MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2019, 8:53 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Thomas Lowe Curtis T. Hill, Jr. Lowe Law Office Attorney General of Indiana Jeffersonville, Indiana Angela Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Randy M. Blecher, February 28, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1360 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen Appellee-Plaintiff Trial Court Cause No. 59C01-1709-F4-1072
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 1 of 7 [1] Randy M. Blecher appeals following his conviction of Level 4 felony sexual
misconduct with a minor. 1 He argues his twelve-year sentence is inappropriate.
We affirm.
Facts and Procedural History [2] In March 2017, thirty-seven-year-old Blecher began talking to fifteen-year-old
J.K. through KIK, a smartphone application. Blecher told J.K. he was twenty-
eight years old. After about two weeks of messaging, Blecher and J.K. were
communicating on a regular basis. Blecher and J.K shared an interest in music.
Blecher used this to get closer to J.K., learn more about her, and gain her trust.
In May 2017, Blecher and J.K. began discussing things of a sexual nature.
Blecher and J.K. also exchanged nude pictures. Blecher “took advantage” of
J.K.’s condition and situation at home. (Tr. Vol. III at 65.) Blecher
acknowledged J.K. had mental health issues. (Defendant’s Ex. at 3.)
[3] On July 8, 2017, Blecher took J.K. and her friend to Bloomington, Indiana.
While in Bloomington, Blecher took J.K. to a hotel, where J.K. performed oral
sex on Blecher. On August 20, 2017, J.K. told Blecher that her mom was gone
for the day. Blecher drove from Cincinnati, Ohio, to Paoli, Indiana. Blecher
and J.K. had sex that morning. J.K.’s mother came home midday and found
Blecher hiding in J.K.’s closet. After Blecher left, J.K. attempted to commit
1 Ind. Code § 35-42-4-9(a)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 2 of 7 suicide. Police were dispatched to the home, and J.K. was transported to the
hospital. On September 9, 2017, Blecher and J.K. again exchanged messages
through KIK. J.K. again tried to commit suicide again as the criminal
proceedings unfolded.
[4] J.K.’s mother identified Blecher from a photo lineup, and police arrested him
on October 5, 2017. The State charged Blecher with Level 4 felony sexual
misconduct with a minor. Blecher pled guilty, and the trial court sentenced him
to twelve years with three years suspended to probation.
Discussion and Decision [5] Blecher argues his sentence is inappropriate in light of his character and the
nature of his offense.
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). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a sentence as appropriate at the end of the day 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). In addition to the “due consideration” we are required to give to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 3 of 7 the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[6] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The
sentence for a Level 4 felony is a fixed term between two and twelve years, with
the advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014). The trial
court sentenced Blecher to twelve years; thus, he received the maximum
sentence.
[7] Regarding the nature of Blecher’s offense, the trial court notes Blecher knew
that J.K. was underage and vulnerable. Blecher knew that J.K. had mental
health issues, and he groomed her by learning about her in order to make her
more susceptible to his advances. See Purvis v. State, 829 N.E.2d 572, 588 (Ind.
Ct. App. 2005) (grooming vulnerable victim justified aggravated sentence),
trans. denied, cert. denied 547 U.S. 1026 (2006). As a result of Blecher’s actions,
J.K. suffered emotionally, and she “beat herself up” over what had happened.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 4 of 7 (Tr. Vol. II at 49.) J.K. twice attempted suicide and failed multiple classes as a
result of her interactions with Blecher. (Tr. Vol. II at 48, 51.)
[8] As to Blecher’s character, the trial court acknowledged Blecher has no criminal
history. The trial court also considered Blecher’s willingness to enter into a plea
agreement. However, Blecher spent multiple months lying to J.K. and
manipulating her. Blecher and J.K. discussed their shared interest in music,
and Blecher learned about J.K.’s personal life, so that he could take advantage
of her. Although he was not charged for the actions, Blecher solicited nude
pictures from J.K., sent nude pictures to her, and, on his request, received oral
sex from her. The trial court was allowed to consider those acts as aggravating
factors. See Singer v. State, 674 N.E.2d 11, 15 (Ind. Ct. App. 1996) (uncharged
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2019, 8:53 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Thomas Lowe Curtis T. Hill, Jr. Lowe Law Office Attorney General of Indiana Jeffersonville, Indiana Angela Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Randy M. Blecher, February 28, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1360 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen Appellee-Plaintiff Trial Court Cause No. 59C01-1709-F4-1072
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 1 of 7 [1] Randy M. Blecher appeals following his conviction of Level 4 felony sexual
misconduct with a minor. 1 He argues his twelve-year sentence is inappropriate.
We affirm.
Facts and Procedural History [2] In March 2017, thirty-seven-year-old Blecher began talking to fifteen-year-old
J.K. through KIK, a smartphone application. Blecher told J.K. he was twenty-
eight years old. After about two weeks of messaging, Blecher and J.K. were
communicating on a regular basis. Blecher and J.K shared an interest in music.
Blecher used this to get closer to J.K., learn more about her, and gain her trust.
In May 2017, Blecher and J.K. began discussing things of a sexual nature.
Blecher and J.K. also exchanged nude pictures. Blecher “took advantage” of
J.K.’s condition and situation at home. (Tr. Vol. III at 65.) Blecher
acknowledged J.K. had mental health issues. (Defendant’s Ex. at 3.)
[3] On July 8, 2017, Blecher took J.K. and her friend to Bloomington, Indiana.
While in Bloomington, Blecher took J.K. to a hotel, where J.K. performed oral
sex on Blecher. On August 20, 2017, J.K. told Blecher that her mom was gone
for the day. Blecher drove from Cincinnati, Ohio, to Paoli, Indiana. Blecher
and J.K. had sex that morning. J.K.’s mother came home midday and found
Blecher hiding in J.K.’s closet. After Blecher left, J.K. attempted to commit
1 Ind. Code § 35-42-4-9(a)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 2 of 7 suicide. Police were dispatched to the home, and J.K. was transported to the
hospital. On September 9, 2017, Blecher and J.K. again exchanged messages
through KIK. J.K. again tried to commit suicide again as the criminal
proceedings unfolded.
[4] J.K.’s mother identified Blecher from a photo lineup, and police arrested him
on October 5, 2017. The State charged Blecher with Level 4 felony sexual
misconduct with a minor. Blecher pled guilty, and the trial court sentenced him
to twelve years with three years suspended to probation.
Discussion and Decision [5] Blecher argues his sentence is inappropriate in light of his character and the
nature of his offense.
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). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a sentence as appropriate at the end of the day 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). In addition to the “due consideration” we are required to give to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 3 of 7 the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[6] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The
sentence for a Level 4 felony is a fixed term between two and twelve years, with
the advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014). The trial
court sentenced Blecher to twelve years; thus, he received the maximum
sentence.
[7] Regarding the nature of Blecher’s offense, the trial court notes Blecher knew
that J.K. was underage and vulnerable. Blecher knew that J.K. had mental
health issues, and he groomed her by learning about her in order to make her
more susceptible to his advances. See Purvis v. State, 829 N.E.2d 572, 588 (Ind.
Ct. App. 2005) (grooming vulnerable victim justified aggravated sentence),
trans. denied, cert. denied 547 U.S. 1026 (2006). As a result of Blecher’s actions,
J.K. suffered emotionally, and she “beat herself up” over what had happened.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 4 of 7 (Tr. Vol. II at 49.) J.K. twice attempted suicide and failed multiple classes as a
result of her interactions with Blecher. (Tr. Vol. II at 48, 51.)
[8] As to Blecher’s character, the trial court acknowledged Blecher has no criminal
history. The trial court also considered Blecher’s willingness to enter into a plea
agreement. However, Blecher spent multiple months lying to J.K. and
manipulating her. Blecher and J.K. discussed their shared interest in music,
and Blecher learned about J.K.’s personal life, so that he could take advantage
of her. Although he was not charged for the actions, Blecher solicited nude
pictures from J.K., sent nude pictures to her, and, on his request, received oral
sex from her. The trial court was allowed to consider those acts as aggravating
factors. See Singer v. State, 674 N.E.2d 11, 15 (Ind. Ct. App. 1996) (uncharged
crimes against children could be considered for an enhanced sentence). In light
of the nature of Blecher’s offense and Blecher’s character, we cannot say his
twelve-year sentence is inappropriate.
Conclusion [9] Given the nature of the offense, i.e., the grooming of J.K. and the extent to
which she suffered from Blecher’s actions, and the character of the offender, i.e.,
he “took advantage” of a child with emotional issues for his own sexual
gratification, (Tr. Vol. III at 65), we cannot say Blecher’s twelve-year sentence
is inappropriate. Accordingly, we affirm.
[10] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 5 of 7 Tavitas, J., concurs.
Baker, J., dissent with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 6 of 7 IN THE COURT OF APPEALS OF INDIANA
Randy M. Blecher, Court of Appeals Case No. 18A-CR-1360 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff
Baker, Judge, dissenting.
[11] I respectfully dissent. While I acknowledge the severity of Blecher’s crime and
resulting trauma to J.K., it is undisputed that his risk to reoffend is low, that he
has zero criminal history, that he pleaded guilty without the benefit of a plea
agreement, and that he was remorseful at sentencing. Moreover, the State
recommended an eight-year sentence, with two years suspended, for an
executed advisory term of six years. I believe that under these circumstances,
the twelve-year sentence imposed by the trial court is inappropriate. I would
reverse with instructions to impose the sentence recommended by the State.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1360 | February 28, 2019 Page 7 of 7