Charles A. Allman 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 Sep 29 2017, 11:21 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, IN
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, IN
IN THE
COURT OF APPEALS OF INDIANA
Charles A. Allman, September 29, 2017
Appellant-Defendant, Court of Appeals Case No.
36A01-1704-CR-883
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff Poynter, Judge
Trial Court Cause No.
36C01-1603-FA-1
Vaidik, Chief Judge.
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Case Summary
[1] Charles A. Allman molested his stepdaughter for nearly a decade and was
charged with seventeen felonies. He pled guilty to one of the charges, Class A
felony child molesting, and was sentenced to forty-five years. He now appeals,
arguing that his “nearly maximum sentence” is inappropriate. Because Allman
has failed to persuade us that his sentence is inappropriate, we affirm.
Facts and Procedural History
[2] In October 2015, twenty-one-year-old D.G. reported to DCS that her stepfather,
Allman, had molested her starting in 1999 when she was five years old and
continuing until 2008 when she was fourteen years old. The molestations,
which occurred while D.G.’s mother was not home, started with French kissing
and fondling while Allman and D.G. played a game called “tent;” progressed to
fellatio on Allman and digital penetration of D.G.’s vagina; advanced to
attempted vaginal and anal intercourse when D.G. was about nine or ten years
old; and culminated with sexual intercourse in 2008 when D.G. was fourteen
years old. In addition, Allman took photographs and videos of D.G. in various
sexual positions during this period.
[3] Allman was arrested in March 2016. When police took him into custody, he
confessed to molesting D.G. The State ultimately charged Allman with
seventeen felonies, including child molesting and attempted child molesting,
vicarious sexual gratification, sexual misconduct with a minor, and child
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solicitation. The charged conduct covers nine years (1999 to 2008) and
contains the following breakdown of felonies: ten Class A felonies, two Class B
felonies, three Class C felonies, and two Class D felonies.
[4] In February 2017, Allman and the State entered into a plea agreement in which
Allman agreed to plead guilty to one of the counts: Count 1, Class A felony
child molesting (fellatio), which alleges that the act occurred between January
1, 1999, and June 30, 2001. In exchange, the State agreed to dismiss the
remaining sixteen counts. According to the plea agreement, the trial court had
the “sole discretion” to determine Allman’s sentence. Appellant’s App. Vol. II
p. 59.
[5] At the March 2017 sentencing hearing, Allman, who was fifty-two years old,
testified that he was “sorry for anything [he’s] done to hurt [D.G.]” and that he
was “sorry it ever happened.” Sent. Tr. p. 12. D.G., who was married and had
a child, testified that she had intended not to tell anyone about the molestations
because Allman had convinced her that “everyone would be mad at [her] if
[she] told anyone.” Id. at 20. She said that she had been “desperate” to tell
someone but was “so scared” of her family “hat[ing]” her because of “how [it]
would change all of [their] lives.” Id. D.G. also testified that over the years,
Allman had threatened her with weapons, physical violence, and criminal
prosecution for prostitution. She said that the day before her wedding, Allman
had asked her to have sexual intercourse “one more time.” Id. at 26. When she
said no, Allman said that he was just testing her and that she had his blessing to
get married. D.G. testified that she decided to come forward in October 2015
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when her fourteen-year-old half-sister (Allman’s biological daughter) alleged
that Allman had “grabb[ed] and smack[ed] [her] butt” and was coming into the
bathroom while she showered. Id. at 21. D.G. explained that she did not want
her half-sister to go through what she did.
[6] The trial court identified the following aggravators: (1) D.G. was between five
and seven years old when the conduct underlying Count 1 happened; (2)
Allman was D.G.’s stepfather and abused his position of trust; (3) Allman is
likely to reoffend; (4) the nature and circumstances of the crime in that the
molestations occurred over a long period of time and Allman scared D.G. into
hiding the abuse. The court identified one mitigator: Allman pled guilty. The
court found that the aggravators “grossly outweigh[ed]” Allman’s guilty plea to
Count 1. Id. at 41. The court sentenced Allman to forty-five years in the
Department of Correction.
[7] Allman now appeals his sentence.
Discussion and Decision
[8] Allman contends that his “nearly maximum sentence” of forty-five years is
inappropriate. Appellant’s Br. p. 9. Allman asks us to reduce it pursuant to
Indiana Appellate Rule 7(B), which provides that an appellate 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.” Because we generally
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defer to the judgment of trial courts in sentencing matters, Norris v. State, 27
N.E.3d 333, 335-36 (Ind. Ct. App. 2015), defendants have the burden of
persuading us that their sentences are inappropriate, Thompson v. State, 5 N.E.3d
383, 391 (Ind. Ct. App. 2014). “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.” Id. (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)).
[9] Here, Allman faced a sentencing range of twenty to fifty years, with an advisory
sentence of thirty years. Ind. Code § 35-50-2-4(a). The trial court sentenced
him to forty-five years.1
[10] Allman makes no argument that the nature of his offense warrants a reduction
in his sentence. Instead, Allman focuses entirely on his character. Allman
notes that he had no criminal record before his arrest in this case, has no history
of substance abuse, has a GED, and was employed as a sales associate at
Walmart for eleven years at the time of his arrest. While all these things may
be true, the heinous nature of Allman’s offense more than justifies his forty-five-
year sentence in this case. Allman molested his stepdaughter for nearly a
decade, starting when she was five years old, threatened her with weapons if
she told anyone, took pictures and videos of her in sexual positions, and
1
Although Allman pled guilty to only one count covering 1999 to 2001, he admits on appeal that his
“inappropriate conduct” continued well past 2001. See Appellant’s Br. p. 7. Pursuant to Allman’s guilty
plea, the maximum sentence he faced was fifty years. As the State notes, he faced hundreds of years had he
been convicted of all charges. See Appellee’s Br. p. 13.
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continued his inappropriate behavior on the eve of her wedding. Although
Allman admitted to police that he had molested D.G. and pled guilty to one of
the counts, sixteen felonies were dismissed. Allman has failed to persuade us
that his less-than-maximum sentence for one count of Class A felony child
molesting is inappropriate.
[11] Affirmed.
Mathias, J., and Crone, J., concur.
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