Carl E. Ascherman v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 17, 2013
• Docket: 15A01-1305-CR-237
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing Dec 17 2013, 9:38 am the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CARL E. ASCHERMAN, ) ) Appellant-Defendant, ) ) vs. ) No. 15A01-1305-CR-237 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Sally A. Blankenship, Judge Cause No. 15D02-1208-FA-16

December 17, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Defendant, Carl Ascherman (Ascherman), appeals his sentence

following a conviction for one Count of attempted child molesting, a Class B felony, Ind.

Code §§ 35-42-4-3(a), -41-5-1; and two Counts of contributing to the delinquency of a

minor, Class A misdemeanors, I.C. § 35-46-1-8.

We affirm.

ISSUES

Ascherman raises two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion when sentencing him; and

(2) Whether his sentence is inappropriate in light of the nature of his offenses and

his character.

FACTS AND PROCEDURAL HISTORY

On July 13, 2012, thirteen-year-old B.L. spent the night at Ascherman’s apartment

in Dearborn County, Indiana, with Ascherman and her best friend L.S., Ascherman’s

thirteen-year-old daughter. According to the probable cause affidavit, L.S. was staying

with Ascherman as part of parental visitation. Ascherman smoked marijuana throughout

the evening and encouraged both girls to do so too. The girls watched television until

approximately 1:00 a.m., when L.S. went to bed, followed by B.L. During the night,

Ascherman removed B.L.’s underwear and placed his penis on or around her vagina.

Ascherman stopped when B.L. said that she had to use the bathroom. Ascherman fell

2 asleep after B.L. declined his invitation to come back to bed. B.L. later called her sister to

pick her up and told her what had occurred. B.L. was taken to the police station.

On July 17, 2012, the State filed an Information charging Ascherman with Counts

I-II, attempted child molesting, Class B felonies, I.C. §§ 35-42-4-3(a), -41-5-1; Count III,

child molesting, a Class C felony, I.C. § 35-42-4-3(b); Counts IV-V, contributing to the

delinquency of a minor, Class A misdemeanors, I.C. § 35-46-1-8; Count VI, possession of

marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; and Count VII, possession of

paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-8.3. On July 24, 2012, the State

moved to amend Counts I and II to attempted child molesting as Class A felonies, I.C. §

35-42-4-3(a)(1), which the trial court granted. On March 26, 2013, the State moved to

amend Count I, categorizing the charge back to attempted child molesting, a Class B

felony, I.C. § 35-42-4-3(a), which the trial court granted.

That same day, the trial court conducted a guilty plea hearing, at which Ascherman

pled guilty to Count I, as amended, and Counts IV-V and admitted the factual basis for his

plea. The trial court accepted Ascherman’s guilty plea, scheduled a sentencing hearing,

and ordered a pre-sentence investigation report (PSI).1

On April 25, 2013, the trial court held the first of two sentencing hearings.

Ascherman explained his problems with substance abuse, the work-related injury that put

1 Subsequently, on May 1, 2013, the parties filed a written plea agreement in which Ascherman agreed to plead guilty to one Count of Class B felony attempted child molesting and two Counts of Class A misdemeanor contributing to the delinquency of a minor in exchange for the State’s dismissal of all other Counts.

3 him on disability, and expressed remorse for his crimes. When asked what he would think

if someone did the same thing to his daughter, Ascherman first replied that each case is

“totally different” but later admitted that he would not want it to occur. (Transcript p. 38).

The State called Ascherman’s ex-wife, and L.S.’s mother, who explained the “irrevocable

harm” Ascherman had done not only to the victim, but to L.S., his own child. (Tr. p. 41).

She, along with the parents of other children who stayed the night at Ascherman’s, had

trusted him to take care of them. B.L.’s mother attended the hearing but did not testify.

The State also read a letter written by B.L., in which she graphically described

Ascherman’s molestation. In particular, B.L. alleged that she was “shaking and scared”

and that Ascherman made her disrobe, fondled her breasts, performed oral sex on her, and

“made [her] suck his thing.” (Tr. pp. 44-45).

On May 1, 2013, the trial court held a sentencing hearing. Reviewing Ascherman’s

criminal history, the trial court noted his three prior convictions for battery, operating a

vehicle while intoxicated and endangering others (OWI), and operating a vehicle with a

suspended license. It found that Ascherman had “a long history of substance abuse,” yet

disputed his claim that he never sought treatment, citing a document attesting to

Ascherman’s month-long participation in after-care following his OWI conviction and the

PSI which described him as reluctant to seek counseling. (Tr. p. 51). Because Ascherman

admitted to daily marijuana use and to providing the drug to L.S. and B.L., the trial court

declined to find his substance abuse as a mitigating factor. Although Ascherman had

advanced his voluntary guilty plea and remorse as mitigating factors, the trial court noted

4 that Class A felony attempted child molesting and other charges were dismissed in

exchange for his plea. Expressly identifying “the impact on both victims,” the “totality of

circumstances,” and the “violation of both victim’s trusts” as aggravating circumstances,

the trial court concluded that the impact from Ascherman’s crimes went “beyond what

would normally be expected in this type of crime.” (Tr. pp. 52-53). Further, the trial court

citied B.L.’s letter and described that B.L. was “shaking, scared and crying” and that

Ascherman had “threatened her to be quiet” while he attempted to commit child molesting.

(Tr. p. 53). Despite the absence of testimony from B.L.’s mother, the trial court stated,

“The victim’s mother testified to the continuing emotional impact on the victim.” (Tr. p.

53). Finding that the aggravators outweighed the mitigators, the trial court sentenced

Ascherman to an executed sentence of twenty years on Count I and to one-year sentences

each on Counts IV-V, with the sentences to run concurrently. That same day, the trial court

issued its judgment of conviction and written sentencing order, reiterating most of the trial

court’s oral sentencing statement. While deleting any reference to B.L.’s mother’s

testimony, the Order cited to that portion of B.L.’s letter which alleged that Ascherman

made her perform oral sex on him and Ascherman’s “prior failure to comply with [c]ourt

ordered treatment.” (Appellant’s App. p. 72).

Ascherman now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Abuse of Discretion

5 Ascherman first argues that the trial court abused its discretion by aggravating his

sentence for Class B felony attempted child molesting based on factors unsupported by the

record. As long as a sentence is within the statutory range, it is subject to review only for

an abuse of discretion. Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against the

logic and effect of the facts and circumstances before the court, or the reasonable, probable,

and actual deductions to be drawn therefrom. Id. One way in which a trial court may abuse

its discretion is by entering a sentencing statement that explains the reasons for imposing

a sentence, including aggravating and mitigating factors, which are not supported by the

record. Id. at 490-91.

Ascherman challenges the validity of three reasons provided by the trial court, in

either its oral sentencing statement or its written sentencing order, to enhance his sentence:

(1) B.L.’s letter where she alleged that Ascherman had made her perform oral sex; (2) the

testimony of B.L.’s mother; and (3) his “failure to comply with [c]ourt ordered treatment.”

(Appellant’s App. p. 72). Regarding B.L.’s letter, we note that victim impact statements

which delve “into substantive, unsworn, and otherwise unsupported allegations of other

misconduct” require caution when assessing their weight and the defendant is without an

opportunity to respond. Cloum v. State, 779 N.E.2d 84, 93 (Ind. Ct. App. 2002). Although

containing a narrative on the impact of the crime, B.L.’s letter also contained unsupported

allegations of additional criminal conduct which the trial court cited in its written

sentencing order. Similarly, the trial court cited the testimony of B.L.’s mother in its oral

6 sentencing statement, despite the fact that she did not testify. Finally, the record does not

support the trial court’s written sentencing statement that Ascherman failed to comply with

court-ordered treatment. By considering the foregoing as aggravators, the trial court

abused its discretion.

When a trial court abuses its discretion in finding an aggravating circumstance, we

will nonetheless affirm the sentence if we can say with confidence that the trial court would

have imposed the same sentence even if it had not considered the improper aggravator.

Alves v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009). Even when a trial court improperly

applies an aggravator, a sentence enhancement may be upheld if other valid aggravators

exist. Walter v. State, 727 N.E.2d 443, 447 (Ind. 1999). Further, a single aggravating

circumstance may be sufficient to support an enhanced sentence. Id. at 448. Here, the trial

court stressed the position of trust in which Ascherman had been placed and that

“marijuana was given to both girls prior to the attempted molestation” as aggravating

factors. (Appellant’s App. p. 72). Therefore, we can say with confidence that the trial

court would have imposed the same sentence even if it had not considered the additional

aggravators cited in its oral and written sentencing order.

II. Nature of Offense and Character of Offender

Ascherman next argues that his sentence was inappropriate in light of the nature of

the offense and his character. Admitting the gravity of his crimes, he requests us to reduce

his maximum Class B felony sentence to the advisory sentence of ten years. Under Indiana

Appellate Rule 7(B), this court may revise a sentence authorized by statute if, after due

7 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. Childress v. State,

848 N.E.2d 1073, 1079-80 (Ind. 2006). Although this court is not required to use “great

restraint,” we nevertheless exercise deference to a trial court’s sentencing decision, both

because Appellate Rule 7(B) requires that we give “due consideration” to that decision and

because we recognize the unique perspective a trial court has when making decisions.

Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App. 2007). The “principal role of

appellate review should be to attempt to leaven the outliers, and identify some guiding

principles for 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 burden is on the defendant to persuade us that his sentence is

inappropriate. Childress, 848 N.E.2d at 1073.

A Class B felony carries a sentence ranging from six to twenty years, with an

advisory sentence of ten years. See I.C. § 35-50-2-5. Because the trial court sentenced

Ascherman to twenty years on the Class B felony attempted child molesting, he received

the maximum sentence possible.

In regards to the nature of his offense, Ascherman argues that his crime is no more

egregious than the typical offense already accounted for by the legislature when

establishing the advisory sentence for child molesting. We disagree. Ascherman offered

marijuana to both L.S. and B.L., both of whom were thirteen-years old. Ascherman took

advantage of the girls’ trust by sleeping with the girls in the same bed then attempted to

8 molest B.L. after L.S. fell asleep. Further, we cannot ignore the impact Ascherman’s

crimes had on B.L., her family, as well as his own daughter, his ex-wife, and the parents

of the other girls who had spent the night there. The nature of the offense thus demonstrates

that Ascherman’s crime well exceeded the typical offense.

Turning to his character, Ascherman argues that his sentence is inappropriate

because of his minimal criminal history and his need for rehabilitation. In particular,

Ascherman asserts that he is not a “career criminal.” (Appellant’s Br. p. 13). The PSI

showed that Ascherman had three prior misdemeanor convictions, including battery and

operating a vehicle while intoxicated and endangering a person. Although not felonies,

these crimes illustrate an escalated disregard for others. Further, Ascherman asserts that

he “never had the opportunity to try to correct his aberrant behavior before being sent to

prison.” (Appellant’s Br. p. 13). However, the PSI records that Ascherman was sent to

“aftercare” following his OWI conviction and was “hostile” and “resistant” to treatment.

(Appellant’s App. p. 94). The PSI also states that Ascherman “does not believe he needs

AA or substance abuse counseling,” despite his admitted daily use of marijuana and his

proffered excuse that he was unconscious when he attempted to molest B.L. (Appellant’s

App. p. 94). In sum, Ascherman has not met his burden to show that the nature of his

offense or Ascherman’s character render his sentence inappropriate.

CONCLUSION

Based on the foregoing, while the trial court abused its discretion by considering

improper aggravators, because we can say with confidence that the trial court would have

9 imposed the same sentence even if it had not considered three improper aggravators, we

need not remand for re-sentencing. Further, Ascherman’s sentence is not inappropriate in

light of the nature of the offense and the character of the offender.

Affirmed.

ROBB, C. J. and KIRSCH, J. concur