Warren v. State

20 N.E.3d 927 (Table)

Larry WARREN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1402–CR–89.

Court of Appeals of Indiana.

Sept. 29, 2014.

Eric K. Koselke, Indianapolis, IN, Attorney for Appellant.

Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Gregory F. Zoeller, Attorney General of Indiana, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Larry Warren appeals his sentence for three counts of child molesting as class A felonies and two counts of child solicitation as class D felonies. Warren raises two issues which we revise and restate as:

I. Whether the trial court abused its discretion in sentencing him; and

II. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts as discussed in Warren's appeal from his initial sentence follow:

In approximately 1998, Warren met and became business partners with D.R., the mother of two minor daughters, J.R. and H.R. J.R. was nine years old when she met Warren, who was then approximately thirty-three years old. Soon Warren and D.R. began dating, and Warren began spending more time at D.R.'s house. Warren became a companion to J.R., driving her to skating lessons, taking her to movies, and taking her out to eat. At some point while J.R. was still nine years old, Warren began engaging in frequent sexual activity with her. For the first few years, the sexual activity included activities like oral sex but excluded intercourse. Then, when J.R. was thirteen years old, she and Warren began engaging in intercourse. Warren would often videotape sexual encounters with J.R., and he took inappropriate photographs of her. When J.R. was approximately fourteen and a half years old, Warren moved out of state for work.

When J.R. was eighteen or nineteen years old, she began a relationship with Warren, and he paid her rent on an apartment for one year. When Warren informed J.R. that he would not be renewing her lease, J.R. contacted police to report the incidents of child molesting Warren had committed during her childhood. J.R. had recovered a videotape recording depicting Warren and then-fourteen-year-old J.R. engaging in sexual activity, and she turned that videotape over to the police. J.R. also gave police inappropriate photographs Warren had taken of her when she was a minor.

Warren v. State, No. 49A04–1301–CR–25, slip op. at 2–3 (Ind.Ct .App. October 8, 2013).

The State charged Warren with five counts of child molesting as class A felonies and five counts of sexual misconduct with a minor as class B felonies. The trial court subsequently dismissed the sexual misconduct counts because the statute of limitations had run, and the State moved to amend the information to add two counts of child solicitation as class D felonies. Id. at 3. The court granted the State's motion to amend. Id. A jury found Warren guilty of three counts of child molesting as class A felonies, and the two child solicitation counts, but acquitted Warren on two of the child molesting counts. Id.

The court sentenced Warren to forty years for each child molesting conviction and three years for each child solicitation conviction. Id. The court ordered that the sentences run concurrently, except that one of the sentences for child molesting would run consecutive to the others, for an aggregate term of eighty years. Id.

Warren appealed and argued that the trial court sentenced him in violation of his rights under Blakely v. Washington, 542 U.S. 296 (2004). Id. at 3. On appeal, we observed that Warren committed the offenses prior to the amendments to Indiana's sentencing scheme in April 2005; therefore, he was entitled to be sentenced under the former presumptive sentencing scheme to which Blakely applied. Id. at 3–4. We held that Warren's testimony was sufficient to establish that he was in a position of trust with J.R. and that this aggravator did not violate Blakely. Id. at 5. We also held that two of the trial court's other aggravators violated Blakely. Id. at 6. We remanded with instructions to afford the State an election to prove to a jury those aggravating circumstances initially presented to, and found by, the trial court. Id. We also held that should the State forgo this election, the trial court should reconsider the appropriate sentence based on the violation of a position of trust aggravator. Id.

On remand, the trial court held a hearing on January 16, 2014. The prosecutor indicated that the State would not have a jury trial to present evidence regarding the aggravators and that it would go forward on the aggravator of position of trust. Warren testified regarding his accomplishments since being incarcerated and that he had no conduct reports during that time. Specifically, he completed a ten-week course titled “Criminal Thinking” and an anger management course, participated in Bible studies and a veterans' group therapy course, almost completed an addiction course, was employed by PEN Products, was enrolled in an apprenticeship program, served as an executive officer with the American Legion, attended church every Saturday, and played softball and assisted in coaching. Defendant's Exhibit 1. He also testified that he served in the United States Army from 1984 to 1987 with the 82nd Airborne, that he began as an E1 private and left as an E5 sergeant, and then completed three years with the Virginia National Guard. He testified that he had been diagnosed with post-traumatic stress disorder (“PTSD”) in 1987 and was still being treated for PTSD.

Warren stated:

I have allowed myself to be put in situations that I should not have. And I've had to live with that every day. And I do apologize for my actions. I apologize for putting the Courts through this as well as the prosecutors, as well as my family and my attorneys. I just ask, Your Honor, to please have mercy on me. I deeply regret what I've done. And these things will never ... I will never allow these things to happen or be put in that position ever again, Your Honor. And I just would like to have mercy and ask mercy from the Courts and so that I can ... so I can go home and be with my family and take care of my father, Your Honor. And be with my mom.

January 16, 2014 Transcript at 11.

The court found Warren's lack of a prior criminal record as a mitigator. The court stated: “with respect to the proposed mitigator that you're likely to respond well to short term imprisonment and your low risk to re-offend, the Court finds there is insufficient evidence to justify that mitigator and rejects that mitigator looking at the nature and circumstances of the offense and convictions.” Id. at 18. The court rejected Warren's proposed mitigator of his PTSD. The court also rejected Warren's proposed mitigator that he was molested as a child and stated: “If you were molested as a child, if that's true, then you understand the pain and the trauma that has resulted by being a victim of molest.” Id . The court rejected Warren's proposed mitigator that he was on GPS monitoring for two years and did not re-offend. The court found the position of trust Warren had with J.R. as an aggravator and that the aggravator outweighed the mitigator. The court sentenced Warren to thirty-five years for each of his convictions for child molesting as class A felonies. The court sentenced Warren to three years for each of the convictions of child solicitation as class D felonies. The court ordered one of the counts of child molesting to be served consecutive to one of the other counts of child molesting and ordered that the remaining sentences be served concurrent with each other. Thus, the court sentenced Warren to an aggregate sentence of seventy years.

DISCUSSION

I.

The first issue is whether the trial court abused its discretion in sentencing Warren. Under the pre-April 25, 2005 sentencing statutes, sentencing decisions rest within the discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Smallwood v. State, 773 N.E.2d 259, 263 (Ind.2002). An abuse of discretion occurs if “the decision is clearly against the logic and effect of the facts and circumstances” before the court. Pierce v. State, 705 N.E.2d 173, 175 (Ind.1998). In order for a trial court to impose an enhanced sentence, it must: (1) identify the significant aggravating factors and mitigating factors; (2) relate the specific facts and reasons that the court found to those aggravators and mitigators; and (3) demonstrate that the court has balanced the aggravators with the mitigators. Veal v. State, 784 N.E.2d 490, 494 (Ind.2003).

Warren argues that the trial court failed to identify his military service as a mitigator. He alleges that his military career was exemplary and lengthy. He also points out that he developed PTSD while he was serving and that he was still being treated for his PTSD at the time of resentencing. He further asserts that his “prison conduct adjustment” should have been considered as a mitigating circumstance. Appellant's Brief at 6. With respect to his prison adjustment, Warren argues that he served eleven months in the Department of Correction, had no write-ups, completed a ten-week anger management program, a criminal thinking course, and had almost completed a twelve-week addiction course. He contends that he enrolled in a veterans' group therapy course, held a job as a sewing machine operator, served as an executive officer with the American Legion, attended church regularly, participated in a play, and coached softball while incarcerated. Lastly, he argues that his low risk to re-offend and likelihood to respond to short term imprisonment constituted mitigating circumstances.

The State argues that Warren did not specifically advance his military service as a mitigating circumstance and waived this argument. The State also argues that, even if Warren did not waive his argument, the alleged mitigating...