Derrick Hicks v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2020
• Docket: 19A-CR-1745
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 21 2020, 8:18 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derrick Hicks, February 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1745 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina Appellee-Plaintiff. Klineman, Pro Tempore Trial Court Cause No. 49G05-1208-FA-55873

Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 1 of 9 Case Summary [1] Derrick Hicks brings this belated appeal of his eighty-four-year aggregate

sentence for attempted child molesting, a Class A felony; two counts of child

molesting, Class A felonies; child molesting, a Class C felony; rape, a Class B

felony; two counts of incest, Class B felonies; and battery, a Class D felony.

We affirm.

Issue [2] The sole issue on appeal is whether Hicks’ sentence is inappropriate in light of

the nature of the offenses and his character.

Facts [3] The factual basis entered during Hicks’ guilty plea hearing of August 7, 2014,

provided as follows: in 2006, Hicks was awarded primary custody of his

daughter, M.W., who moved into Hicks’ Speedway residence. Over the

ensuing four years, Hicks molested M.W. on a weekly basis. On the first

occasion, which occurred when M.W. was eight years old, Hicks touched

M.W.’s genitals over and under her clothing and attempted to insert his penis in

M.W.’s vagina.

[4] When M.W. was ten years old, Hicks forced M.W. to submit to sexual

intercourse. On that occasion, M.W. attempted to shield her vagina from

Hicks, but Hicks hit M.W.’s face with a closed fist and forced his penis into her

vagina. Hicks had sexual intercourse with M.W. a minimum of twenty times in

Marion County. M.W. became pregnant when she was eleven years old. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 2 of 9 [5] In September 2010, Hicks moved with M.W. to East Chicago in Lake County. 1

In December 2010, when M.W. was twelve years old, M.W. gave birth to a

child, L.W. After L.W.’s birth, Hicks continued to molest M.W.

[6] In June 2012, DNA testing established, by a 99.9999% probability, that Hicks is

L.W.’s biological father. On June 30, 2012, Lake County officials charged

Hicks with various offenses stemming from his East Chicago crimes against

M.W. in 2010. Hicks pleaded guilty to child molesting, a Class A felony;

incest, a Class B felony; and sexual misconduct with a minor, a Class D felony.

In June 2013, Hicks was sentenced to an aggregate term of fifty years in the

Department of Correction (“DOC”). 2 Hicks was found to be an habitual

offender, and his sentence was enhanced by thirty years. We affirmed Hicks’

sentence for the Lake County offenses. See Hicks v. State, No. 45A03-1307-CR-

265, slip op. at 1 (Ind. Ct. App. April 29, 2014).

[7] On August 13, 2012, Marion County officials charged Hicks with attempted

child molesting, a Class A felony; two counts of child molesting, Class A

felonies; rape, a Class B felony; two counts of incest, Class B felonies; child

molesting, a Class C felony; and battery, a Class D felony, for offenses that

Hicks committed against M.W. in Marion County from 2006 to 2010.

1 The probable cause affidavit provides that, in October 2010, after Hicks and M.W. moved to East Chicago, the Indiana Department of Child Services received a tip that Hicks was molesting M.W. and that M.W. was pregnant with Hicks’ child. See Appellant’s App. Vol. II p. 18. 2 Lake County officials dismissed the remaining counts—intimidation, battery resulting in bodily injury, and obstruction of justice, as Class D felonies—in exchange for Hicks’ plea.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 3 of 9 [8] On August 7, 2014, the date of Hicks’ scheduled jury trial in Marion County,

Hicks pleaded guilty to all counts without a plea agreement and admitted that

the State’s factual basis was accurate. On September 9, 2014, the trial court

imposed an eighty-four-year aggregate sentence, to be served in the DOC

consecutively to Hicks’ sentence for the Lake County offenses.

[9] Hicks subsequently appealed his Marion County convictions and sentence. In

an unpublished memorandum decision, we found that we could not address

Hicks’ only valid 3 claim—the alleged inappropriateness of his sentence—due to

errors in the trial court’s sentencing order. See Hicks v. State, No. 49A02-1504-

CR-195, slip op. at 1 (Ind. Ct. App. November 25, 2015). We remanded to the

trial court to correct its sentencing order, which occurred on March 16, 2016.

Hicks sought leave to file a belated appeal on June 28, 2019, which was

granted. Hicks now appeals.

Analysis [10] Hicks argues that his eighty-four-year aggregate sentence is inappropriate in

light of the nature of the offenses and his character. Specifically, Hicks asks us

to modify his sentence to run concurrently with his Lake County sentence.

[11] Indiana Appellate Rule 7(B) provides that this Court may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, we

3 We deemed Hicks’ challenge to his convictions on double jeopardy grounds to be waived because he pleaded guilty.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 4 of 9 find that the sentence “is inappropriate in light of the nature of the offense and

the character of the offender.” The defendant bears the burden to persuade this

court that his or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259,

1266 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006)), trans. denied.

[12] In Indiana, trial courts can tailor an appropriate sentence to the circumstances

presented; the trial court’s judgment receives “considerable deference.” Sanders

v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see

whether the defendant’s sentence is appropriate or “if another sentence might

be more appropriate; rather, the question is whether the sentence imposed is

inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008)). When determining whether a sentence is

inappropriate, the advisory sentence is the starting point the legislature has

selected as an appropriate sentence for the crime committed. Childress, 848

N.E.2d at 1081.

[13] Here, Hicks was convicted of attempted child molesting, a Class A felony; two

counts of child molesting, Class A felonies; child molesting, a Class C felony;

rape, a Class B felony; two counts of incest, Class B felonies; and battery, a

Class D felony.

• The sentencing range for a Class A felony is a fixed term of between twenty and fifty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4. For Hicks’ three Class A felony convictions, the trial

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 5 of 9 court imposed a thirty-year advisory sentence; an enhanced forty-five- year sentence; and a maximum, fifty-year sentence.

• The sentencing range for a Class B felony is a fixed term of between six and twenty years, with the advisory sentence being ten years. I.C. § 35- 50-2-5. On Hicks’ three Class B felony convictions, the trial court imposed two enhanced, seventeen-year sentences and one maximum, twenty-year sentence.

• The sentencing range for a Class C felony is a fixed term of between two and eight years, with the advisory sentence being four years. I.C. § 35- 50-2-6. The trial court imposed an enhanced, six-year sentence for Hicks’ Class C felony conviction.

• The sentencing range for a Class D felony is between six months and three years, with an advisory sentence of one and one-half years. I.C. § 35-50-2-7. As to Hicks’ Class D felony conviction, the trial court imposed a maximum, three-year sentence.

The trial court, thus, enhanced the sentences on seven of Hicks’ eight

convictions, including three maximum sentences. In all, Hicks faced a

maximum aggregate sentence of two hundred and twenty-one years. The trial

court, by application of concurrent and consecutive terms, imposed an eighty-

four-year aggregate sentence.

[14] 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). The nature of the

instant offenses is as follows: for a four-year period beginning in 2006, Hicks

molested his biological daughter, M.W., and committed incest with her in

Marion County. When M.W. was eight years old, Hicks fondled her genitalia

and attempted to have sexual intercourse with her. Thereafter, Hicks molested

M.W. on a weekly basis. When M.W. was ten years old, Hicks again initiated

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 6 of 9 sexual intercourse with M.W., struck M.W.’s face with his closed fist when she

resisted, and raped M.W. M.W. became pregnant when she was eleven years

old and gave birth to L.W. when M.W. was twelve years old. DNA testing

conclusively identified Hicks as L.W.’s father. The depravity and extent of

Hicks’ crimes support the eighty-four-year aggregate sentence.

[15] Our assessment of the character of an offender requires us to consider the

defendant’s age, criminal history, background, and remorse. James v. State, 868

N.E.2d 543, 548-59 (Ind. Ct. App. 2007). Regarding Hicks’ character, we

initially note that, at the sentencing hearing, the State argued that Hicks was

among the worst of the worst offenders. We, first, gain insight into Hicks’

character from his own willful and protracted misconduct. After Hicks was

awarded custody of then-eight-year-old M.W., he violated his position of trust

as a parent when he molested, intimidated, forcibly raped, and impregnated

M.W. As unfathomable as it is that a father could visit these horrors on his

child, Hicks was undeterred by either conscience or by the consequence of

M.W.’s pregnancy. The record reveals that Hicks simply moved with M.W. to

Lake County, where Hicks resumed his sexual abuse of M.W. after M.W. gave

birth. Hicks’ unthinkable acts reflect poorly upon his character.

[16] We can also garner insight into Hicks’ character from his prior criminal history.

See Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014) (“Even a minor

criminal history is a poor reflection of a defendant’s character.”). According to

the presentence investigation report, Hicks has been involved with the criminal

justice system since he was twenty years old. Hicks was forty years old when

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 7 of 9 he was sentenced for the instant offenses and has amassed five misdemeanor

and thirteen felony convictions, including the instant offenses and the Lake

County offenses. 4 In addition to the Lake County and Marion County

convictions, Hicks’s prior criminal history includes convictions for battery

resulting in bodily injury, a Class A misdemeanor (1993); residential entry, a

Class D felony (1994); domestic violence, a misdemeanor 5 (1996); assault with

a dangerous weapon, a felony6 (1997); and conversion, a Class A misdemeanor

(2009). Hicks’ failure to be deterred from criminal activity by contacts with the

justice system shows his disdain for the rule of law and reflects poorly on his

character.

[17] We glean even further insight into Hicks’ character from his background, which

includes years of untreated alcoholism. In his brief, Hicks readily attributes his

horrific acts to his addiction. See Appellant’s Br. pp. 11, 15 (“[Hicks’] crimes

were facilitated by an alcohol problem, which problem he admits, but he has

never had treatment.”). Assuming that alcoholism played any role in Hicks’

Marion County offenses against M.W., Hicks’ failure to pursue treatment

reflects poorly on his character. See Bryant v. State, 802 N.E.2d 486, 501 (Ind.

Ct. App. 2004) (holding that the trial court did not err in finding substance

4 At the sentencing hearing, Hicks disputed three convictions that were included on the State’s presentence investigation report, and the trial court “note[d] [ ] that [Hicks] denie[d] the convictions.” Tr. Vol. II p. 25. We have not included the disputed convictions in our assessment of Hicks’ criminal history. 5 The misdemeanor designation for this offense is unclear from the record. 6 The felony designation for this offense is unclear from the record.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1745 | February 21, 2020 Page 8 of 9 abuse to be an aggravating factor where defendant was aware of—yet took no

actions to treat—his addiction).

[18] Based on the foregoing, we cannot say that Hicks’ aggregate eighty-four-year

sentence is inappropriate in light of the nature of his offenses and his character. 7

Conclusion [19] Hicks’ sentence is not inappropriate in light of the nature of his offenses and his

character. We affirm.

[20] Affirmed.

Najam, J., and Vaidik, J., concur.

7 We are not moved by Hicks’ repeated contention that “the trial court here took into account the conduct that occurred in Lake County.” Hicks’ Br. p. 18. Our review of the trial court’s sentencing statement reveals a well-considered approach to sentencing, for the Marion County offenses, that specifically accounted for the fact that the Lake County court already “used the conception of [L.W.] to aggravate that [ ] sentence[.]” See Tr. Vol. II p. 34.

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