
2
Ind. Code § 35-42-4-3(a)(1).
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sentence to the discretion of the trial court. Paragraph 15 of the plea agreement
stated:
The Defendant understands that he has a right to appeal his
sentence if there is an open plea. An open plea is an agreement
which leaves the sentence entirely to the Judge’s discretion,
without any limitation or the dismissal of any charges. The
Defendant’s plea is not an open plea, and the Defendant hereby
waives his right to appeal his sentence so long as the Judge
sentences the Defendant within the terms of the plea agreement.
The defendant hereby waives the right to appeal any sentence
imposed by the Court, under any standard of review, including
but not limited to, an abuse of discretion standard and the
appropriateness of the sentence under Indiana Appellate Rule
7(B), so long as the Court sentences the defendant within the
terms of the plea agreement.
(App. Vol. II at 49-50.)
[7] The trial court held a change of plea hearing on July 23, 2019. At the hearing,
the trial court advised McHenry that, by entering into the plea agreement,
McHenry waived certain rights including his right to a public and speedy trial,
his right to confront the witnesses against him, his right not to be called to
testify against himself, and the presumption of innocence. The trial court also
advised McHenry of the maximum and minimum penalties for the crimes
McHenry intended to plead guilty to committing. McHenry then moved to
change his plea, and he pled guilty to the two counts of Level 4 felony child
molestation. McHenry also waived his right to be sentenced within thirty days
of entering his guilty plea.
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[8] The trial court held a sentencing hearing on September 26, 2019. The victims’
mother testified that, after the molestations, N.W. became depressed and her
grades dropped dramatically, and N.S. threatened to commit suicide. Both
N.W. and N.S. began attending therapy. McHenry’s juvenile probation officer,
McHenry’s mother, and McHenry also testified at the hearing. During the
State’s argument, the State commented McHenry “essentially pled open,” and
the State declined to make a specific sentencing recommendation. (Tr. Vol. II
at 73.) The trial court sentenced McHenry to consecutive twelve-year terms, for
an aggregate sentence of twenty-four years. The hearing concluded with the
following exchange between the court and counsel:
THE COURT: Okay. Anything else? [Defense Counsel] may
appeal the sentence –
[Defense Counsel]: No Judge.
THE COURT: - within thirty days if he wishes to do so. All
right thank you all very much. Anything else Ms. [Deputy
Prosecutor]?
[Deputy Prosecutor]: Not at this time Your Honor.
(Id. at 87.)
[9] On October 9, 2019, the trial court entered a sentencing statement in which it
stated:
2. The reason for Defendant’s said sentence is that the harm,
injury, loss, damage suffered by both victims of this offense of
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child molest was significant and greater than necessary of the
elements [sic] to prove the commission of said offense.
3. The defendant had a history of criminal delinquent behavior
including a previous juvenile conviction of the same offense of
child molest and including the uncharged child molest.
4. Additionally, the defendant was placed in a situation where
the victims were at his home for purposes of child care and the
defendant was in a position where he had a greater responsible
[sic] to said children.
5. Finally, as stated previously[,] the victims themselves and the
nature of their loss is such and the harm that was inflicted [on]
them is such it demands a penalty reflecting the aggravating
circumstances and justified the Court’s sentence of twelve years
on each Count and consecutive.
6. The Court finds the only mitigating circumstance is that he
admitted his guilt.
(App. Vol. III at 80.)
Discussion and Decision
I. Waiver
[10] The State contends McHenry waived his ability to challenge his sentence
pursuant to paragraph 15 of McHenry’s plea agreement. While the plea
agreement stated a defendant has a right to appeal his sentence following an
open plea, the State argues McHenry did not enter an open plea. The State
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dismissed the Level 1 felony count, and the plea agreement defined “open plea”
as “an agreement which leaves the sentence entirely to the Judge’s discretion,
without any limitation or the dismissal of any charges.” (App. Vol. II at 49.)
[11] However, the State’s argument in the case at bar is the same argument that we
considered and rejected in Williams v. State, 51 N.E.3d 1205 (Ind. Ct. App.
2016). 3 In Williams, the defendant agreed to plead guilty to theft after
embezzling money from her employer, and the State agreed to dismiss its
allegation that Williams was a habitual offender. Id. at 1207. After a
sentencing hearing in which the parties argued over the amount of executed
time Williams should be sentenced to serve, the court sentenced her to a fully
executed term of three years in the Indiana Department of Correction. Id. at
1208. Williams’ plea agreement contained a provision substantially similar to
paragraph 15 of McHenry’s plea agreement, and the State argued on appeal
that “because Williams agreed that her plea was not an open plea, she is
foreclosed from challenging her sentence on direct appeal.” Id. at 1209. We
stated:
“An ‘open’ plea is one in which the sentence imposed is left to
the discretion of the court.” Allen v. State, 865 N.E.2d 686, 689
(Ind. [Ct.] App. 2007). Where “a defendant pleads guilty to what
has been characterized as an ‘open plea’ the freedom and latitude
of the trial court to impose a particular sentence is readily
3
The State did not petition for either rehearing or transfer following our decision in Williams.
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apparent.” Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006)
(footnote omitted).
Id. In conclusion, we stated:
We construe contracts against the drafting party, which, in the
case of plea agreements, is the State. As such, we conclude that
this was in fact an open plea, that the parties mistakenly
characterized as not being so. Nevertheless, per the terms of the
plea agreement, Williams was allowed the opportunity to appeal
her sentence from the open plea and may do so here on direct
appeal. This conclusion comports with the trial court’s
sentencing statement on the record after imposing sentence. . . .
At that point the State did not object to the trial court’s
comments or correct the record pursuant to the plea agreement.
We decline to dismiss Williams’ appeal.
Id. at 1209-10 (internal citations and quotation marks omitted).
[12] Like the plea agreement in Williams, McHenry’s plea agreement notified him
that a defendant has a right to appeal the sentence imposed after entering an
open plea and erroneously characterized McHenry’s plea as not an open plea.
The plea agreement left McHenry’s sentence to the trial court’s discretion, and
the trial court was only limited in the sentence it could impose by the statute
outlining the maximum and minimum penalties for a Level 4 felony. Further,
like the trial court in Williams, the trial court herein advised McHenry of his
right to appeal at the end of McHenry’s sentencing hearing, and the State did
not object. Therefore, we reach the same result that we reached in Williams,
and we decline to dismiss McHenry’s appeal.
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II. Appropriateness of Sentence
[13] McHenry argues his aggregate twenty-four-year sentence is inappropriate given
the nature of his offense and his character. We evaluate inappropriate sentence
claims using a well-settled standard of review.
We “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] the sentence
is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. App. R. 7(B). Our role in
reviewing a sentence pursuant to Appellate Rule 7(B) “should be
to attempt to leaven the outliers, and identify some guiding
principles for the trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden
of persuading this court that his or her sentence is inappropriate.”
Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015).
“Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other factors that come to light in
a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.
App. 2014).
Belcher v. State, 138 N.E.3d 318, 328 (Ind. Ct. App. 2019), trans. denied.
[14] When considering the nature of the offense, we first look to the advisory
sentence for the crime. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g 875 N.E.2d 218 (Ind. 2007). Indiana Code section 35-50-2-5.5
states: “A person who commits a Level 4 felony shall be imprisoned for a fixed
term of between two (2) and twelve (12) years, with the advisory sentence being
six (6) years.” Thus, the court imposed a sentence on each count above the
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advisory sentence. In fact, the court imposed the maximum sentence statutorily
allowed.
[15] McHenry argues the facts of his offense “are not ‘egregious’ and certainly do
not consist of anything more than the ‘typical’ offense that the Indiana
legislature contemplated when it set the advisory sentence.” (Appellant’s Br. at
11.) We disagree. As the trial court noted in its sentencing statement, N.W.
and N.S. were at McHenry’s house for the purpose of childcare, and McHenry
exploited that purpose in order to commit his offenses. The nature of
McHenry’s offense was therefore more egregious then the “typical” offense
because he was in a position of trust. Also, McHenry’s offenses caused the
victims to suffer significant harm. The victims’ mother testified at McHenry’s
sentencing hearing regarding the many ways his offenses negatively affected her
daughters. See Hale v. State, 128 N.E.3d 456, 465 (Ind. Ct. App. 2019) (holding
child molester’s sentence was not inappropriate in light of the nature of his
offense when he exploited his position as fiancé of the victim’s mother’s to
commit his crimes and the victim testified regarding the number of ways the
molestations negatively impacted her life), trans. denied.
[16] When assessing the defendant’s character, we consider the defendant’s criminal
history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). “The
significance of criminal history varies based on the gravity, nature, and number
of prior offenses in relation to the current offense.” Id. When McHenry was
fourteen, the juvenile court adjudicated him delinquent after he sexually
assaulted two young boys while his mother was babysitting them. Further, the
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juvenile court determined McHenry violated the terms of his probation when he
performed oral sex on his sister. Additionally, McHenry self-reported to
officers that he reached under his sister’s nightgown and touched her buttocks,
even though the State did not charge him with a crime for doing so. McHenry’s
record of continuing to engage in criminal sexual behavior, even after contacts
with the justice system, reflects poorly on his character. See Weiss v. State, 848
N.E.2d 1070, 1073 (Ind. 2006) (holding defendant’s sentence was not
inappropriate because “[h]is repeated contacts with the criminal justice system
have had no impact on persuading him to reform”).
[17] McHenry partially attributes his offense to the sexual abuse he suffered as a
child. However, despite knowing from personal experience the harm sexual
abuse causes, McHenry chose to sexually molest others. This also does not
reflect well on his character. See Hines v. State, 856 N.E.2d 1275, 1283 (Ind. Ct.
App. 2006) (“Even accepting that Hines was a victim of abuse as a child, the
trial court failed to assign this fact much weight because Hines chose to create
more victims by becoming an abuser himself.”). Therefore, McHenry’s
character does not persuade us that his sentence is inappropriate. See Walters v.
State, 68 N.E.3d 1097, 1103 (Ind. Ct. App. 2017) (holding convicted child
molester’s character did not demonstrate his sentence was inappropriate), trans.
denied.
Conclusion
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[18] We decline the State’s request to dismiss McHenry’s appeal because his plea
agreement allowed him to appeal his sentence following an open plea and the
plea agreement left sentencing entirely to the trial court’s discretion. Further,
we hold that McHenry’s sentence is not inappropriate given the nature of his
offense and his character, particularly in light of McHenry’s continuing acts of
criminal sexual behavior. Therefore, we affirm.
[19] Affirmed.
Robb, J. and Vaidik, J., concur.
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