Robert Teal v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 16, 2018
• Docket: 49A04-1709-CR-2029
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 16 2018, 10:54 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Michael Gene Worden Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Teal, March 16, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1709-CR-2029 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G01-1508-F4-30444

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2029 | March 16, 2018 Page 1 of 5 Case Summary [1] Robert Teal (“Teal”) challenges the sentence imposed upon his conviction of

Child Molesting, as a Class C felony.1 He presents the sole issue of whether the

sentence is inappropriate. We affirm.

Facts and Procedural History [2] In 2013, Teal was an overnight guest in the home of a long-time friend when he

approached the daughter of another guest, seven-year-old A.B., while A.B. was

asleep on the sofa. Teal touched A.B. underneath her panties, on her buttocks,

and on her vagina. A.B. escaped and ran upstairs to her father’s room but did

not tell anyone about the incident for a few years.

[3] Eventually, A.B. reported that incident, and a subsequent alleged molestation,

to her mother. On September 11, 2015, the State charged Teal with two counts

of Child Molesting. A jury trial was conducted on July 19, 2017. Teal was

acquitted of one charge but found guilty of the molestation when A.B. was

seven. On August 8, 2017, the trial court sentenced Teal to three years

imprisonment, with two years to be executed in the Indiana Department of

Correction (“the DOC”) and one year to be suspended to sex offender

probation. Teal now appeals.

1 Ind. Code § 35-42-4-3(b) (2012).

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2029 | March 16, 2018 Page 2 of 5 Discussion and Decision [4] At the time of Teal’s offense, Indiana Code Section 35-50-2-6 provided that a

person convicted of a Class C felony was subject to a sentencing range of

between two years and eight years. The advisory sentence was four years

imprisonment. Accordingly, Teal received a sentence less than the advisory.

[5] Teal articulates his appellate issue as “whether suspending the remainder of

[his] sentence is appropriate under Ind. Appellate Rule 7(B).” Appellant’s Brief

at 4. However, this does not comport with our standard of review. As

explained by our Indiana Supreme Court, the question is not whether another

sentence is more appropriate, but rather, whether the sentence imposed is

inappropriate:

Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). The burden is on the defendant to persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).

Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). Ultimately, whether a

sentence is inappropriate turns upon the defendant’s culpability, the severity of

the crime, the damage done to others, and a myriad of other factors that may be

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2029 | March 16, 2018 Page 3 of 5 found in a given case. Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014). The

principal role of appellate review is to attempt to leaven the outliers. Bess v.

State, 58 N.E.3d 174, 175 (Ind. 2016). Teal does not challenge the length of his

sentence, but challenges his placement in the DOC. According to Teal, he

would have been well-served by “substance abuse and job training programs at

the Duvall Residential Center, a community corrections work release facility, if

the trial court had seen fit to place him there.” Appellant’s Brief at 8.

[6] The location where a sentence is to be served is an appropriate focus for our

review and revise authority. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.

2008). However, it will be quite difficult for a defendant to prevail on a claim

that the placement of his sentence is inappropriate. Id. This is because, as we

have already observed, the question is whether the sentence imposed is

inappropriate and not whether a different sentence would have been more

appropriate. Id. A defendant challenging his placement must convince us that

the placement itself is inappropriate. Id. “As a practical matter, trial courts

know the feasibility of alternative placements in particular counties or

communities. For example, a court is aware of the availability, costs, and

entrance requirements of community corrections placements in a specific

locale.” Id. (internal citation omitted.)

[7] The nature of Teal’s offense is that he approached a sleeping child, only seven

years old, and fondled her. Despite Teal’s efforts at concealment, the victim

awoke and ran to her father’s room. As for Teal’s character, he has no history

of criminal convictions and he has been consistently employed. The trial court

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2029 | March 16, 2018 Page 4 of 5 imposed a lenient sentence, one year less than the advisory and including a one-

year suspension to probation. Teal merely argues that his sentence should have

been fully suspended, such that he would not be placed in the DOC for any

period of time. He has not persuaded us that the sentence is inappropriate.

Conclusion [8] Consideration of the nature of Teal’s offense and his character does not warrant

sentence revision.

[9] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2029 | March 16, 2018 Page 5 of 5