MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2017, 8:53 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office LLC Attorney General of Indiana Brooklyn, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas W. Julian, August 7, 2017
Appellant-Defendant, Court of Appeals Case No. 84A01-1701-CR-103 v. Appeal from the Vigo Superior Court. The Honorable David R. Bolk, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause Nos. 84D03-1506-F5-1427 84D03-1507-FC-1653 84D03-1605-F5-1364 84D03-1606-FA-1505
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 1 of 6 [1] Thomas W. Julian appeals his fifty-five-year sentence upon his convictions of 1 two counts of child molesting as Level 1 felonies, two counts of child molesting 2 3 as Class C felonies, and one count of child exploitation as a Level 5 felony.
[2] Julian’s sole issue on appeal is whether his sentence is inappropriate in light of
the nature of his offenses and his character.
[3] In May 2015, the Indiana State Police received a flash drive that had been
found in a gas station parking lot. The flash drive contained images and
recordings of nude children and of children engaged in sexual acts. The person
who submitted the flash drive to the State Police recognized Julian’s voice as
well as the interior of Julian’s home on the flash drive images. Following an
investigation, Julian was charged in four different cause numbers with three
counts of child molesting as Class A felonies, two counts of child molesting as
Level 1 felonies, four counts of child molesting as Class C felonies, two counts
of child molesting as Level 4 felonies, five counts of child exploitation as Level
5 felonies, four counts of child solicitation as Class D felonies, two counts of
child solicitation as Level 5 felonies, one count of rape as a Class B felony, and
two counts of possession of child pornography as Level 6 felonies.
1 Ind. Code § 35-42-4-3(a)(1) (2014). 2 Ind. Code § 35-42-4-3(b) (1998) and (2007). 3 Ind. Code § 35-42-4-4 (b)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 2 of 6 [4] Pursuant to a plea agreement, Julian pleaded guilty to two counts of child
molesting as Level 1 felonies, two counts of child molesting as Class C felonies,
and one count of child exploitation as a Level 5 felony, with all remaining
charges dismissed. The parties argued sentencing to the court with the
agreement that Julian’s aggregate sentence would be no less than twenty years
and no more than sixty years. The trial court sentenced Julian to an aggregate
sentence of fifty-five years. Julian now appeals.
[5] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).
Sentencing is primarily a discretionary function in which the trial court’s
judgment should receive considerable deference. Stephenson v. State, 29 N.E.3d
111 (Ind. 2015). Such deference should prevail unless overcome by compelling
evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint and lack of brutality) and the defendant’s character
(such as substantial virtuous traits or persistent examples of good character). Id.
The defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
[6] We begin by looking at the nature of the offenses. Julian acknowledges that his
offenses are “disturbing.” Appellant’s Br. p. 8. Julian molested and exploited
several children between 2007 and 2015 and maintained nude and sexual
images and videos of the children on a flash drive. Julian, a man of sixty-nine
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 3 of 6 years at the time of sentencing, engaged in sexual intercourse or other sexual
conduct with K.R., a child of thirteen, and H.M., when H.M. was eleven and
twelve years of age; engaged in fondling or touching with M.M.E., a child
under fourteen years of age, and M.S., when M.S. was between the ages of six
and twelve; and managed or produced a performance that included sexual
conduct by B.J.M., a child under eighteen.
[7] With regard to the character of the offender, we note that, in sentencing Julian,
the trial court placed great emphasis on the fact that Julian’s crimes of
molestation and exploitation involved multiple victims, and for that reason, the
court characterized Julian as a “serial child molester.” Sentencing Tr. pp. 30,
31. The court also acknowledged and considered as aggravating the fact that
Julian was in a position of trust with many, if not all, of his victims, and Julian
concedes this fact in his brief to this Court. See Appellant’s Br. p. 8.
[8] Julian asserts that his criminal history is of limited significance. Although the
trial court considered this a mitigating factor, we observe that while Julian
appeared to have been a law-abiding citizen for a substantial period, it was
during this time that he engaged in acts of molestation and exploitation of
multiple children without discovery. Julian also mentions in his brief that he
was in the Navy and served in Vietnam; however, he testified at his sentencing
hearing that he was discharged from the military for a conviction of possession
of stolen property.
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 4 of 6 [9] Further, he claims he was diagnosed with antisocial character disorder in 1968,
for which he was never provided treatment. No evidence links Julian’s crimes
and his disorder; in fact, there was neither mention of this disorder at the
sentencing hearing nor a request for treatment. See Corralez v. State, 815 N.E.2d
1023 (Ind. Ct. App. 2004) (stating there must be nexus between defendant’s
mental health and crime in question in order for mental history to be considered
mitigating factor).
[10] Finally, Julian contends that although he accepted responsibility for his actions
and spared the victims from having to testify at trial, he received no real benefit
from pleading guilty because, due to his age and health problems, his sentence
amounts to a life sentence. A guilty plea can show that a defendant accepts
responsibility for his actions. Haggard v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2017, 8:53 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office LLC Attorney General of Indiana Brooklyn, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas W. Julian, August 7, 2017
Appellant-Defendant, Court of Appeals Case No. 84A01-1701-CR-103 v. Appeal from the Vigo Superior Court. The Honorable David R. Bolk, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause Nos. 84D03-1506-F5-1427 84D03-1507-FC-1653 84D03-1605-F5-1364 84D03-1606-FA-1505
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 1 of 6 [1] Thomas W. Julian appeals his fifty-five-year sentence upon his convictions of 1 two counts of child molesting as Level 1 felonies, two counts of child molesting 2 3 as Class C felonies, and one count of child exploitation as a Level 5 felony.
[2] Julian’s sole issue on appeal is whether his sentence is inappropriate in light of
the nature of his offenses and his character.
[3] In May 2015, the Indiana State Police received a flash drive that had been
found in a gas station parking lot. The flash drive contained images and
recordings of nude children and of children engaged in sexual acts. The person
who submitted the flash drive to the State Police recognized Julian’s voice as
well as the interior of Julian’s home on the flash drive images. Following an
investigation, Julian was charged in four different cause numbers with three
counts of child molesting as Class A felonies, two counts of child molesting as
Level 1 felonies, four counts of child molesting as Class C felonies, two counts
of child molesting as Level 4 felonies, five counts of child exploitation as Level
5 felonies, four counts of child solicitation as Class D felonies, two counts of
child solicitation as Level 5 felonies, one count of rape as a Class B felony, and
two counts of possession of child pornography as Level 6 felonies.
1 Ind. Code § 35-42-4-3(a)(1) (2014). 2 Ind. Code § 35-42-4-3(b) (1998) and (2007). 3 Ind. Code § 35-42-4-4 (b)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 2 of 6 [4] Pursuant to a plea agreement, Julian pleaded guilty to two counts of child
molesting as Level 1 felonies, two counts of child molesting as Class C felonies,
and one count of child exploitation as a Level 5 felony, with all remaining
charges dismissed. The parties argued sentencing to the court with the
agreement that Julian’s aggregate sentence would be no less than twenty years
and no more than sixty years. The trial court sentenced Julian to an aggregate
sentence of fifty-five years. Julian now appeals.
[5] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).
Sentencing is primarily a discretionary function in which the trial court’s
judgment should receive considerable deference. Stephenson v. State, 29 N.E.3d
111 (Ind. 2015). Such deference should prevail unless overcome by compelling
evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint and lack of brutality) and the defendant’s character
(such as substantial virtuous traits or persistent examples of good character). Id.
The defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
[6] We begin by looking at the nature of the offenses. Julian acknowledges that his
offenses are “disturbing.” Appellant’s Br. p. 8. Julian molested and exploited
several children between 2007 and 2015 and maintained nude and sexual
images and videos of the children on a flash drive. Julian, a man of sixty-nine
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 3 of 6 years at the time of sentencing, engaged in sexual intercourse or other sexual
conduct with K.R., a child of thirteen, and H.M., when H.M. was eleven and
twelve years of age; engaged in fondling or touching with M.M.E., a child
under fourteen years of age, and M.S., when M.S. was between the ages of six
and twelve; and managed or produced a performance that included sexual
conduct by B.J.M., a child under eighteen.
[7] With regard to the character of the offender, we note that, in sentencing Julian,
the trial court placed great emphasis on the fact that Julian’s crimes of
molestation and exploitation involved multiple victims, and for that reason, the
court characterized Julian as a “serial child molester.” Sentencing Tr. pp. 30,
31. The court also acknowledged and considered as aggravating the fact that
Julian was in a position of trust with many, if not all, of his victims, and Julian
concedes this fact in his brief to this Court. See Appellant’s Br. p. 8.
[8] Julian asserts that his criminal history is of limited significance. Although the
trial court considered this a mitigating factor, we observe that while Julian
appeared to have been a law-abiding citizen for a substantial period, it was
during this time that he engaged in acts of molestation and exploitation of
multiple children without discovery. Julian also mentions in his brief that he
was in the Navy and served in Vietnam; however, he testified at his sentencing
hearing that he was discharged from the military for a conviction of possession
of stolen property.
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 4 of 6 [9] Further, he claims he was diagnosed with antisocial character disorder in 1968,
for which he was never provided treatment. No evidence links Julian’s crimes
and his disorder; in fact, there was neither mention of this disorder at the
sentencing hearing nor a request for treatment. See Corralez v. State, 815 N.E.2d
1023 (Ind. Ct. App. 2004) (stating there must be nexus between defendant’s
mental health and crime in question in order for mental history to be considered
mitigating factor).
[10] Finally, Julian contends that although he accepted responsibility for his actions
and spared the victims from having to testify at trial, he received no real benefit
from pleading guilty because, due to his age and health problems, his sentence
amounts to a life sentence. A guilty plea can show that a defendant accepts
responsibility for his actions. Haggard v. State, 771 N.E.2d 668 (Ind. Ct. App.
2002), trans. denied. And, generally, a guilty plea saves judicial time and
resources, as well as sparing the victim’s family the trauma of a trial. Sensback v.
State, 720 N.E.2d 1160 (Ind. 1999). Nevertheless, a plea of guilty is not
automatically a significant mitigating factor that must be credited by the trial
court; rather, the determination is fact-sensitive. Trueblood v. State, 715 N.E.2d
1242 (Ind. 1999). “For instance, a guilty plea does not rise to the level of
significant mitigation where the defendant has received a substantial benefit
from the plea or where the evidence against him is such that the decision to
plead guilty is merely a pragmatic one.” Wells v. State, 836 N.E.2d 475, 479
(Ind. Ct. App. 2005), trans. denied. Even though the trial court assigned
significant weight to this mitigator, we note that Julian received a substantial
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 5 of 6 benefit in exchange for his plea of guilty in that he had the opportunity to argue
for a sentence of only twenty years while also having a maximum cap on his
sentence. In addition, other numerous charges, which could have resulted in a
sentence of over 100 years, were dismissed by the State. Further, the State had
significant evidence against him in the form of testimony from his victims and
the flash drive containing his voice and images of the interior of his home.
Thus, it could be said that Julian’s decision to plead guilty was a pragmatic one
for which he received a substantial benefit.
[11] In this case, we find that sentence revision is supported neither by the nature of
the offenses nor by character traits of the offender. Julian has failed to carry his
burden of persuading this Court that his sentence is inappropriate. In light of
the foregoing, we affirm the sentence of the trial court.
[12] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A01-1701-CR-103 | August 7, 2017 Page 6 of 6