Connor v. State

• Decision Date: 02 August 2016
• Docket Number: No. 03A05–1511–CR–1893.,03A05–1511–CR–1893.
• Citation: 58 N.E.3d 215
• Parties: William A. CONNOR, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

58 N.E.3d 215

William A. CONNOR, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 03A05–1511–CR–1893.

Court of Appeals of Indiana.

Aug. 2, 2016.

R. Patrick Magrath, Laura Raiman, Alcorn Sage Schwartz & Magrath, LLP, Madison, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Case Summary and Issue

ROBB

, Judge.

[1] William Connor entered a plea of guilty to criminal deviate conduct as a Class B felony, in exchange for which the State dismissed a charge in a separate case. The trial court sentenced Connor to fourteen years in the Indiana Department of Correction (“DOC”) with four years suspended to probation. Connor appeals his sentence, raising the sole issue of whether it is inappropriate in light of the nature of his offense and his character. Concluding his sentence is not inappropriate, we affirm.

Facts and Procedural History¹

[2] Connor was born in 1997 in Russia. At age three, severely malnourished and unable to speak, he was placed in an orphanage. He was adopted by the Connors at age four and raised with the Connors' two biological daughters, M.C. and J.C. Connor has attempted suicide on several occasions and has been involved with mental health services for several years. He has been diagnosed with reactive attachment and bipolar disorders

.

[3] On February 23, 2015, sixteen-year-old J.C. reported to law enforcement that Connor, then seventeen years old, had engaged in sexual conduct with her against her will multiple times over the past two years. Connor admitted to the sexual contact when interviewed by police. On February 27, 2015, the State charged Connor with criminal deviate conduct, a Class B felony (“Cause 1033”).² A jury trial was scheduled for July 28, 2015.

[4] On April 15, 2015, the State charged Connor with rape as a Level 3 felony for acts committed against a second victim (“Cause 1937”). Connor obtained a continuance of his July jury trial date in Cause 1033 and ultimately reached an agreement with the State to plead guilty to criminal deviate conduct in Cause 1033 in exchange for the State dismissing Cause 1937. The trial court held a change of plea hearing in Cause 1033 on September 21, 2015, at which time Connor filed a Waiver of Rights, Withdrawal of Plea of Not Guilty and Plea of Guilty. The trial court accepted the plea of guilty, entered judgment of conviction, ordered a pre-sentence investigation report to be prepared, and scheduled a sentencing hearing.

[5] Connor had one prior contact with the juvenile court system, in late 2014, when he was alleged to have committed two acts of conversion, Class A misdemeanors if committed by an adult, and leaving home without permission. He was remanded to a shelter before being released approximately six weeks later to his parents. He was given a 120–day suspended detention and placed on probation with the requirement that he complete a psychological evaluation and follow up as recommended. He was on probation when the current charge was filed. The pre-sentence investigation report noted that Connor's overall risk assessment score indicated he was a low to moderate risk in most areas but a high risk with regard to his criminal attitudes and behavior patterns and was therefore at an overall high risk category to reoffend.

[6] At the sentencing hearing on October 20, 2015, Connor spoke on his own behalf, and both his father and J.C. gave statements. The trial court sentenced Connor to fourteen years in the DOC with four years suspended to probation:

This is a very difficult case ... [a]nd it is difficult on everybody involved, but the Court does agree with the State's contention that there is a balancing act to try and accomplish here today in formatting an appropriate sentence. And that is the mental health treatment and, and rehabilitating treatment for the defendant, which is important. And the safety of the victim in this case, which is very important and the safety of the rest of the community.... The Court is not insensitive to the, to the fact that you have had some, had some rough times in your life, especially at the beginning of your life ... but I would like to say that in this Court's mind does not in any way justify the actions that you did.... So we start with the advisory term of ten years and then the Court weighs aggravators and mitigators.... In this case the Court finds the following aggravators. The defendant does have a history of criminal delinquent behavior. The, yes there is not an extensive criminal history there, but the Court does note that there were more than, though you've plead to one offense there were [sic] more than one offense that occurred. This is something that occurred over a period of time. The Court also finds as an aggravator that the harm, injury or loss or damage suffered by the victim of the offense was significant and greater than the elements necessary to approve [sic] the commission of the offense. The Court will take the defendant's mental health and find that as a slight mitigator ... that those issues are present.... The Court ... notes that the Indiana Risk Assessment Tool, shows that the defendant, as it stands today has a high risk to re-offend. So the Court does, doesn't find that as an aggravator, but the Court does note that for the record. The Court considers the balance of aggravating and mitigating factors to be that the aggravators outweigh the mitigators.

Transcript at 22–25. Connor now appeals his sentence.

Discussion and Decision

I. Standard of Review

[7] Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, sections 4

and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences. Trainor v. State, 950 N.E.2d 352, 355 (Ind.Ct.App.2011), trans. denied. Indiana Appellate Rule 7(B) implements that authority and provides, “The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The defendant bears the burden of persuading this court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006). Whether we regard a sentence as inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). Finally, we note the principal role of appellate review is to “leaven the outliers,” not achieve the perceived “correct” result in each case. Id. at 1225.

II. Inappropriate Sentence

A. Waiver

[8] We address first the State's contention that Connor has waived review of his sentence because he did not make a specific argument that the nature of his offense makes his sentence inappropriate, citing Anderson v. State, 989 N.E.2d 823 (Ind.Ct.App.2013)

, trans. denied. See Brief of Appellee at 9–10. Anderson does state that “[a]n appellant bears the burden of showing both prongs of the inquiry favor revision of her sentence [,]” citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006). Our reading of Childress finds no such statement, however, just a simple declaration that “a defendant must persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review.” 848 N.E.2d at 1080 ; see, e.g.,

Johnson v. State, 986 N.E.2d 852, 856 (Ind.Ct.App.2013) (citing Childress for the proposition that “[t]he appellant bears the burden of demonstrating his sentence is inappropriate”).

[9] In fact, our courts have frequently treated the two prongs as separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate. See, e.g., Eckelbarger v. State, 51 N.E.3d 169, 170–71 (Ind.2016)

(revising defendant's sentence from thirty-two years to sixteen years upon finding the nature of his offenses—drug offenses facilitated by a State informant—did not warrant consecutive sentences, without also discussing whether his character warranted revision); Isom v. State, 31 N.E.3d 469, 494 (Ind.2015) (noting “[t]he character of the offender, rather than the nature of the offense, presents [defendant's] strongest support for revision[,]” but ultimately declining to revise the sentence because the nature of the offenses “far outweigh his otherwise favorable character”), cert. denied, ––– U.S. ––––, 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016) ; Rice v. State, 6 N.E.3d 940, 947 (Ind.2014) (stating, in declining to revise defendant's sentence, “[w]e are thus not convinced that eitherthe nature of the offense or the character of the offender warrants a revision”) (emphasis added); Cardwell, 895 N.E.2d at 1226

(revising defendant's sentence without considering the nature of the defendant's character because “the record contains a number of inconclusive factors on which the trial court made no findings”); Schaaf v. State, 54 N.E.3d 1041, 1044 (Ind.Ct.App.2016) (revising a sentence upon finding that although the defendant's criminal history was significant and would make a below-advisory sentence too lenient, the nature of his “relatively minor” offenses rendered his above-advisory sentences too harsh); Norris v. State, 27 N.E.3d 333, 336 (Ind.Ct.App.2015) (acknowledging defendant's criminal history but revising sentence as inappropriate due to “the relatively innocuous nature of this offense”); Williams v. State, 891 N.E.2d 621, 633–35 (Ind.Ct.App.2008) (revising defendant's sentence on the basis of the nature of his offense even though defendant did not make an argument regarding his sentence in light of his character); Douglas v. State, 878 N.E.2d 873, 881 (Ind.Ct.App.2007) (revising defendant's sentence “[a]fter due consideration of [his] minimal criminal history, probation violations, and guilty plea,”...