MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 03 2019, 9:04 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
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
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Randy James Dean,                                        December 3, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1371
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1810-F4-3784



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1371 | December 3, 2019                 Page 1 of 7
[1]   Randy James Dean appeals his sentence for Level 4 felony child molesting. 1

      He raises one issue on appeal, which is whether his eight-year sentence is

      inappropriate given the nature of his offense and his character. We affirm.



                                   Facts and Procedural History
[2]   In January 2016, Dean, his nine-year-old stepdaughter, R.F., and R.F.’s siblings

      were in a bedroom watching television. While R.F. was laying on the bed

      under a blanket, Dean took her hand, guided it into his pants, and had her

      touch his penis. He also reached into R.F.’s pants and touched her vagina.

      Dean stopped when R.F.’s siblings turned around to look at them. R.F. also

      saw Dean reach into her younger sister’s pants on the same day.


[3]   On October 19, 2018, the State charged Dean with two counts of Level 4 felony

      child molesting. Dean was arrested and incarcerated at the Vigo County Jail

      for approximately two months before he was transferred to Vigo County

      Community Corrections to participate in a pre-trial work release program. On

      March 28, 2019, Dean entered into a plea agreement whereby he agreed to

      plead guilty to one count of Level 4 felony child molesting on the condition that

      his sentence not exceed eight years.


[4]   On May 8, 2019, the trial court held a change of plea hearing. Dean pled guilty

      to one count of Level 4 felony child molesting, and the State dismissed the




      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1371 | December 3, 2019   Page 2 of 7
      other count. At the change of plea hearing, the victim read a letter to the judge.

      She spoke about how the incident upset her, how she thought the molestation

      was her fault, and that she was scared to tell anyone about what happened. She

      described Dean as “like a father to [her.]” (Tr. Vol. II at 11.)


[5]   At the hearing, Dean noted his lack of criminal history, his compliance with the

      terms of pre-trial work release, and his continued payment of child support. He

      read a letter to the court in which he professed to have learned a lot through his

      incarceration. He explained:


              It was as if my life stopped while the rest of the world continued
              to revolve. I lost most of my family and friend [sic]. . .While
              being incarcerated I have lost love [sic] ones and I have been
              unable to attended [sic] their funerals. I have missed out on
              birthdays and holidays.


      (Id. at 22.) Dean also read a short apology to the victim.


[6]   The trial court pronounced Dean’s sentence at a hearing on May 15, 2019. The

      trial court’s sentencing order states:


              The following aggravating factors are established: the victim was
              less than twelve (12) years of age, and at the age of nine (9) she
              was significantly younger than the element of the offense age of
              fourteen (14) when defendant preyed upon her; as the victim’s
              step-father, defendant had the trust, care, custody and control of
              the victim . . .

              There is evidence in mitigation in defendant’s lack of a criminal
              history. The court also finds in mitigation defendant’s
              acceptance of responsibility and his expression of remorse. The

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1371 | December 3, 2019   Page 3 of 7
              evidence does not support a finding in mitigation that
              imprisonment will result in an ‘undue hardship’ to defendant’s
              dependents. Defendant asserts in mitigation he is likely to
              respond affirmatively to probation or short term imprisonment
              based on his lack of violations while in work release, and that he
              has done well at his current employment. While some mitigation
              may be appropriate, defendant’s demeanor while testifying gave
              context to his words. A context that portrayed little in the way of
              improvement or progress, and more that he was just doing what
              was necessary not to violate.

      (App. Vol. II at 84.) The court also addressed Dean’s proposed mitigating

      circumstances – the crime was the result of circumstances unlikely to recur, and

      Dean’s character and attitude make it unlikely he will commit another offense.

      The court found Dean’s focus to be primarily on what he lost as a result of

      incarceration rather than the impact his actions had on the victim. The trial

      court imposed an eight-year sentence, with four years executed in the Indiana

      Department of Correction, two years executed on work release, and two years

      suspended to formal probation.



                                Discussion and Decision
[7]   We “may revise a sentence authorized by statute if, after due consideration of

      the trial court’s decision, [we find] the sentence is inappropriate in light of the

      nature of the offense and the character of the offender.” Ind. App. R. 7(B).

      Our role in reviewing a sentence pursuant to Appellate Rule 7(B) “should be to

      attempt to leaven the outliers, and identify some guiding principles for trial

      courts and those charged with improvement of the sentencing statutes, but not


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1371 | December 3, 2019   Page 4 of 7
      to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

      N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden of persuading

      this court that his or her sentence is inappropriate.” Kunberger v. State, 46

      N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is inappropriate

      ultimately turns on the culpability of the defendant, the severity of the crime,

      the damage done to others, and a myriad of other factors that come to light in a

      given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).


[8]   A Level 4 felony is punishable by a fixed term of imprisonment between two

      years and twelve years, with an advisory sentence of six years. Ind. Code § 35-

      50-2-5.5. Dean’s plea agreement called for a maximum sentence of eight years.

      Thus, his eight-year sentence is consistent with the statute and his plea

      agreement. While the plea agreement did not specify the manner in which

      Dean was to serve his sentence, the trial court did not impose a fully-executed

      sentence. The court allowed Dean to serve a portion of his sentence on work

      release and suspended two years of his sentence to probation. See Prewitt v.

      State, 878 N.E.2d 184, 188 (Ind. 2007) (“Probation is a matter of grace left to

      trial court discretion, not a right to which a criminal defendant is entitled.”).


[9]   Dean argues the nature of his offense is typical of a Level 4 felony child

      molestation conviction and does not justify a sentence above the advisory

      sentence. We disagree. While it is an element of Level 4 felony child molesting

      that the victim be under fourteen years old, the court may consider the age of

      the victim to be an aggravating circumstance when imposing sentence if the

      victim was less than twelve at the time of the offense. Ind. Code § 35-38-1-

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1371 | December 3, 2019   Page 5 of 7
       7.1(3). Dean’s victim was only nine years old. Further, another statutorily-

       available aggravating circumstance is that the offender “was in a position

       having care, custody, or control of the victim of the offense.” Ind. Code § 35-

       38-1-7.1(8). Dean was R.F.’s stepfather, and he took advantage of that position

       of trust to molest her. Dean’s act of guiding R.F.’s hand into his pants would

       have been sufficient to meet the elements for child molesting, but Dean also

       reached into R.F.’s pants. Also, Dean committed his crime while other

       children were in the bedroom, and he only stopped when the other children

       turned around and looked at him and R.F. See Garcia v. State, 936 N.E.2d 361,

       365 (Ind. Ct. App. 2010) (noting that defendant’s act of committing child

       molesting in the presence of a one-year-old was an aggravating circumstance),

       trans. denied. All these circumstances make Dean’s offense more egregious than

       the typical Level 4 felony child molestation.


[10]   Further, Dean argues his character does not require an enhanced sentence. He

       asserts he accepted responsibility for his actions by pleading guilty. However, a

       court may consider a defendant’s acceptance of responsibility not significant

       when the defendant receives a substantial benefit by pleading guilty. Sanchez v.

       State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). Dean received a benefit from

       pleading guilty because the State agreed to dismiss one count of Level 4 felony

       child molesting, and the plea agreement provided he would not receive the

       maximum possible sentence for his crime. Dean also notes his lack of criminal

       history, his expression of remorse, and his compliance with the terms of his pre-

       trial work release program. The trial court considered each of these factors in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1371 | December 3, 2019   Page 6 of 7
       sentencing Dean. We note the trial court’s observation that Dean’s demeanor

       while testifying “portrayed little in the way of improvement or progress, and

       more that he was just doing what was necessary not to violate.” (App. Vol. II

       at 84.) Also, Dean’s testimony at sentencing focused primarily on what

       incarceration had cost him rather than on his recognition of and regret for the

       harm his criminal actions caused. We therefore hold Dean’s sentence is not

       inappropriate given the nature of his offense or his character. See Stetler v. State,

       972 N.E.2d 404, 409 (Ind. Ct. App. 2012) (holding ninety-year aggregate

       sentence for multiple counts of Class A felony child molesting was not

       inappropriate given the nature of the offenses or character of the offender),

       trans. denied.



                                               Conclusion
[11]   The nature of Dean’s offense is appalling. He exploited his position of trust and

       abused his nine-year-old stepdaughter in the presence of her siblings.

       Additionally, Dean received a substantial benefit by pleading guilty to his

       crime, and his character does not otherwise indicate he deserves a lesser

       sentence than what he received. Consequently, we cannot say that Dean’s

       sentence is inappropriate, and we affirm the trial court.


[12]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1371 | December 3, 2019   Page 7 of 7
