Anthony D. Thomas v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 9, 2017
• Docket: 02A03-1701-CR-66
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jun 09 2017, 9:33 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony S. Churchward Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Anthony S. Churchward, P.C. Eric P. Babbs Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony D. Thomas, June 9, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1701-CR-66 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D06-1608-F4-52

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017 Page 1 of 5 Case Summary and Issue [1] Anthony Thomas pleaded guilty to three counts of sexual misconduct with a

minor as Level 4 felonies, one count of the same as a Level 5 felony, and one

count of contributing to the delinquency of a minor as a Class A misdemeanor.

Thomas also admitted he is a repeat sexual offender. The trial court sentenced

Thomas to an aggregate sentence of eighteen years in the Indiana Department

of Correction. On appeal, Thomas raises one issue for our review: whether his

sentence is inappropriate in light of the nature of the offenses and his character.

Concluding his sentence is not inappropriate, we affirm.

Facts and Procedural History [2] In July 2016, Thomas and fourteen-year-old B.W. were present in the same

home when Thomas provided B.W. with alcohol and marijuana. At some

point, Thomas took B.W. to a bedroom and demanded she remove her

clothing. Thomas then proceeded to perform oral sex, digital penetration, and

sexual intercourse with B.W. despite B.W.’s requests he stop. Thomas also

later asked B.W. not to tell anyone, and when questioned by law enforcement,

Thomas denied B.W.’s allegations.

[3] On August 2, 2016, the State charged Thomas with three counts of sexual

misconduct with a minor as Level 4 felonies, one count of the same as a Level 5

felony, and one count of contributing to the delinquency of a minor as a Class

A misdemeanor. The State also alleged Thomas was a repeat sexual offender.

Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017 Page 2 of 5 Without the benefit of a plea agreement, Thomas pleaded guilty as charged. At

the sentencing hearing, the parties agreed that given the fact Thomas’

convictions arose out of only one episode of criminal conduct, the maximum

sentence the trial court could impose was fifteen years, see Ind. Code § 35-50-1-

2(d)(3), in addition to a six-year enhancement due to Thomas’ status as a repeat

sexual offender, see Ind. Code § 35-50-2-14(f). The trial court then sentenced

Thomas to twelve years for the underlying offenses plus a six-year enhancement

due to his status as a repeat sexual offender for an aggregate sentence of

eighteen years. This appeal ensued.

Discussion and Decision [4] Indiana Appellate Rule 7(B) states, “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.” On appeal, the defendant bears

the burden of persuading this court his or her 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). The

principal role of appellate review is to “leaven the outliers,” not to achieve the

perceived “correct” result in each case. Id. at 1225.

Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017 Page 3 of 5 [5] The advisory sentence is the starting point the legislature selected as an

appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d

482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Here, Thomas

was convicted of three Level 4 felonies, one Level 5 felony, and one Class A

misdemeanor. A person who commits a Level 4 felony shall be imprisoned for

a fixed term of between two and twelve years, with the advisory sentence being

six years. Ind. Code § 35-50-2-5.5. A person who commits a Level 5 felony

shall be imprisoned for a fixed term of between one and six years, with the

advisory sentence being three years. Ind. Code § 35-50-2-6(b). And a person

convicted of a Class A misdemeanor faces a maximum sentence of one year.

Ind. Code § 35-50-3-2. Excluding the repeat sexual offender enhancement, the

trial court sentenced Thomas to an aggregate sentence of twelve years.

[6] As to the nature of the offense, we note Thomas first provided B.W. with

intoxicating substances. He then proceeded to perform numerous sexual acts

on B.W. without B.W.’s consent and contrary to her requests that he stop. In

addition, Thomas asked B.W. to keep the misconduct a secret. As to his

character, we acknowledge Thomas pleaded guilty thereby indicating some

ability to take responsibility for his conduct, but note this was only done after

he had already denied any culpability to law enforcement. In addition, Thomas

has an extensive criminal history, which includes previous convictions for

sexual misconduct with a minor, battery, invasion of privacy, criminal

conversion, criminal mischief, and criminal trespass. Thomas has not

persuaded us his sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017 Page 4 of 5 Conclusion [7] We conclude Thomas’ sentence is not inappropriate in light of the nature of the

offenses and his character. Accordingly, we affirm.

[8] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017 Page 5 of 5