Pursuant to Ind.Appellate Rule 65(D), Sep 18 2013, 5:32 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT L. BARNHART GREGORY F. ZOELLER Keffer Barnhart LLP Attorney General of Indiana Indianapolis, Indiana CYNTHIA A. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
RYAN SCHONABAUM, ) ) Appellant-Defendant, ) ) vs. ) No. 82A04-1302-CR-44 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Carl A. Heldt, Judge Cause No. 82C01-0002-CF-158
September 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Ryan Schonabaum appeals the fifty-year sentence imposed for two convictions of
Class A felony child molesting.1 He asserts the trial court abused its discretion by failing to
consider significant mitigators supported by the record and his sentence is inappropriate in
light of his character and offense. We affirm.
FACTS AND PROCEDURAL HISTORY
Between September and December of 1999, twenty-six-year-old Schonabaum
performed oral sex on K.R. and C.R., both of whom were under the age of fourteen. He pled
guilty to two counts of Class A felony child molesting pursuant to an agreement that
provided his sentences would be served concurrently. The court accepted his plea and
entered the convictions. After the sentencing hearing, the court found no mitigating factors,
but found the following aggravators:
[D]efendant has a history of criminal activity. Specifically he has a felony conviction for Child Molesting . . . and the Court finds great significance that he was just released from probation September 1999, the same month that he committed the instant offense. The Court also believes that any sort of a reduced sentence in this case would depreciate the seriousness of the crime and the . . . and he’s obviously in need of a long period of incarceration, primarily to protect other children from him.
(Tr. at 18.) Based thereon, the court entered two fifty-year sentences and ordered them
served concurrently.
DISCUSSION AND DECISION
1. Abuse of Discretion
When the trial court imposes a sentence within the statutory range, we review for an
1 Ind. Code § 35-42-4-3(a)(1). 2 abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g
875 N.E.2d 218 (Ind. 2007). We may reverse a decision that is “clearly against the logic and
effect of the facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id. (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct.
App. 1985)).
Our review of the trial court’s exercise of discretion in sentencing includes an
examination of its reasons for imposing the sentence. Id. “This necessarily requires a
statement of facts, in some detail, which are peculiar to the particular defendant and the
crime . . . [and] such facts must have support in the record.” Id. The trial court is not
required to find mitigating factors or give them the same weight the defendant does. Flickner
v. State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009). However, a court abuses its discretion if
it does not consider significant mitigators “clearly supported by the record and advanced for
consideration.” Anglemyer, 868 N.E.2d at 491. Once aggravators and mitigators have been
identified, the trial court has no obligation to weigh those factors. Id.
Schonabaum first asserts the court should have found his guilty plea a mitigator. “An
allegation that the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is not only supported by the record but
also that the mitigating evidence is significant.” Anglemyer, 875 N.E.2d at 221. A “guilty
plea may not be significantly mitigating when it does not demonstrate the defendant’s
acceptance of responsibility, or when the defendant receives a significant benefit in return for
the plea.” Id.
3 Schonabaum’s guilty plea provided his sentences would be served concurrently, which
reduced his possible sentence from one hundred years to fifty years. Schonabaum admitted
the crimes in a taped statement given after he waived his rights. He suggested to the officer
preparing the presentence investigation report that his eight-year-old victim had some
responsibility for her molestation because she was “coming on to him.” (App. Vol. II at 20.)
Under these circumstances, as Schonabaum’s plea was pragmatic and brought him a great
benefit, we conclude the trial court did not abuse its discretion by failing to mention the plea
as a mitigator. See Anglemyer, 875 N.E.2d at 221 (concluding court did not abuse its
discretion by omitting reference to a plea when evidence against defendant was
“overwhelming” and defendant received the benefit of dismissed charges and a reduced
sentence).
Next, Schonabaum alleges the court “erred when it failed to recognize [his] difficult
childhood and prior experience as a molestation victim as significant mitigating factors.”
(Br. of Appellant at 5.) He asserts he should be seen as “less culpable” because “he was
around the age of the victims in this case when he was molested himself.” (Id.) We note
Schonabaum did not testify at trial or submit any documentary evidence to support these
allegations. Rather, the only reference to them in the record is in the unsworn statements he
gave for the presentence investigation report. (App. Vol. II at 23, 27.) We are inclined to
agree with the State, which asserts Schonabaum’s molestation as a child, rather than being a
mitigator, means he was “in a position to understand intimately the harm that child molesting
causes victims.” (Br. of Appellee at 6.) Nevertheless, as our Indiana Supreme Court has
4 “held that evidence of a difficult childhood is entitled to little, if any, mitigating weight,”
Bethea v. State, 983 N.E.2d 1134, 1141 (Ind. 2013), we cannot hold the trial abused its
discretion by overlooking this proposed mitigator.
2. Inappropriateness
We may revise a sentence if it is inappropriate in light of the nature of the offense and
the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008)
(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found
by the trial court, but also any other factors appearing in the record. Roney v. State, 872
N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of
demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
When considering the nature of the offense, the advisory sentence is the starting point
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Pursuant to Ind.Appellate Rule 65(D), Sep 18 2013, 5:32 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT L. BARNHART GREGORY F. ZOELLER Keffer Barnhart LLP Attorney General of Indiana Indianapolis, Indiana CYNTHIA A. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
RYAN SCHONABAUM, ) ) Appellant-Defendant, ) ) vs. ) No. 82A04-1302-CR-44 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Carl A. Heldt, Judge Cause No. 82C01-0002-CF-158
September 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Ryan Schonabaum appeals the fifty-year sentence imposed for two convictions of
Class A felony child molesting.1 He asserts the trial court abused its discretion by failing to
consider significant mitigators supported by the record and his sentence is inappropriate in
light of his character and offense. We affirm.
FACTS AND PROCEDURAL HISTORY
Between September and December of 1999, twenty-six-year-old Schonabaum
performed oral sex on K.R. and C.R., both of whom were under the age of fourteen. He pled
guilty to two counts of Class A felony child molesting pursuant to an agreement that
provided his sentences would be served concurrently. The court accepted his plea and
entered the convictions. After the sentencing hearing, the court found no mitigating factors,
but found the following aggravators:
[D]efendant has a history of criminal activity. Specifically he has a felony conviction for Child Molesting . . . and the Court finds great significance that he was just released from probation September 1999, the same month that he committed the instant offense. The Court also believes that any sort of a reduced sentence in this case would depreciate the seriousness of the crime and the . . . and he’s obviously in need of a long period of incarceration, primarily to protect other children from him.
(Tr. at 18.) Based thereon, the court entered two fifty-year sentences and ordered them
served concurrently.
DISCUSSION AND DECISION
1. Abuse of Discretion
When the trial court imposes a sentence within the statutory range, we review for an
1 Ind. Code § 35-42-4-3(a)(1). 2 abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g
875 N.E.2d 218 (Ind. 2007). We may reverse a decision that is “clearly against the logic and
effect of the facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id. (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct.
App. 1985)).
Our review of the trial court’s exercise of discretion in sentencing includes an
examination of its reasons for imposing the sentence. Id. “This necessarily requires a
statement of facts, in some detail, which are peculiar to the particular defendant and the
crime . . . [and] such facts must have support in the record.” Id. The trial court is not
required to find mitigating factors or give them the same weight the defendant does. Flickner
v. State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009). However, a court abuses its discretion if
it does not consider significant mitigators “clearly supported by the record and advanced for
consideration.” Anglemyer, 868 N.E.2d at 491. Once aggravators and mitigators have been
identified, the trial court has no obligation to weigh those factors. Id.
Schonabaum first asserts the court should have found his guilty plea a mitigator. “An
allegation that the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is not only supported by the record but
also that the mitigating evidence is significant.” Anglemyer, 875 N.E.2d at 221. A “guilty
plea may not be significantly mitigating when it does not demonstrate the defendant’s
acceptance of responsibility, or when the defendant receives a significant benefit in return for
the plea.” Id.
3 Schonabaum’s guilty plea provided his sentences would be served concurrently, which
reduced his possible sentence from one hundred years to fifty years. Schonabaum admitted
the crimes in a taped statement given after he waived his rights. He suggested to the officer
preparing the presentence investigation report that his eight-year-old victim had some
responsibility for her molestation because she was “coming on to him.” (App. Vol. II at 20.)
Under these circumstances, as Schonabaum’s plea was pragmatic and brought him a great
benefit, we conclude the trial court did not abuse its discretion by failing to mention the plea
as a mitigator. See Anglemyer, 875 N.E.2d at 221 (concluding court did not abuse its
discretion by omitting reference to a plea when evidence against defendant was
“overwhelming” and defendant received the benefit of dismissed charges and a reduced
sentence).
Next, Schonabaum alleges the court “erred when it failed to recognize [his] difficult
childhood and prior experience as a molestation victim as significant mitigating factors.”
(Br. of Appellant at 5.) He asserts he should be seen as “less culpable” because “he was
around the age of the victims in this case when he was molested himself.” (Id.) We note
Schonabaum did not testify at trial or submit any documentary evidence to support these
allegations. Rather, the only reference to them in the record is in the unsworn statements he
gave for the presentence investigation report. (App. Vol. II at 23, 27.) We are inclined to
agree with the State, which asserts Schonabaum’s molestation as a child, rather than being a
mitigator, means he was “in a position to understand intimately the harm that child molesting
causes victims.” (Br. of Appellee at 6.) Nevertheless, as our Indiana Supreme Court has
4 “held that evidence of a difficult childhood is entitled to little, if any, mitigating weight,”
Bethea v. State, 983 N.E.2d 1134, 1141 (Ind. 2013), we cannot hold the trial abused its
discretion by overlooking this proposed mitigator.
2. Inappropriateness
We may revise a sentence if it is inappropriate in light of the nature of the offense and
the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008)
(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found
by the trial court, but also any other factors appearing in the record. Roney v. State, 872
N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of
demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
When considering the nature of the offense, the advisory sentence is the starting point
to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at 494. The advisory
sentence for a Class A felony is thirty years, with a range of twenty to fifty years. Ind. Code §
35-50-2-4. Schonabaum was sentenced to fifty years for each conviction; however his plea
agreement’s requirement that the sentences be ordered served concurrently reduced his
possible sentence from one hundred years to fifty years. Schonabaum’s offenses involved
two different girls, one eight years old and one seven years old.
When considering the character of the offender, one relevant fact is the defendant’s
criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The
significance of a criminal history in assessing a defendant’s character varies based on the
5 gravity, nature, and number of prior offenses in relation to the current offense. Id.
Schonabaum’s criminal history included convictions in 1995 of one count of Class C felony
child molesting and one count of Class D felony child molesting. Schonabaum was released
from four years of probation for those convictions on September 1, 1999, which is the same
month he began committing the molestations underlying the charges herein. According to
the presentence investigation report, Schonabaum claimed he began fondling the eight-year
old because she “was coming on to him,” (App. Vol. II at 20), by “leaning against him while
he was showing her how to run a program on his computer.” (Id.) Based on his criminal
history, his commission of these crimes immediately upon completing probation, and his
suggestion an eight-year-old girl wanted to engage in sexual activity with him, we cannot say
his fifty-year sentence is inappropriate.
CONCLUSION
The trial court did not abuse its discretion in sentencing Schonabaum, nor is his
sentence inappropriate based on his character and the nature of the offense. Accordingly, we
affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.