MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 15 2017, 9:35 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any 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 Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Clingerman, February 15, 2017 Appellant-Defendant, Court of Appeals Case No. 79A05-1608-CR-1955 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1604-F4-12
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 1 of 9 Case Summary [1] Joseph Clingerman (“Clingerman”) pled guilty to one count of Sexual
Misconduct with a Minor, as a Level 4 felony.1 The trial court subsequently
sentenced him to the advisory term of six years of imprisonment, with four
years suspended to probation. Clingerman now appeals, challenging his
sentence.
[2] We affirm.
Issues [3] Clingerman presents two issues for our review, which we restate as:
I. Whether the trial court abused its discretion in finding aggravating and mitigating factors at sentencing; and
II. Whether the sentence is inappropriate under Appellate Rule 7(B).
Facts and Procedural History [4] Clingerman, then twenty-two years of age, initiated an online relationship with
a fourteen-year-old girl (“Victim”). After online chats, the two agreed to meet
and engage in sexual intercourse. Between February 15, 2016 and March 31,
1 Ind. Code 35-42-4-9(a).
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 2 of 9 2016, Clingerman and Victim had sexual intercourse twice—once in Armstrong
Park in Lafayette, and once in Victim’s friend’s garage, also in Lafayette. 2
[5] A warrant for Clingerman’s arrest was issued on April 13, 2016, and
Clingerman was arrested soon thereafter. Also on April 13, 2016, the State
charged Clingerman with two counts of Sexual Misconduct with a Minor, as
Level 4 felonies.
[6] On June 27, 2016, Clingerman and the State entered into a plea agreement
whereby Clingerman agreed to plead guilty to one count of Sexual Misconduct
with a Minor, as a Level 4 felony, in exchange for which the State would move
to dismiss the other count. The agreement was open as to Clingerman’s
sentence. The trial court accepted the plea agreement and ordered that a
presentence investigation be conducted.
[7] A sentencing hearing was conducted on August 1, 2016. The court entered
judgment against Clingerman and, at the hearing’s conclusion, sentenced
Clingerman to six years of imprisonment, with two years executed in the
Department of Correction and four years suspended to probation.
[8] This appeal ensued.
2 Although he pled guilty only to one count, Clingerman admitted during the presentence investigation to having twice engaged in sexual intercourse with Victim.
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 3 of 9 Discussion and Decision Aggravators and Mitigators [9] Clingerman’s first contention on appeal is that the trial court abused its
discretion in finding aggravating and mitigating factors at sentencing.
[10] Our supreme court has held:
[T]he imposition of sentence and the review of sentences on appeal should proceed as follows:
1. The trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence.
2. The reasons given, and the omission of reasons arguably supported by the record, are reviewable on appeal for abuse of discretion.
3. The relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.
4. Appellate review of the merits of a sentence may be sought on the grounds outlined in Appellate Rule 7(B).
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007).
[11] We review sentencing decisions for an abuse of discretion. Id. at 490. While a
trial court may abuse its discretion by issuing a sentencing statement that
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 4 of 9 “omits reasons that are clearly supported by the record and advanced for
consideration,” a trial court can no longer “be said to have abused its discretion
in failing to ‘properly weigh’ such factors.” Id. (quoting Jackson v. State, 729
N.E.2d 147, 155 (Ind. 2000); Morgan v. State, 675 N.E.2d 1067, 1073-74 (Ind.
1996)). Where the trial court has abused its discretion, “we have the option to
remand to the trial court for a clarification or new sentencing determination,”
or “we may exercise our authority to review and revise the sentence.”
Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).
[12] Indiana Code section 35-38-1-7.1 sets forth non-exhaustive lists of
circumstances that may be considered in aggravation and mitigation of a
criminal sentence, and trial courts may consider additional factors in
determining a sentence. Phelps v. State, 914 N.E.2d 283, 292 (Ind. Ct. App.
2009). “It is well-settled that a single aggravating factor is sufficient to warrant
an enhanced sentence.” Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App.
2013). “When a sentencing court improperly applies an aggravating
circumstance, but other valid aggravating circumstances do exist, a sentence
enhancement may still be upheld.” Id.
[13] Here, Clingerman challenges numerous of the aggravating factors found at
sentencing, and contends that the trial court improperly disregarded mitigating
factors. Clingerman observes that one of the two offenses for which he was
charged was dismissed, and thus the court could not consider that dismissed
charge in aggravation. Clingerman cites Farmer v. State, 772 N.E.2d 1025 (Ind.
Ct. App. 2002), for the proposition that a trial court abuses its discretion when
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 5 of 9 it takes into account facts supporting charges that were dismissed as a result of a
plea agreement, because harsher sentencing on the basis of these facts would
preclude receiving “the full benefit of his guilty plea.” Id. at 1027. Farmer is no
longer good law. Specifically addressing the line of cases that includes Farmer,
the Indiana Supreme Court in Bethea v. State held that where a plea agreement
called for the dismissal of certain counts and provided for an open plea, “it is
not necessary for a trial court to turn a blind eye to the facts of the incident that
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 15 2017, 9:35 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any 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 Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Clingerman, February 15, 2017 Appellant-Defendant, Court of Appeals Case No. 79A05-1608-CR-1955 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1604-F4-12
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 1 of 9 Case Summary [1] Joseph Clingerman (“Clingerman”) pled guilty to one count of Sexual
Misconduct with a Minor, as a Level 4 felony.1 The trial court subsequently
sentenced him to the advisory term of six years of imprisonment, with four
years suspended to probation. Clingerman now appeals, challenging his
sentence.
[2] We affirm.
Issues [3] Clingerman presents two issues for our review, which we restate as:
I. Whether the trial court abused its discretion in finding aggravating and mitigating factors at sentencing; and
II. Whether the sentence is inappropriate under Appellate Rule 7(B).
Facts and Procedural History [4] Clingerman, then twenty-two years of age, initiated an online relationship with
a fourteen-year-old girl (“Victim”). After online chats, the two agreed to meet
and engage in sexual intercourse. Between February 15, 2016 and March 31,
1 Ind. Code 35-42-4-9(a).
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 2 of 9 2016, Clingerman and Victim had sexual intercourse twice—once in Armstrong
Park in Lafayette, and once in Victim’s friend’s garage, also in Lafayette. 2
[5] A warrant for Clingerman’s arrest was issued on April 13, 2016, and
Clingerman was arrested soon thereafter. Also on April 13, 2016, the State
charged Clingerman with two counts of Sexual Misconduct with a Minor, as
Level 4 felonies.
[6] On June 27, 2016, Clingerman and the State entered into a plea agreement
whereby Clingerman agreed to plead guilty to one count of Sexual Misconduct
with a Minor, as a Level 4 felony, in exchange for which the State would move
to dismiss the other count. The agreement was open as to Clingerman’s
sentence. The trial court accepted the plea agreement and ordered that a
presentence investigation be conducted.
[7] A sentencing hearing was conducted on August 1, 2016. The court entered
judgment against Clingerman and, at the hearing’s conclusion, sentenced
Clingerman to six years of imprisonment, with two years executed in the
Department of Correction and four years suspended to probation.
[8] This appeal ensued.
2 Although he pled guilty only to one count, Clingerman admitted during the presentence investigation to having twice engaged in sexual intercourse with Victim.
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 3 of 9 Discussion and Decision Aggravators and Mitigators [9] Clingerman’s first contention on appeal is that the trial court abused its
discretion in finding aggravating and mitigating factors at sentencing.
[10] Our supreme court has held:
[T]he imposition of sentence and the review of sentences on appeal should proceed as follows:
1. The trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence.
2. The reasons given, and the omission of reasons arguably supported by the record, are reviewable on appeal for abuse of discretion.
3. The relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse.
4. Appellate review of the merits of a sentence may be sought on the grounds outlined in Appellate Rule 7(B).
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007).
[11] We review sentencing decisions for an abuse of discretion. Id. at 490. While a
trial court may abuse its discretion by issuing a sentencing statement that
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 4 of 9 “omits reasons that are clearly supported by the record and advanced for
consideration,” a trial court can no longer “be said to have abused its discretion
in failing to ‘properly weigh’ such factors.” Id. (quoting Jackson v. State, 729
N.E.2d 147, 155 (Ind. 2000); Morgan v. State, 675 N.E.2d 1067, 1073-74 (Ind.
1996)). Where the trial court has abused its discretion, “we have the option to
remand to the trial court for a clarification or new sentencing determination,”
or “we may exercise our authority to review and revise the sentence.”
Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).
[12] Indiana Code section 35-38-1-7.1 sets forth non-exhaustive lists of
circumstances that may be considered in aggravation and mitigation of a
criminal sentence, and trial courts may consider additional factors in
determining a sentence. Phelps v. State, 914 N.E.2d 283, 292 (Ind. Ct. App.
2009). “It is well-settled that a single aggravating factor is sufficient to warrant
an enhanced sentence.” Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App.
2013). “When a sentencing court improperly applies an aggravating
circumstance, but other valid aggravating circumstances do exist, a sentence
enhancement may still be upheld.” Id.
[13] Here, Clingerman challenges numerous of the aggravating factors found at
sentencing, and contends that the trial court improperly disregarded mitigating
factors. Clingerman observes that one of the two offenses for which he was
charged was dismissed, and thus the court could not consider that dismissed
charge in aggravation. Clingerman cites Farmer v. State, 772 N.E.2d 1025 (Ind.
Ct. App. 2002), for the proposition that a trial court abuses its discretion when
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 5 of 9 it takes into account facts supporting charges that were dismissed as a result of a
plea agreement, because harsher sentencing on the basis of these facts would
preclude receiving “the full benefit of his guilty plea.” Id. at 1027. Farmer is no
longer good law. Specifically addressing the line of cases that includes Farmer,
the Indiana Supreme Court in Bethea v. State held that where a plea agreement
called for the dismissal of certain counts and provided for an open plea, “it is
not necessary for a trial court to turn a blind eye to the facts of the incident that
brought the defendant before them.” 983 N.E.2d 1134, 1145 (Ind. 2013).
[14] During the presentence investigation, Clingerman admitted to having twice
engaged in sexual intercourse with Victim. As announced by the Bethea Court,
where a defendant enters into a plea agreement with an open term as to
sentencing he receives the benefit of his bargain upon the bargained-for
dismissal of the charges. Id. Clingerman did not bargain for a sentencing
procedure that required the trial court to disregard circumstances of his second
offense relevant to sentencing, and trial courts are not required to do so. See id.
We accordingly find no error in the trial court’s finding as an aggravating
circumstance Clingerman’s admission to having committed the same act upon
the same victim on multiple occasions.
[15] Even if Clingerman is correct that one or more aggravating factors were
erroneous, we may proceed to exercise our independent review under Appellate
Rule 7(B). See Windhorst, 868 N.E.2d at 507. In doing so, we note that
Clingerman did not receive an enhanced sentence of any type. He received a
six-year term—the statutory advisory sentence for a Level 4 felony. Even one
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 6 of 9 valid aggravating factor can support an enhanced sentence, and a valid
aggravating factor did exist, but Clingerman did not receive any form of
enhanced sentence.3 In other words, Clingerman’s argument that his advisory
sentence was somehow inappropriately aggravated amounts to a request that
we reassess “the relative weight or value assignable” to aggravating and
mitigating circumstances. Anglemyer, 868 N.E.2d at 491. We cannot entertain
that argument. See id.
Appellate Rule 7(B) [16] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “The 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.” Under this rule, and as
interpreted by case law, appellate courts may revise a sentence after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
3 Because Clingerman’s sentence was at the advisory level, we cannot conclude that there is merit to his contention that his imprisonment for Sexual Misconduct with a Minor is an unconstitutional imprisonment for failure to pay a debt.
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 7 of 9 798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[17] Here, Clingerman was convicted of Sexual Misconduct with a Minor, as a
Level 4 felony. The sentencing range for a Level 4 felony runs from two to
twelve years, with an advisory term of imprisonment of six years. I.C. § 35-50-
2-5.5. The trial court sentenced Clingerman to an advisory term, and
suspended four of the six years to probation.
[18] Clingerman pled guilty to one count of Sexual Misconduct with a Minor. He
encountered Victim, a fourteen-year-old girl, through an online chat service.
After Victim suggested they meet for sex, Clingerman initially resisted, but
eventually agreed. Clingerman met Victim at a public park, after which they
had sexual intercourse. Clingerman remained in contact with Victim, and then
met Victim again at a friend of Victim’s house and had sexual intercourse
again. Prior to both occasions, Clingerman had misgivings because he knew
Victim’s age; after the first incident, Clingerman agreed to meet for sex a second
time because he was not caught the first time.
[19] As to Clingerman’s character, we observe that he pled guilty, has no prior
criminal history and no history of substance abuse, and expressed some level of
regret at having committed the instant offense. Clingerman’s family
background is troubled, and includes abuse and having been a CHINS during
his teenage years. Clingerman is a high school graduate, remained employed
from 2014 to 2016 at a series of jobs, and reported having a stable income while
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 8 of 9 he was employed. Clingerman attended college, but did not complete a degree.
Clingerman had a daughter out of wedlock, had incurred a child-support
payment of around $370 per month, and at the time of his conviction was
$3,335.94 in arrears on the support obligation. (Ex. 1.) He has been diagnosed
with Attention Deficit Disorder and had been prescribed medication for the
condition in the past, but had not received treatment for several years.
[20] Having reviewed the record, we conclude that in light of the nature of
Clingerman’s offense and his character, his sentence is not inappropriate.
Conclusion [21] The trial court’s finding of aggravators and mitigators was not an abuse of
discretion, and Clingerman’s sentence is not inappropriate.
[22] Affirmed.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017 Page 9 of 9