Comer v. State

• Decision Date: 19 December 2005
• Docket Number: No. 27A04-0504-CR-180.,27A04-0504-CR-180.
• Citation: 839 N.E.2d 721
• Parties: Gregory J. COMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

839 N.E.2d 721

Gregory J. COMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A04-0504-CR-180.

Court of Appeals of Indiana.

December 19, 2005.

COPYRIGHT MATERIAL OMITTED

Shane E. Beal, Marion, for Appellant.

Steve Carter, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SHARPNACK, Judge.

Gregory Comer appeals his sentences for one count of child molestation as a class B felony¹ and one count of child molestation as a class C felony.² Comer raises two issues, which we revise and restate as:

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

II. Whether Comer's sentence is inappropriate.

We reverse and remand for resentencing.³

The relevant facts follow. In January 2000, Comer married Angela Comer. Angela had two daughters prior to the marriage. The older of Angela's daughters, T.H., was born on March 27, 1991. Two children were born to the marriage. Between Thanksgiving and Christmas of 2003, Comer "inappropriately" fondled and touched T.H. on her breasts and vagina and performed oral sex on T.H. Transcript at 9. Comer also showed T.H. pornographic videos and touched himself in front of her. Comer told Angela that he had shown the pornographic videotapes to T.H.

T.H. told a youth leader about the molestation, and the authorities were called. Detective Lisa Himelick with the Grant County Sheriff's Department asked Angela about the allegations, and Angela told Detective Himelick that she did not know what to believe and that T.H. had lied to her before. On the way to an interview at Child Protective Services, Angela told T.H. that she was concerned about the family's welfare if Comer got into trouble and "not to make a mountain out of a mole hill." Transcript at 17. Angela also told T.H. to tell them that "this was all just a big lie that we'll deal with it ourselves as a family." Appellant's Appendix at 20. The State charged Angela with child neglect and attempted obstruction of justice. T.H.'s relationship with Angela became strained, and T.H. no longer has "a lot of trust" in Angela. Transcript at 25. T.H. and her biological sister began living with their grandmother.

The State charged Comer with: (1) Count I, child molesting as a class A felony;⁴ (2) Count II, child molesting as a class C felony; (3) Count III, child molesting as a class C felony; and (4) Count IV, vicarious sexual gratification as a class D felony.⁵ Comer pleaded guilty to a lesser included offense of child molesting as a class B felony and child molesting as a class C felony, and the State dismissed the remaining charges. The plea agreement left the sentence up to the discretion of the trial court.

On February 4, 2005, the trial court held a sentencing hearing. In the presentence investigation report, the probation officer recommended that the following be considered as an aggravating factor, "The victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age or older. The [victim] would have been eleven at the time of the crime." Appellant's Appendix at 47. At the sentencing hearing, Comer asked the trial court to consider the following mitigating factors: (1) Comer was cooperative with police; (2) Comer accepted responsibility for his actions by pleading guilty; (3) Comer has no criminal record; (4) Comer is likely to respond to probation; and (5) Comer apologized to the trial court and to T.H. Comer's counsel agreed with the recommendation of the aggravator that T.H was less than twelve years of age at the time of the offenses.

The trial court found the following aggravating circumstances: (1) "Defendant's victim was under the age 12 years at the time of commission of these offenses;" (2) "Defendant was in a position of trust with his victim since he was her stepfather;" and (3) "Defendant's acts has [sic] destroyed the family network and the victim's relationship with her mother which will probably never be restored." Id. at 60. The trial court found the following mitigating factors: (1) "Defendant has no prior criminal history;" and (2) "Defendant appears to be remorseful and has apologized to his victim." Id. The trial court sentenced Comer to fifteen years on the child molesting as a class B felony conviction with five years suspended and eight years on the child molesting as a class C felony conviction. The trial court ordered the sentences to be served concurrently.

I.

The first issue is whether the trial court abused its discretion in sentencing Comer. 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." 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).

Our courts frequently hold that a single aggravating circumstance may be sufficient to support the imposition of an enhanced sentence. Deane v. State, 759 N.E.2d 201, 205 (Ind.2001); see also Battles v. State, 688 N.E.2d 1230, 1235 (Ind.1997) (holding that "a criminal history suffices by itself to support an enhanced sentence"). Even when a trial court improperly applies an aggravator, a sentence enhancement may be upheld if other valid aggravators exist. Pickens v. State, 767 N.E.2d 530, 535 (Ind.2002). "[W]e will remand for resentencing if we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances." Id. The Indiana Supreme Court has held that this "does not mean that any single aggravator will suffice in all situations." Deane, 759 N.E.2d at 205. For example, a "non-violent misdemeanor ten years in the past . . . would hardly warrant adding ten or twenty years to the standard sentence." Id. Comer argues that the trial court: (A) improperly considered certain aggravators; and (B) failed to consider certain mitigators.

A. Aggravators

The trial court found the following aggravators: (1) Comer's victim was under the age of twelve years at the time of the offenses; (2) Comer was in a position of trust with his victim because he was her stepfather; and (3) Comer's acts destroyed the family network and the victim's relationship with her mother which will probably never be restored. Comer concedes that the trial court properly found his position of trust with the victim as an aggravating factor. Comer argues that the trial court improperly found the remaining aggravating factors.

Comer argues that the trial court improperly found that the victim's age was less than twelve years of age because the victim was at least eight months past her twelfth birthday at the time of the offenses. The State acknowledges that there is no evidence in the record that establishes that T.H. was under the age of twelve at the time of the offenses. The charging information states that T.H. was "twelve (12) years of age." Appellant's Appendix at 7-9. At the probable cause hearing, Detective Himelick testified that T.H.'s date of birth was March 27, 1991, which indicates that T.H. was more than twelve years old at the time of the offenses. Further, the following exchange occurred at the guilty plea hearing:

BY THE COURT: And she was under the age of 12? Is that correct?

BY DEFENDANT: She was at the age of 12.

BY THE COURT: I'm sorry. I misread this. She was at the age of 12?

BY DEFENDANT: Yes.

Transcript at 10. The only indication that T.H. was less than twelve years old comes from the presentence investigation report, which recites:

The officer has found the following aggravating factors:

1. I.C. 35-38-1-7(b)(5) The victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age or older. The [victim] would have been eleven at the time of the crime.

Appellant's Appendix at 47. The State concedes that the probation officer incorrectly listed the victim's age of less than twelve years as an aggravating factor.

The State argues that the use of this aggravating error is not reversible error because Comer invited it. The State directs us to the following comments of Comer's defense attorney during closing argument, "I agree with [the probation officer]'s finding of the aggravator that she was less than 12 years of age at the time, and I also agree with his finding of the mitigators."⁶ Transcript at 33. Even assuming that Comer invited the error, we will nonetheless review the trial court's sentencing order because it is our duty to "correct sentencing errors, sua sponte, if necessary." Dickson v. State, 624 N.E.2d 472, 474 (Ind.Ct.App.1993). See, e.g., Logan v. State, 729 N.E.2d 125, 136 (Ind.2000) (addressing the trial court's error in sentencing defendant sua sponte); Jordan v. State, 510 N.E.2d 655, 659-660 (Ind.1987) ("The State argues that since [defendant] did not raise the issue on appeal, it has been waived. However, we view this as fundamental error as it renders the evidence insufficient to support the determination of habitual offender and hereby raise it sua sponte."); see also Jones v. State, 775 N.E.2d 322, 331 (Ind.Ct.App.2002) (holding that although defendant's argument inadequately attacked the factual basis relied on by the trial court to impose consecutive sentences, we will nonetheless review the legality of the trial court's sentencing order).

The charging information, testimony at the probable cause hearing, and testimony at the guilty plea hearing indicate that T.H. was not less...