John Dale Prgomelja v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 18, 2018
• Docket: 18A-CR-1300
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 18 2018, 8:24 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kristin A. Mulholland Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Angela N. Sanchez Assistant Section Chief, Criminal Appeals Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John Dale Prgomelja, October 18, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1300 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Murray, Appellee-Plaintiff. Judge Trial Court Cause No. 45G02-1705-FA-1

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018 Page 1 of 5 Case Summary [1] John Dale Prgomelja (“Prgomelja”) pleaded guilty to Child Molesting, as a

Level 3 felony,1 and received an advisory sentence of nine years in the Indiana

Department of Correction with one year suspended to probation. Prgomelja

now appeals, arguing that his sentence is inappropriate. We affirm.

Facts and Procedural History [2] The State charged Prgomelja with four counts of Child Molesting, charged as

Class A, Level 1, Class C, and Level 4 felonies.2 Prgomelja entered a plea

agreement with the State whereby the State would seek dismissal of the four

counts and Prgomelja would instead plead guilty to Child Molesting, as a Level

3 felony. The agreement provided for a maximum sentence of ten years.

Attached to the agreement was a stipulated factual basis stating that, in July

2016, Prgomelja molested his granddaughter—who was under the age of

fourteen—at his residence by digitally penetrating a sex organ with his finger.

[3] A plea hearing was held in March 2018, at which (1) the State filed an amended

charging information that contained the Level 3 felony count; (2) Prgomelja

pleaded guilty to that count pursuant to the agreement; and (3) the trial court

1 Ind. Code § 35-42-4-3(a). 2 All of these felonies were charged under either Indiana Code Section 35-42-4-3(a)(1) or Indiana Code Section 35-42-4-3(b), although the Class A and Class C felony counts concerned allegations of conduct occurring prior to July 1, 2014, thereby falling under a different statutory framework.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018 Page 2 of 5 took the plea under advisement. A sentencing hearing was held, and the trial

court accepted the plea, dismissed the remaining counts, and imposed an

executed sentence of nine years with one year suspended to probation.

[4] Prgomelja now appeals.

Discussion and Decision [5] Pursuant to Article 7 of the Indiana Constitution, as implemented by Indiana

Appellate Rule 7(B), an appellate court “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). The appropriateness of a

sentence turns on “myriad . . . factors that come to light in a given case.”

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Moreover, the question is

not whether a different sentence would be more appropriate; the question is

whether the sentence imposed is inappropriate. Helsley v. State, 43 N.E.3d 225,

228 (Ind. 2015). As “sentencing is principally a discretionary function,”

Cardwell, 895 N.E.2d at 1222, we must give considerable deference to the

court’s decision—and that deference “should prevail unless overcome by

compelling evidence portraying in a positive light the nature of the offense (such

as accompanied by restraint, regard, and lack of brutality) and the defendant’s

character (such as substantial virtuous traits or persistent examples of good

character),” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately, the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018 Page 3 of 5 principal role of our review “is to attempt to leaven the outliers.” McCain v.

State, 88 N.E.3d 1066, 1067 (Ind. 2018) (per curiam).

[6] Regarding the offense, Prgomelja received the advisory sentence of nine years.

See I.C. § 35-50-2-5 (providing that the sentencing range for a Level 3 felony is

between three years and sixteen years, with an advisory sentence of nine years).

Because the advisory sentence is the starting point that the legislature “has

selected as an appropriate sentence for the crime committed,” Childress v. State,

848 N.E.2d 1073, 1081 (Ind. 2006), the appellant “bears a particularly heavy

burden in persuading us that his sentence is inappropriate when the trial court

imposes the advisory sentence,” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.

Ct. App. 2011), trans. denied.

[7] In seeking appellate revision of his sentence, Prgomelja does not argue—nor do

we discern—anything about the nature of this offense that warrants a different

sentence. Prgomelja instead attempts to portray his character in a positive light.

Prgomelja—seventy-six years old at the time of sentencing—focuses much of

his brief on his “advanced age and deteriorating health,” Br. of Appellant at 7,

but these are not virtuous character attributes indicative of an inappropriate

sentence under Appellate Rule 7(B). Prgomelja otherwise directs us to his lack

of prior contacts with the criminal justice system, his military service, and the

letters of support from his son and pastor. Prgomelja also notes that he was

willing to pay $300 per month toward his granddaughter’s ongoing therapy

bills—yet, she requires therapy because Prgomelja chose to betray a position of

trust. Furthermore, to the extent Prgomelja asserts that his decision to plead

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018 Page 4 of 5 guilty reflects an acceptance of responsibility and conferred a benefit to both the

victim and the State, we note that Prgomelja received a substantial benefit in

return. Moreover, although Prgomelja directs our attention to his apology at

the sentencing hearing, the trial court—standing in a better position to evaluate

credibility—stated that it did not believe his apology “for a moment.” Tr. at 43.

[8] Prgomelja has not persuaded us that the advisory sentence is inappropriate.3

[9] Affirmed.

Mathias, J., and Bradford, J., concur.

3 Prgomelja asserts that, in its briefing, the State improperly drew upon information set forth in the probable cause affidavit. We do not address this contention as we have not considered the probable cause affidavit.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018 Page 5 of 5