Perkins v. State

172 N.E.3d 706 (Table)

Carlos James Donnivan PERKINS, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-334

Court of Appeals of Indiana.

FILED July 26, 2021

Attorney for Appellant: R. Brian Woodward, Appellate Public Defender, Office of the Lake County Public Defender, Appellate Division, Crown Point, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Kirsch, Judge.

[1] After Carlos James Donnivan Perkins ("Perkins") pleaded guilty to child molesting¹ as a level 3 felony, the trial court sentenced him to ten years, suspended two years to probation and ordered Perkins to serve his executed time in the Indiana Department of Correction ("DOC"). Perkins raises one issue, which we restate as whether his ten-year sentence is inappropriate.

[2] We affirm.

Facts and Procedural History

[3] From early January to late August of 2019, Perkins worked at Charter Academy ("the School") in Gary, Indiana as a technology assistant; he also assisted with student counseling. Appellant's Conf. App. Vol. Two at 17-18, 85; Tr. Vol. 2 at 24. A.R., a student at the School, had behavior problems, so the School asked Perkins to help A.R. curb her disruptive behavior. Tr. Vol. 2 at 55, 71.

[4] Perkins began counseling A.R., and once A.R. told Perkins she was having suicidal thoughts, they began a sexual relationship that lasted eight months. Id. at 24-25; Appellant's Conf. App. Vol. Two at 61. During the relationship, Perkins was thirty-one years old, and A.R. was thirteen years old. Appellant's Conf. App. Vol. Two at 61, 67, 85. Perkins persuaded A.R. to perform oral sex on him at least five different times. Id. Perkins took A.R. to a hotel room at least once; he paid for the hotel room with A.R.’s mother's credit card. Tr. Vol. 2 at 34, 36; Appellant's Conf. App. Vol. Two at 61. While at the hotel, Perkins attempted to have intercourse with A.R.; she pushed him off, so Perkins masturbated and ejaculated on A.R.’s back. Appellant's Conf. App. Vol. Two at 112. Perkins also touched A.R.’s chest, buttocks, and upper thighs. Tr. Vol. 2 at 24, 78. He sent A.R. pictures of his genitals and received pictures of A.R. in her underwear. Id. at 25. Perkins recorded himself kissing A.R. in his vehicle. Id. at 25, 34. Perkins told A.R. that his wife and child had died in a car accident when, in fact, they were still alive. Id. at 41, 107-08. He also told A.R. he would commit suicide if she ended their relationship. Id. at 41. A.R. said that because of her relationship with Perkins, "suicide was always on my mind." Id. 40.

[5] After A.R.’s mother found inappropriate text messages between A.R. and Perkins on A.R.s phone, A.R.’s mother contacted the police. Appellant's Conf. App. Vol. Two at 17-18. On November 22, 2019, the State charged Perkins with child molesting as a Level 1 felony, child molesting as a Level 4 felony, dissemination of material harmful to a minor, a Level 6 felony, battery by bodily waste, a Class B misdemeanor, and furnishing alcohol to a minor as a Class B misdemeanor. Id. at 16. On November 19, 2020, the State charged Perkins with child molesting as a Level 3 felony, and that same day, Perkins agreed to plead guilty to that new charge, and the State agreed to dismiss the remaining charges. Id. at 57, 59.

[6] At a December 10, 2020 hearing, Perkins pleaded guilty, and the trial court took the guilty plea under advisement. Id. at 66; Tr. Vol. 2 at 13. Later at the January 27, 2021, sentencing hearing, the trial court heard testimony and reviewed the Pre-Sentence Investigation Report ("PSI") and other documents, including letters written on Perkins's behalf by relatives, friends, and colleagues, which attested to Perkins's good character. Conf. Ex. Vol. at 6-24. At the end of the hearing, the trial court found that Perkins lied to the evaluator during the psychosexual examination. Tr. Vol. 2 at 106-07. The trial court also said the following to Perkins: 1) "I find that your character is manipulative. ... [W]hen you cried ... [y]ou cried for yourself. But there are no tears for A.R."; id. at 104-05, and 2) "I find your character to be self-absorbed ... and predatory." Id. at 105. The trial court found that Perkins's remorse was insincere and that he had not shown that he understood that his relationship with Perkins's was inappropriate. Id. at 106-07. It also found there was an average risk that Perkins would recidivate. Id. at 105; Appellant's Conf. App. Vol. Two at 74, 119-20, 124-25.

[7] The trial court found several other aggravating factors, including that Perkins: 1) caused significant harm to A.R. that was greater than the elements necessary to prove the commission of the offense, partly because Perkins victimized A.R. for eight months; 2) was in a position of trust with A.R. because he was supposed to help her overcome her behavioral problems, and he violated that position of trust; and 3) manipulated A.R. by threatening to commit suicide if she ended their relationship and preying on her by telling her that his wife and children had died, even though he knew that A.R. was a troubled, suicidal child. Tr. Vol. 2 at 18; Appellant's App. Vol. Two at 135. As mitigating factors, the trial court found: 1) Perkins had no history of delinquency or criminal activity, and 2) imprisonment would impose a hardship on Perkins and his wife and children. Appellant's App. Vol. Two at 135-36. The trial court assigned low weight to these mitigating factors. Id. at 136. It imposed a ten-year sentence on Perkins, suspended two years to probation and ordered Perkins to serve his executed time in DOC. Id. at 11, 134-36, 139; Tr. Vol. 2 at 108. Perkins now appeals. We will provide additional facts as necessary.

Discussion and Decision

[8] Perkins contends his sentence is inappropriate considering the nature of his offense and his character. He asks us to reduce his sentence to the advisory sentence of nine years, with three years to be served in DOC and the remainder to be served either on probation or through Lake County Community Corrections.

[9] Under Indiana Appellate Rule 7(B), we may revise a sentence if we find the sentence is inappropriate considering the nature of the offense and the character of the offender. Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g , 875 N.E.2d 218 (2007). The "nature of offense" compares the defendant's actions with the required showing to sustain a conviction, Cardwell v. State , 895 N.E.2d 1219, 1224 (Ind. 2008), while the "character of the offender" permits for a broader consideration of the defendant's character. Anderson v. State , 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. Whether a sentence is inappropriate turns on the culpability of the defendant, the severity of the crime, the damage done to others, and other factors that come to light. Cardwell , 895 N.E.2d at 1224.

[10] We defer to the trial court's decision; our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012). "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015). "[W]e reserve our 7(B) authority for exceptional cases." Faith v. State , 131 N.E.3d 158, 160 (Ind. 2019)

Nature of Offense

[11] Perkins contends his sentence is inappropriate considering the nature of his offense. The sum total of Perkins's argument is that "even the most execrable events come with an advisory sentence subject to reduction or enhancement within the statutory offense within the statutory range." Appellant's Br. at 10. Because Perkins's conclusory, one-sentence argument provides no substantive analysis, he has waived this issue for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (argument section of appellant's brief "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning"); see also Jarman v. State , 114 N.E.3d 911, 915 n.2 (Ind. Ct. App. 2018), trans. denied. Nonetheless, we will address this issue on the merits.

[12] The nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation. Perry v. State , 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature of the offense refers to a defendant's actions in comparison with the elements of the offense. Cardwell , 895 N.E.2d at 1224. The advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Kunberger v. State , 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). Here, Perkins pleaded guilty child molesting as a Level 3 felony. The sentencing range for a Level 3 felony is three years to sixteen years with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Thus, Perkins's ten-year sentence is six years less than the maximum sentence and only one year more than the advisory sentence.

[13] When determining whether a sentence that exceeds the advisory sentence is inappropriate, "we consider whether there is anything more or less egregious about the offense as committed by the defendant that ‘makes it different from the typical offense accounted for by the legislature when it set the advisory sentence.’ " Moyer v. State , 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State , 950 N.E.2d 803, 807 (Ind. Ct. App. 2011) ), trans. denied. Perkins was convicted of Level 3 felony child molesting, and the elements of that offense are that a person who, with a child under fourteen years of age, knowingly or intentionally...