MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 17 2017, 8:31 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 Kristin A. Mulholland Curtis T. Hill, Jr. Appellate Public Defender Attorney General Crown Point, Indiana Denise A. Robinson Senior Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Samuel Jacob Fies, March 17, 2017 Appellant-Defendant, Court of Appeals Case No. 45A05-1611-CR-2547 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1609-FB-2
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 1 of 6 Case Summary [1] Samuel Jacob Fies appeals the five-year aggregate sentence imposed by the trial
court following his guilty plea to one count of class C felony sexual misconduct
with a minor and one count of class A misdemeanor inappropriate
communication with a child. His sole contention on appeal is that his sentence
is inappropriate in light of both the nature of the offenses and his character.
Concluding that Fies has not met his burden of demonstrating that his sentence
is inappropriate, we affirm.
Facts and Procedural History [2] The relevant facts indicate that between May 2010 and October 2011, then
thirty-two-year-old Fies served as a social studies teacher and track and cross
country coach in the Highland school system. During September 2011, Fies
was in a middle school classroom with fifteen-year-old student S.C., when he
grabbed her breast and genitalia with the intent to arouse or to satisfy his or
S.C.’s sexual desires.
[3] Between December 2010 and October 2011, thirteen-year-old L.D. was a
student at Highland Middle School. During that time, she came into contact
and communicated with Fies through social media sites on the internet. During
these communications, Fies discussed both general and specific acts of sexual
activity with L.D., including asking L.D. to send pictures “up her dress” to
him, and asking her to perform sexual acts on him and herself. Appellant’s
App. at 12. Fies engaged in these communications with the intent to gratify his
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 2 of 6 or L.D.’s sexual desires. At the time of the communications, Fies believed L.D.
to be less than fourteen years of age.
[4] The State charged Fies with one count of class B felony sexual misconduct with
a minor, one count of class C felony sexual misconduct with a minor, one
count of class C felony child molesting, one count of class D felony criminal
confinement, one count of class C felony child solicitation, and one count of
class D felony attempted child seduction. On July 12, 2016, Fies pled guilty to
one count of class C felony sexual misconduct with a minor and an amended
charge of class A misdemeanor inappropriate communication with a child.1
The remaining charges were dismissed. Pursuant to the plea agreement,
sentencing was left to the trial court’s discretion with the exception that the
sentences imposed would be ordered served concurrently. Following a
sentencing hearing, the trial court imposed a five-year sentence on the felony
count to be served concurrently with a one-year sentence on the misdemeanor
count, for a total executed sentence of five years. This appeal ensued.
Discussion and Decision [5] Fies claims that his sentence is inappropriate and invites this Court to reduce
his sentence pursuant to Indiana Appellate Rule 7(B), which provides that we
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find that the sentence “is inappropriate in light of the
1 See Ind. Code §§ 35-42-4-9 and 35-42-4-13.
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 3 of 6 nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate 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 facts that come to light in a given
case.” Id. at 1224. Our appellate review should focus on the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number
of counts, or length of the sentence on any individual count. Gleason v. State,
965 N.E.2d 702, 712 (Ind. Ct. App. 2012).
[6] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a class C felony is between two and eight years, with the advisory sentence
being four years. Ind. Code § 35-50-2-6. A person who commits a class A
misdemeanor shall be imprisoned for a fixed term of not more than one year.
Ind. Code § 35-50-3-2. Here, the trial court imposed concurrent sentences,
resulting in an aggregate executed sentence of five years, which is only slightly
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 4 of 6 above the advisory sentence for a class C felony and well below the maximum
allowable sentence.2
[7] Fies makes no argument that a sentence reduction is warranted based upon the
nature of his offenses. Indeed, he concedes that his actions of touching S.C.
and inappropriately communicating with L.D. with the intent to arouse or to
satisfy/gratify his or his victims’ sexual desires were “troubling” especially
because “the two were students at the school where he was a teacher.”
Appellant’s Br. at 14. However, he urges us to give more weight to the nature
of his character and requests that we base our decision primarily on that
element of the 7(B) analysis. See Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct.
App. 2016) (observing that appellate court must consider both elements of 7(B)
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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 Mar 17 2017, 8:31 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 Kristin A. Mulholland Curtis T. Hill, Jr. Appellate Public Defender Attorney General Crown Point, Indiana Denise A. Robinson Senior Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Samuel Jacob Fies, March 17, 2017 Appellant-Defendant, Court of Appeals Case No. 45A05-1611-CR-2547 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1609-FB-2
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 1 of 6 Case Summary [1] Samuel Jacob Fies appeals the five-year aggregate sentence imposed by the trial
court following his guilty plea to one count of class C felony sexual misconduct
with a minor and one count of class A misdemeanor inappropriate
communication with a child. His sole contention on appeal is that his sentence
is inappropriate in light of both the nature of the offenses and his character.
Concluding that Fies has not met his burden of demonstrating that his sentence
is inappropriate, we affirm.
Facts and Procedural History [2] The relevant facts indicate that between May 2010 and October 2011, then
thirty-two-year-old Fies served as a social studies teacher and track and cross
country coach in the Highland school system. During September 2011, Fies
was in a middle school classroom with fifteen-year-old student S.C., when he
grabbed her breast and genitalia with the intent to arouse or to satisfy his or
S.C.’s sexual desires.
[3] Between December 2010 and October 2011, thirteen-year-old L.D. was a
student at Highland Middle School. During that time, she came into contact
and communicated with Fies through social media sites on the internet. During
these communications, Fies discussed both general and specific acts of sexual
activity with L.D., including asking L.D. to send pictures “up her dress” to
him, and asking her to perform sexual acts on him and herself. Appellant’s
App. at 12. Fies engaged in these communications with the intent to gratify his
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 2 of 6 or L.D.’s sexual desires. At the time of the communications, Fies believed L.D.
to be less than fourteen years of age.
[4] The State charged Fies with one count of class B felony sexual misconduct with
a minor, one count of class C felony sexual misconduct with a minor, one
count of class C felony child molesting, one count of class D felony criminal
confinement, one count of class C felony child solicitation, and one count of
class D felony attempted child seduction. On July 12, 2016, Fies pled guilty to
one count of class C felony sexual misconduct with a minor and an amended
charge of class A misdemeanor inappropriate communication with a child.1
The remaining charges were dismissed. Pursuant to the plea agreement,
sentencing was left to the trial court’s discretion with the exception that the
sentences imposed would be ordered served concurrently. Following a
sentencing hearing, the trial court imposed a five-year sentence on the felony
count to be served concurrently with a one-year sentence on the misdemeanor
count, for a total executed sentence of five years. This appeal ensued.
Discussion and Decision [5] Fies claims that his sentence is inappropriate and invites this Court to reduce
his sentence pursuant to Indiana Appellate Rule 7(B), which provides that we
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find that the sentence “is inappropriate in light of the
1 See Ind. Code §§ 35-42-4-9 and 35-42-4-13.
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 3 of 6 nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate 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 facts that come to light in a given
case.” Id. at 1224. Our appellate review should focus on the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number
of counts, or length of the sentence on any individual count. Gleason v. State,
965 N.E.2d 702, 712 (Ind. Ct. App. 2012).
[6] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a class C felony is between two and eight years, with the advisory sentence
being four years. Ind. Code § 35-50-2-6. A person who commits a class A
misdemeanor shall be imprisoned for a fixed term of not more than one year.
Ind. Code § 35-50-3-2. Here, the trial court imposed concurrent sentences,
resulting in an aggregate executed sentence of five years, which is only slightly
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 4 of 6 above the advisory sentence for a class C felony and well below the maximum
allowable sentence.2
[7] Fies makes no argument that a sentence reduction is warranted based upon the
nature of his offenses. Indeed, he concedes that his actions of touching S.C.
and inappropriately communicating with L.D. with the intent to arouse or to
satisfy/gratify his or his victims’ sexual desires were “troubling” especially
because “the two were students at the school where he was a teacher.”
Appellant’s Br. at 14. However, he urges us to give more weight to the nature
of his character and requests that we base our decision primarily on that
element of the 7(B) analysis. See Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct.
App. 2016) (observing that appellate court must consider both elements of 7(B)
analysis when determining whether sentence is inappropriate even if defendant
essentially concedes that sentence imposed would be warranted if court only
considered one prong). This is an “acceptable request for exercise of our
review and revise power” as our 7(B) review is a “holistic approach” which
requires an analysis of the overall sentence to determine if it is inappropriate.
Id.
[8] Fies emphasizes his lack of criminal history, his decision to plead guilty, his
gainful employment, his sincere remorse, his law-abiding behavior on pretrial
release, and the letters of support from third parties as evidence of his good
2 Fies erroneously and repeatedly states that the sentencing range for a class C felony is between two and six years, rather than between two and eight years, and asserts that his five-year sentence is “nearly the maximum permitted.” Appellant’s Br. at 14; Reply Br. at 5. This is simply incorrect.
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 5 of 6 character. We do not discount this evidence. Still, this evidence does not paint
a complete picture of Fies’s character. Instead, we agree with the trial court
that his manipulative, opportunistic, and predatory behavior toward his young
student victims “bodes against [his] character.” Tr. at 90. Moreover, as we
noted above, Fies five-year sentence is only slightly above the advisory sentence
and well below the maximum for a class C felony of a very serious nature.
Under the circumstances, Fies has not met his burden to persuade us that his
five-year executed sentence is inappropriate in light of both the nature of his
offenses and his character. Therefore, we affirm the sentence imposed by the
trial court.
[9] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017 Page 6 of 6