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 Oct 17 2014, 9:46 am 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
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JEFFREY RAY SHANKS, SR., ) ) Appellant-Defendant, ) ) vs. ) No. 45A04-1406-CR-262 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge Cause No. 45G03-1206-FA-13
October 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issue
Jeffrey Ray Shanks, Sr. pled guilty to child molesting, a Class C felony, and was
sentenced to seven years in the Indiana Department of Correction (“DOC”). He raises one
issue for our review: whether his seven-year sentence is inappropriate in light of the nature
of the offense and character of the offender. Concluding that Shanks’ sentence is not
inappropriate, we affirm.
Facts and Procedural History
Shanks is D.C.’s uncle. Between March 1, 2000 and January 13, 2003, D.C. and
Shanks, among other family members, lived in a home located in Griffith, Indiana. During
this period of time, D.C. was between six and nine years old. Shanks was between forty-
one and forty-four years old. On several occasions, Shanks knowingly and intentionally
fondled and touched D.C. around her breast and genital areas to arouse or satisfy his sexual
desires. As a result, D.C. suffered from depression and post-traumatic stress disorder,
which required therapy. Once a straight A student, D.C. eventually began failing and
dropped out of school.
The State charged Shanks with child molesting as a Class A felony and child
molesting as a Class C felony. In exchange for the dismissal of the Class A felony, Shanks
pled guilty to the Class C felony at a hearing on March 26, 2014. The plea agreement
provided that “[t]he parties agree that they are free to fully argue their respective positions
as to the sentence to be imposed by the court,” Appellant’s Appendix at 34-35, and at the
conclusion of the plea hearing, the trial court took the matter under advisement and ordered
a pre-sentence investigation report (“PSI”). On May 7, 2014 the trial court accepted the
2 plea agreement and sentenced Shanks to seven years in the DOC. He now appeals his
sentence.
Discussion and Decision
I. Standard of Review
Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences. See Childress v. State, 848 N.E.2d 1073, 1079-
1080 (Ind. 2006). We “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.” Ind. Appellate Rule
7(B). This court’s inquiry under Appellate Rule 7(B) is a discretionary exercise of our
judgment not unlike the trial court’s discretionary sentencing determination. Knapp v.
State, 9 N.E.3d 1274, 1291-92 (Ind. 2014). We nevertheless exercise deference to the trial
court’s decision, both because the rule requires “due consideration” and because we
recognize the trial court’s unique perspective. Garner v. State, 7 N.E.3d 1012, 1014-15
(Ind. Ct. App. 2014). In determining whether a sentence is inappropriate, we may look to
any factors appearing in the record. Stetler v. State, 972 N.E.2d 404, 408 (Ind. Ct. App.
2012), trans. denied. Our decision usually “turns on our sense of 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 burden is on the defendant to persuade the appellate court that his sentence is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
3 II. Shanks’ Sentence
Shanks pled guilty to child molesting under Indiana Code section 35-42-4-3(b),
which states:
A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.
Ind. Code § 35-42-4-3(b) (2003). A trial court’s authority for sentencing a person who
commits a Class C felony is found in Indiana Code section 35-50-2-6. In part, it states:
A person who commits a Class C felony shall be imprisoned for a fixed term of four (4) years, with not more than four (4) years added for aggravating circumstances or not more than two (2) years subtracted for mitigating circumstances. In addition, he may be fined not more than ten thousand dollars ($10,000).
Ind. Code § 35-50-2-6(a) (2003).
Shanks argues that his seven year sentence is inappropriate in light of the nature of
his offense and his character as laid out in Appellate Rule 7(B), because he was fifty-five
years old with no prior criminal history at the time of sentencing; he is uneducated and
grew up with a poor home environment; and he pled guilty to the crime.1
Our review of the nature of the offense reveals that Shanks molested his own niece
for three years. During this time, D.C. was between six and nine years old. D.C. should
have been able to trust Shanks, but instead, Shanks laid D.C. across his lap, slapping her
1 The State included information from the probable cause affidavit in its Statement of Facts and relied on it in making its argument. Shanks contends we should not do the same because a probable cause affidavit is inadmissible hearsay. While this may be true at a trial, the Evidence Rules do not apply at sentencing. Ind. Evidence Rule 101(d)(2). The affidavit was part of the PSI that was admitted at the sentencing hearing and that (with a minor change) Shanks agreed was complete and accurate. See Chupp v. State, 830 N.E.2d 119, 125 n. 12 (Ind. Ct. App. 2005).
4 bare butt, following it with a kiss; Shanks tickled D.C. daily; Shanks touched D.C.’s vagina
with his hand and penetrated it with his fingers on at least five different occasions; Shanks
got in bed with D.C.; and Shanks spooned with D.C. This three year period of torment
caused D.C. to suffer from depression and post-traumatic stress disorder. She required
therapy. And once a straight A student, D.C.
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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 Oct 17 2014, 9:46 am 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
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JEFFREY RAY SHANKS, SR., ) ) Appellant-Defendant, ) ) vs. ) No. 45A04-1406-CR-262 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge Cause No. 45G03-1206-FA-13
October 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issue
Jeffrey Ray Shanks, Sr. pled guilty to child molesting, a Class C felony, and was
sentenced to seven years in the Indiana Department of Correction (“DOC”). He raises one
issue for our review: whether his seven-year sentence is inappropriate in light of the nature
of the offense and character of the offender. Concluding that Shanks’ sentence is not
inappropriate, we affirm.
Facts and Procedural History
Shanks is D.C.’s uncle. Between March 1, 2000 and January 13, 2003, D.C. and
Shanks, among other family members, lived in a home located in Griffith, Indiana. During
this period of time, D.C. was between six and nine years old. Shanks was between forty-
one and forty-four years old. On several occasions, Shanks knowingly and intentionally
fondled and touched D.C. around her breast and genital areas to arouse or satisfy his sexual
desires. As a result, D.C. suffered from depression and post-traumatic stress disorder,
which required therapy. Once a straight A student, D.C. eventually began failing and
dropped out of school.
The State charged Shanks with child molesting as a Class A felony and child
molesting as a Class C felony. In exchange for the dismissal of the Class A felony, Shanks
pled guilty to the Class C felony at a hearing on March 26, 2014. The plea agreement
provided that “[t]he parties agree that they are free to fully argue their respective positions
as to the sentence to be imposed by the court,” Appellant’s Appendix at 34-35, and at the
conclusion of the plea hearing, the trial court took the matter under advisement and ordered
a pre-sentence investigation report (“PSI”). On May 7, 2014 the trial court accepted the
2 plea agreement and sentenced Shanks to seven years in the DOC. He now appeals his
sentence.
Discussion and Decision
I. Standard of Review
Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences. See Childress v. State, 848 N.E.2d 1073, 1079-
1080 (Ind. 2006). We “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.” Ind. Appellate Rule
7(B). This court’s inquiry under Appellate Rule 7(B) is a discretionary exercise of our
judgment not unlike the trial court’s discretionary sentencing determination. Knapp v.
State, 9 N.E.3d 1274, 1291-92 (Ind. 2014). We nevertheless exercise deference to the trial
court’s decision, both because the rule requires “due consideration” and because we
recognize the trial court’s unique perspective. Garner v. State, 7 N.E.3d 1012, 1014-15
(Ind. Ct. App. 2014). In determining whether a sentence is inappropriate, we may look to
any factors appearing in the record. Stetler v. State, 972 N.E.2d 404, 408 (Ind. Ct. App.
2012), trans. denied. Our decision usually “turns on our sense of 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 burden is on the defendant to persuade the appellate court that his sentence is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
3 II. Shanks’ Sentence
Shanks pled guilty to child molesting under Indiana Code section 35-42-4-3(b),
which states:
A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.
Ind. Code § 35-42-4-3(b) (2003). A trial court’s authority for sentencing a person who
commits a Class C felony is found in Indiana Code section 35-50-2-6. In part, it states:
A person who commits a Class C felony shall be imprisoned for a fixed term of four (4) years, with not more than four (4) years added for aggravating circumstances or not more than two (2) years subtracted for mitigating circumstances. In addition, he may be fined not more than ten thousand dollars ($10,000).
Ind. Code § 35-50-2-6(a) (2003).
Shanks argues that his seven year sentence is inappropriate in light of the nature of
his offense and his character as laid out in Appellate Rule 7(B), because he was fifty-five
years old with no prior criminal history at the time of sentencing; he is uneducated and
grew up with a poor home environment; and he pled guilty to the crime.1
Our review of the nature of the offense reveals that Shanks molested his own niece
for three years. During this time, D.C. was between six and nine years old. D.C. should
have been able to trust Shanks, but instead, Shanks laid D.C. across his lap, slapping her
1 The State included information from the probable cause affidavit in its Statement of Facts and relied on it in making its argument. Shanks contends we should not do the same because a probable cause affidavit is inadmissible hearsay. While this may be true at a trial, the Evidence Rules do not apply at sentencing. Ind. Evidence Rule 101(d)(2). The affidavit was part of the PSI that was admitted at the sentencing hearing and that (with a minor change) Shanks agreed was complete and accurate. See Chupp v. State, 830 N.E.2d 119, 125 n. 12 (Ind. Ct. App. 2005).
4 bare butt, following it with a kiss; Shanks tickled D.C. daily; Shanks touched D.C.’s vagina
with his hand and penetrated it with his fingers on at least five different occasions; Shanks
got in bed with D.C.; and Shanks spooned with D.C. This three year period of torment
caused D.C. to suffer from depression and post-traumatic stress disorder. She required
therapy. And once a straight A student, D.C. eventually began failing and had to drop out
of school. These facts warrant serious penal consequences. See Sharp v. State, 970 N.E.2d
647, 651 (Ind. 2012) (holding that a defendant who molested step-son on multiple
occasions over a period of years was in a position of care, and therefore, serious penal
consequences were warranted). Thus, the nature of Shanks’ offense, alone, justifies his
seven-year sentence.
Our review of Shanks’ character reveals that he was fifty-five years old with no
prior criminal history at the time of sentencing; he is uneducated and grew up in a poor
home environment; and he pled guilty to the crime. Although a lack of criminal history is
generally a mitigating factor, Cloum v. State, 779 N.E.2d 84, 91 (Ind. Ct. App. 2002), these
facts show that Shanks has not been living a law abiding life. We also note that, although
Shanks had a difficult home environment, sorry circumstances do not justify wrong actions,
and at the age of fifty-five, he should have known the difference between right and wrong.
Shanks did plead guilty to the Class C felony saving time and expense to the State and
saving D.C. from having to testify. However, that plea provided him with a substantial
benefit by avoiding a possible conviction of the Class A felony. See Ind. Code § 35-50-2-
4 (2003) (Class A felony carries a minimum sentence of twenty years); see Brown v. State,
907 N.E.2d 591, 594 (Ind. Ct. App. 2009) (if a guilty plea is merely a pragmatic decision,
5 it will have little mitigating effect). Accordingly, Shanks has not persuaded us that his
sentence is inappropriate. See Conley, 972 N.E.2d at 876.
Conclusion
Shanks’ seven-year sentence is not inappropriate considering the nature of his
offense and his character. The sentence is affirmed.
Affirmed. BAKER, J., and KIRSCH, J., concur.