Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Apr 29 2014, 10:11 am 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:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER Appellate Public Defender Attorney General of Indiana Crown Point, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DERRICK A. HICKS, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1307-CR-265 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge Cause No. 45G03-1206-FA-17
April 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Derrick A. Hicks appeals his sentence of seventy years after his plea of guilty to Class
A felony child molesting,1 Class B felony incest,2 Class B felony sexual misconduct with a
minor,3 and the finding that he is an habitual offender.4 Hicks alleges his sentence is
inappropriate in light of his character and the nature of his offenses. We affirm.
FACTS AND PROCEDURAL HISTORY
From December 10, 2010, to April 7, 2012, Derrick Hicks resided in East Chicago
with his daughter, M.W. Throughout this time, Hicks engaged in sexual intercourse with
M.W. multiple times, and M.W. gave birth to Hicks’ child. At the beginning of this period,
Hicks was over the age of twenty-one and M.W. was under fourteen.
Hicks was charged with Class A felony child molesting, Class B felony incest, Class B
felony sexual misconduct with a minor, Class D felony intimidation,5 Class D felony battery,6
Class D felony obstruction of justice,7 and was alleged to be an habitual offender. On
January 17, 2013, Hicks agreed to plead guilty to the counts of child molesting, incest, and
sexual misconduct with a minor in exchange for the dismissal of the other charges. On
March 28, 2013, Hicks moved to withdraw his plea and he requested a new public defender.
The trial court denied the motion and Hicks again agreed to plead guilty. After
1 Ind. Code § 35-42-4-3. 2 Ind. Code § 35-46-1-3. 3 Ind. Code § 35-42-4-9. 4 Ind. Code § 35-50-2-8. 5 Ind. Code § 35-45-2-1. 6 Ind. Code § 35-42-2-1. 7 Ind. Code § 35-44.1-2-2. 2 making findings of mitigating and aggravating circumstances,8 the court sentenced Hicks to
thirty years for child molestation, ten years for incest, and ten years for sexual misconduct
with a minor. The incest sentence would be served consecutively to the child molestation
sentence, and the sexual misconduct with a minor sentence would be served concurrently
with the sentence for incest, for a sentence of forty years. The court also found Hicks to be
an habitual offender and enhanced his sentence by thirty years, for an aggregate sentence of
seventy years.
DISCUSSION AND DECISION
We may revise a sentence 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.” Ind. Appellate Rule 7(B) (emphasis added). The appellant bears
the burden of demonstrating the sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). We do not give complete deference to the trial court, but we
recognize “the unique perspective a trial court brings to its sentencing decisions” and give
due consideration to its decision. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.
2008) (quoting Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007)).
In analyzing the “nature of the offense” prong of a Rule 7(B) analysis, the advisory
sentence is the starting point that the legislature has determined to be appropriate for a given
8 The trial court found as a mitigating factor that Hicks did not have the benefit of a plea agreement. It found as aggravating factors that the “harm suffered by the victim of the offense was greater than the elements necessary to prove the commission of the crime; in that it lasted over an extended period of time and that a child was conceived out of those sexual encounters,” that Hicks had two prior felony convictions, and that Hicks was in a position of trust with the victim. (App. at 51.) 3 crime. Anglemyer v. State, 868 N.E.2d 482, 494, clarified on reh’g, 875 N.E.2d 218 (Ind.
2007). The advisory sentence for a Class A felony is thirty years with a range of twenty to
fifty years. Ind. Code § 35-50-2-4. The advisory sentence for a Class B felony is ten years
with a range of six to twenty years. Ind. Code § 35-50-2-5. The sentence enhancement for
an habitual offender finding is “an additional fixed term that is not less than the advisory
sentence for the underlying offense nor more than three (3) times the advisory sentence for
the underlying offense. However, the additional sentence may not exceed thirty (30) years.”
Ind. Code § 35-50-2-8.
Our analysis of the “nature of the offense” requires us to look at the extent and
depravity of the offense rather than comparing the facts at hand to other cases. Brown v.
State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied. Hicks was the victim’s
father. For several years, he sexually molested his daughter beginning at a time when she
was under the age of fourteen, and she became pregnant with Hicks’ child.
In light of the nature of the offense, Hicks’ sentence was not appropriate. The trial
court sentenced Hicks to the advisory sentence for each count -- thirty years for the Class A
felony count, ten years for both Class B felony counts, and thirty years for the habitual
offender finding attached to the Class A felony child molestation count. The depravity and
extent of the crime permit the sentence imposed. Cf. Brown, 760 N.E.2d at 247.
In looking at the character of an offender, we consider the defendant’s age, criminal
history, background, and remorse. James v. State, 868 N.E.2d 543, 548-49 (Ind. Ct. App.
2007).
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Apr 29 2014, 10:11 am 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:
KRISTIN A. MULHOLLAND GREGORY F. ZOELLER Appellate Public Defender Attorney General of Indiana Crown Point, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DERRICK A. HICKS, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1307-CR-265 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge Cause No. 45G03-1206-FA-17
April 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Derrick A. Hicks appeals his sentence of seventy years after his plea of guilty to Class
A felony child molesting,1 Class B felony incest,2 Class B felony sexual misconduct with a
minor,3 and the finding that he is an habitual offender.4 Hicks alleges his sentence is
inappropriate in light of his character and the nature of his offenses. We affirm.
FACTS AND PROCEDURAL HISTORY
From December 10, 2010, to April 7, 2012, Derrick Hicks resided in East Chicago
with his daughter, M.W. Throughout this time, Hicks engaged in sexual intercourse with
M.W. multiple times, and M.W. gave birth to Hicks’ child. At the beginning of this period,
Hicks was over the age of twenty-one and M.W. was under fourteen.
Hicks was charged with Class A felony child molesting, Class B felony incest, Class B
felony sexual misconduct with a minor, Class D felony intimidation,5 Class D felony battery,6
Class D felony obstruction of justice,7 and was alleged to be an habitual offender. On
January 17, 2013, Hicks agreed to plead guilty to the counts of child molesting, incest, and
sexual misconduct with a minor in exchange for the dismissal of the other charges. On
March 28, 2013, Hicks moved to withdraw his plea and he requested a new public defender.
The trial court denied the motion and Hicks again agreed to plead guilty. After
1 Ind. Code § 35-42-4-3. 2 Ind. Code § 35-46-1-3. 3 Ind. Code § 35-42-4-9. 4 Ind. Code § 35-50-2-8. 5 Ind. Code § 35-45-2-1. 6 Ind. Code § 35-42-2-1. 7 Ind. Code § 35-44.1-2-2. 2 making findings of mitigating and aggravating circumstances,8 the court sentenced Hicks to
thirty years for child molestation, ten years for incest, and ten years for sexual misconduct
with a minor. The incest sentence would be served consecutively to the child molestation
sentence, and the sexual misconduct with a minor sentence would be served concurrently
with the sentence for incest, for a sentence of forty years. The court also found Hicks to be
an habitual offender and enhanced his sentence by thirty years, for an aggregate sentence of
seventy years.
DISCUSSION AND DECISION
We may revise a sentence 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.” Ind. Appellate Rule 7(B) (emphasis added). The appellant bears
the burden of demonstrating the sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). We do not give complete deference to the trial court, but we
recognize “the unique perspective a trial court brings to its sentencing decisions” and give
due consideration to its decision. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.
2008) (quoting Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007)).
In analyzing the “nature of the offense” prong of a Rule 7(B) analysis, the advisory
sentence is the starting point that the legislature has determined to be appropriate for a given
8 The trial court found as a mitigating factor that Hicks did not have the benefit of a plea agreement. It found as aggravating factors that the “harm suffered by the victim of the offense was greater than the elements necessary to prove the commission of the crime; in that it lasted over an extended period of time and that a child was conceived out of those sexual encounters,” that Hicks had two prior felony convictions, and that Hicks was in a position of trust with the victim. (App. at 51.) 3 crime. Anglemyer v. State, 868 N.E.2d 482, 494, clarified on reh’g, 875 N.E.2d 218 (Ind.
2007). The advisory sentence for a Class A felony is thirty years with a range of twenty to
fifty years. Ind. Code § 35-50-2-4. The advisory sentence for a Class B felony is ten years
with a range of six to twenty years. Ind. Code § 35-50-2-5. The sentence enhancement for
an habitual offender finding is “an additional fixed term that is not less than the advisory
sentence for the underlying offense nor more than three (3) times the advisory sentence for
the underlying offense. However, the additional sentence may not exceed thirty (30) years.”
Ind. Code § 35-50-2-8.
Our analysis of the “nature of the offense” requires us to look at the extent and
depravity of the offense rather than comparing the facts at hand to other cases. Brown v.
State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied. Hicks was the victim’s
father. For several years, he sexually molested his daughter beginning at a time when she
was under the age of fourteen, and she became pregnant with Hicks’ child.
In light of the nature of the offense, Hicks’ sentence was not appropriate. The trial
court sentenced Hicks to the advisory sentence for each count -- thirty years for the Class A
felony count, ten years for both Class B felony counts, and thirty years for the habitual
offender finding attached to the Class A felony child molestation count. The depravity and
extent of the crime permit the sentence imposed. Cf. Brown, 760 N.E.2d at 247.
In looking at the character of an offender, we consider the defendant’s age, criminal
history, background, and remorse. James v. State, 868 N.E.2d 543, 548-49 (Ind. Ct. App.
2007). Hicks’ character does not require a reduction in his sentence. While we acknowledge
4 Hicks’ testimony regarding his harsh treatment as a child, Hicks, in his forties, has numerous
criminal convictions. Two are the felonies supporting the habitual offender finding.9 His
most recent conviction is based on the sexual molestation of his daughter over the course of
multiple years. While Hicks argues his apology letter demonstrates remorse for his crime, it
does not lessen the effects his actions had on his daughter. Hicks’ character does not support
finding his sentence is inappropriate.
Hicks has not demonstrated that his sentence is inappropriate based on his character
and the nature of the offense. Accordingly, we affirm.
Affirmed.
VAIDIK, C.J., and RILEY, J., concur.
9 Hicks argues that, under Frye v. State, these felonies are significantly old so as to not be given much weight. Frye v. State, 837 N.E.2d 1012 (Ind. 2005) (reh’g. denied). However, Frye is distinguishable. In Frye, our Indiana Supreme Court reduced Frye’s burglary sentence from forty years to twenty-five. Id. at 1015. The trial court calculated Frye’s forty year sentence based on ten years for the burglary offense, five years for an enhancement, and twenty-five years because Frye was an habitual offender. Id. at 1014. There the trial court increased the habitual offender enhancement over the presumptive sentence, which the Supreme Court found inappropriate in light of the nature of the offense or Frye’s character. Id. Here, however, the trial court did not exceed the presumptive sentence for the habitual offender finding, but rather followed the language of the statute which provides an “additional fixed term that is not less than the presumptive sentence for the underlying offense.” Ind. Code § 35-50-2-8(h). As the trial court followed the language of the statute, we find no error. 5