MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 09 2015, 7:21 am regarded as precedent or cited before 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 Marce Gonzalez, Jr. Gregory F. Zoeller Dyer, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Harold Randy Hughes, December 9, 2015 Appellant-Defendant, Court of Appeals Case No. 45A03-1502-CR-56 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1309-FB-82
Mathias, Judge.
[1] Harold Randy Hughes (“Hughes”) pleaded guilty in Lake Superior Court to
Class C felony sexual misconduct with a minor. He was ordered to serve seven
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 1 of 6 and one-half years in the Department of Correction. Hughes appeals and argues
that his sentence is inappropriate in light of the nature of the offense and the
character of the offender.
[2] We affirm.
Facts and Procedural History
[3] Hughes, who was sixty years old, engaged in sexual misconduct with fourteen-
year-old N.J. Hughes met N.J. at a festival in Dyer, Indiana during the summer
of 2013. Shortly thereafter, they began communicating via text messages and
telephone calls. On August 10, 2013, Hughes arranged to pick N.J. up, and they
returned to Hughes’ residence where Hughes engaged in sexual deviate conduct
with N.J.
[4] N.J.’s guardian tracked her to Hughes’ residence through her cell phone.
Hughes refused to allow N.J.’s guardian into the residence. Hughes told her
guardian to get off of his property. N.J.’s guardian returned to his vehicle and
called the police.
[5] When the police arrived, Hughes told the officer that he and N.J. had done
nothing wrong and he was simply showing her how to use Facebook. Police
officers then entered Hughes’ residence, located N.J. in Hughes’ bedroom, and
returned her to her guardian.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 2 of 6 [6] A no-contact order was entered against Hughes naming N.J. as the protected
person. One week after N.J. was found at Hughes’ residence, Hughes violated
the protective order and met N.J. in a park.
[7] In September 2013, Hughes was charged with Class B felony sexual misconduct
with a minor. Hughes later agreed to plead guilty to Class C felony sexual
misconduct with a minor.
[8] The sentencing hearing was held on January 16, 2015. At the hearing, the State
entered portions of N.J.’s diary as an exhibit. In the diary, N.J. described
numerous sex acts between herself and Hughes. Also, N.J.’s guardian testified
to the negative effect Hughes’ criminal conduct has had on his family and N.J.,
who was residing in a group home on the date of the sentencing hearing.
[9] Hughes argued that he should be given a minimum sentence and claimed that
fourteen-year-old N.J. was the aggressor in her relationship with sixty-year-old
Hughes. Tr. p. 45. Furthermore, Hughes argued he just enjoyed the attention
from N.J.; Hughes’ criminal sexual conduct has not had an impact on N.J.; and
that N.J. “still indicates that she wants to have a relationship with him.” Tr. pp.
51-52. Hughes also cited medical issues and the assistance he provides to his
mother as reasons to impose a minimum sentence.
[10] Before imposing his sentence, the trial court observed that Hughes is “extremely
manipulative” and found his “character to be dishonest.” Tr. pp. 59-60. The
court also noted Hughes was on probation for Class D felony operating while
intoxicated when he committed this offense, and he was arrested for invasion of
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 3 of 6 privacy for violating the no-contact order protecting N.J. The court also declined
to find Hughes’ guilty plea to be a significant mitigating circumstance.
Thereafter, the trial court ordered Hughes to serve a seven-and-one-half-year
sentence executed in the Department of Correction. Hughes now appeals.
Discussion and Decision
[11] Hughes argues that his seven-and-one-half-year sentence is inappropriate in
light of the nature of the offense and the character of the offender. Even if a trial
court acted within its statutory discretion in imposing a sentence, Article 7,
Sections 4 and 6 of the Indiana Constitution authorize independent appellate
review and revision of a sentence imposed by the trial court. Trainor v. State, 950
N.E.2d 352, 355–56 (Ind. Ct. App. 2011), trans. denied (citing Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007)). This authority is implemented through
Indiana Appellate Rule 7(B), which provides that the court on appeal “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.”
[12] Still, we must and should exercise deference to a trial court’s sentencing
decision, because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Id. Although we have the power to
review and revise sentences, the principal role of appellate review should be to
attempt to level the outliers, and identify some guiding principles for trial courts
and those charged with improvement of the sentencing statutes, but not to Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 4 of 6 achieve what we perceive to be a “correct” result in each case. Fernbach v. State,
954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008)).
[13] Under Appellate Rule 7(B), the appropriate question is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.
2007). It is the defendant’s burden on appeal to persuade us that the sentence
imposed by the trial court is inappropriate. Id. (citing Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006)).
[14] Hughes’ seven-and-one-half-year sentence is six months less than the maximum
eight-year sentence allowed for a Class C felony. See Ind. Code § 35-50-2-6(a)
(“A person who commits a Class C felony (for a crime committed before July 1,
2014) shall be imprisoned for a fixed term of between two (2) and eight (8)
years, with the advisory sentence being four (4) years”).
[15] First, we conclude that the nature of Hughes’ offense is particularly heinous.
Hughes was sixty years old when he committed sexual misconduct with
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 09 2015, 7:21 am regarded as precedent or cited before 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 Marce Gonzalez, Jr. Gregory F. Zoeller Dyer, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Harold Randy Hughes, December 9, 2015 Appellant-Defendant, Court of Appeals Case No. 45A03-1502-CR-56 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1309-FB-82
Mathias, Judge.
[1] Harold Randy Hughes (“Hughes”) pleaded guilty in Lake Superior Court to
Class C felony sexual misconduct with a minor. He was ordered to serve seven
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 1 of 6 and one-half years in the Department of Correction. Hughes appeals and argues
that his sentence is inappropriate in light of the nature of the offense and the
character of the offender.
[2] We affirm.
Facts and Procedural History
[3] Hughes, who was sixty years old, engaged in sexual misconduct with fourteen-
year-old N.J. Hughes met N.J. at a festival in Dyer, Indiana during the summer
of 2013. Shortly thereafter, they began communicating via text messages and
telephone calls. On August 10, 2013, Hughes arranged to pick N.J. up, and they
returned to Hughes’ residence where Hughes engaged in sexual deviate conduct
with N.J.
[4] N.J.’s guardian tracked her to Hughes’ residence through her cell phone.
Hughes refused to allow N.J.’s guardian into the residence. Hughes told her
guardian to get off of his property. N.J.’s guardian returned to his vehicle and
called the police.
[5] When the police arrived, Hughes told the officer that he and N.J. had done
nothing wrong and he was simply showing her how to use Facebook. Police
officers then entered Hughes’ residence, located N.J. in Hughes’ bedroom, and
returned her to her guardian.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 2 of 6 [6] A no-contact order was entered against Hughes naming N.J. as the protected
person. One week after N.J. was found at Hughes’ residence, Hughes violated
the protective order and met N.J. in a park.
[7] In September 2013, Hughes was charged with Class B felony sexual misconduct
with a minor. Hughes later agreed to plead guilty to Class C felony sexual
misconduct with a minor.
[8] The sentencing hearing was held on January 16, 2015. At the hearing, the State
entered portions of N.J.’s diary as an exhibit. In the diary, N.J. described
numerous sex acts between herself and Hughes. Also, N.J.’s guardian testified
to the negative effect Hughes’ criminal conduct has had on his family and N.J.,
who was residing in a group home on the date of the sentencing hearing.
[9] Hughes argued that he should be given a minimum sentence and claimed that
fourteen-year-old N.J. was the aggressor in her relationship with sixty-year-old
Hughes. Tr. p. 45. Furthermore, Hughes argued he just enjoyed the attention
from N.J.; Hughes’ criminal sexual conduct has not had an impact on N.J.; and
that N.J. “still indicates that she wants to have a relationship with him.” Tr. pp.
51-52. Hughes also cited medical issues and the assistance he provides to his
mother as reasons to impose a minimum sentence.
[10] Before imposing his sentence, the trial court observed that Hughes is “extremely
manipulative” and found his “character to be dishonest.” Tr. pp. 59-60. The
court also noted Hughes was on probation for Class D felony operating while
intoxicated when he committed this offense, and he was arrested for invasion of
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 3 of 6 privacy for violating the no-contact order protecting N.J. The court also declined
to find Hughes’ guilty plea to be a significant mitigating circumstance.
Thereafter, the trial court ordered Hughes to serve a seven-and-one-half-year
sentence executed in the Department of Correction. Hughes now appeals.
Discussion and Decision
[11] Hughes argues that his seven-and-one-half-year sentence is inappropriate in
light of the nature of the offense and the character of the offender. Even if a trial
court acted within its statutory discretion in imposing a sentence, Article 7,
Sections 4 and 6 of the Indiana Constitution authorize independent appellate
review and revision of a sentence imposed by the trial court. Trainor v. State, 950
N.E.2d 352, 355–56 (Ind. Ct. App. 2011), trans. denied (citing Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007)). This authority is implemented through
Indiana Appellate Rule 7(B), which provides that the court on appeal “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.”
[12] Still, we must and should exercise deference to a trial court’s sentencing
decision, because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Id. Although we have the power to
review and revise sentences, the principal role of appellate review should be to
attempt to level the outliers, and identify some guiding principles for trial courts
and those charged with improvement of the sentencing statutes, but not to Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 4 of 6 achieve what we perceive to be a “correct” result in each case. Fernbach v. State,
954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008)).
[13] Under Appellate Rule 7(B), the appropriate question is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.
2007). It is the defendant’s burden on appeal to persuade us that the sentence
imposed by the trial court is inappropriate. Id. (citing Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006)).
[14] Hughes’ seven-and-one-half-year sentence is six months less than the maximum
eight-year sentence allowed for a Class C felony. See Ind. Code § 35-50-2-6(a)
(“A person who commits a Class C felony (for a crime committed before July 1,
2014) shall be imprisoned for a fixed term of between two (2) and eight (8)
years, with the advisory sentence being four (4) years”).
[15] First, we conclude that the nature of Hughes’ offense is particularly heinous.
Hughes was sixty years old when he committed sexual misconduct with
fourteen-year-old N.J. After meeting N.J. at a festival, he communicated with
her via numerous text messages and phone calls. On August 10, 2013, he
arranged to pick her up and take her to his residence where he engaged in sex
acts with the child. When N.J.’s guardian located her at Hughes’s residence,
Hughes ordered her guardian off of his property. Police officers were required
to intervene to remove N.J. from Hughes’ home.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 5 of 6 [16] At sentencing, the trial court observed that Hughes was manipulative and
dishonest. He also demonstrated disregard for the law by violating a no-contact
order against the victim in this case, which resulted in an invasion of privacy
charge that was pending against him on the date of sentencing. Also, he was on
probation for Class D felony operating while intoxicated when he committed
this offense. Hughes also has a 2005 Class D felony conviction for operating
while intoxicated and two misdemeanor convictions for the same conduct.
[17] Although pleading guilty to the charged offense generally reflects well on the
defendant’s character, in this case the trial court assigned only minimal
mitigating weight to Hughes’ guilty plea. The record reflects that Hughes’
decision to plead guilty was likely a pragmatic one and not a true expression of
remorse. As the trial court noted, the evidence against Hughes supported the
Class B felony sexual misconduct charge, the original charge in this case, and
when he agreed to plead guilty to the C felony, Hughes’s maximum sentence
decreased from twenty years to eight years.
[18] For all of these reasons, we conclude that Hughes’ seven-and-one-half-year
sentence is more than appropriate in light of the nature of the offense and the
[19] Affirmed.
Baker, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015 Page 6 of 6