MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 12 2019, 9:17 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Devon M. Sharpe                                         Curtis T. Hill, Jr.
Jenner & Pattison                                       Attorney General of Indiana
Madison, Indiana                                        Megan M. Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William M. Hardin,                                      November 12, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1203
        v.                                              Appeal from the Jefferson Circuit
                                                        Court
State of Indiana,                                       The Honorable Steven M. Fleece,
Appellee-Plaintiff.                                     Senior Judge
                                                        Trial Court Cause No.
                                                        39C01-1804-F4-370



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1203 | November 12, 2019              Page 1 of 7
[1]   William M. Hardin appeals his sentence for sexual misconduct with a minor as

      a level 5 felony. He raises one issue which is whether his sentence is

      inappropriate in light of the nature of the offense and his character. We affirm.


                                      Facts and Procedural History

[2]   On April 9, 2018, the State filed a probable cause affidavit in which Indiana

      State Police Officer Christopher Howell asserted that on December 9, 2017 he

      was advised of possible sexual misconduct with a minor; that A.D. was a

      fifteen-year-old girl who lived with her mother and stepfather, Hardin, who was

      born in 1974; and that he interviewed A.D. who told him that Hardin had been

      molesting her since August 2017. The affidavit alleged various sexual

      encounters almost daily from August through December 8, 2017, and included

      intercourse.


[3]   On April 9, 2018, the State charged Hardin with Count I, sexual misconduct

      with a minor as a level 4 felony, and Count II, sexual misconduct with a minor

      as a level 5 felony. Count II alleged that on or about or between August 1,

      2017, and December 8, 2017, Hardin performed or submitted to sexual

      intercourse or other sexual conduct with A.D., who was at least fourteen years

      old but less than sixteen years old. On April 10, 2019, Hardin and the State

      filed a plea agreement in which he agreed to plead guilty to Count II and the

      State agreed to dismiss Count I and cause number 39C01-1902-F6-235 (“Cause

      No. 235”). That same day, the court held a hearing.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1203 | November 12, 2019   Page 2 of 7
[4]   On April 16, 2018, the court entered an order releasing Hardin on his own

      recognizance due to serious health problems. In March 2019, the State filed a

      motion to revoke pretrial release, and the court granted the motion. 1


[5]   On April 30, 2019, the court held a sentencing hearing. Hardin gave the

      following statement:


               Uh – I know I’ve been a bad person who has went down the
               wrong road in life, and I’ve turned my life over to Jesus, and I
               plan to follow his – his roadway, God’s law – because I don’t see
               how you can go wrong with God’s law because my parents
               disgust me. I don’t want to go back down that route again, and if
               you could see fit to turn me loose I can almost guarantee you I
               wouldn’t – you’d never see me in here again. I just want to be
               out here following Jesus, be with my wife, take care of my kids
               and work, and I – I’m hoping everybody can forgive me for
               everything I’ve done. It caused pain and anguish and – and I’m
               sorry. I’m sorry for everything, but God’s with me now so I
               know I’m going down the right path, and I plan on staying there,
               and thank you.


      Transcript Volume II at 5. Upon questioning by the court, he indicated that his

      wife is A.D.’s mother and A.D. lived with her. The court stated that the

      presentence investigation report (“PSI”) indicated that it would be undesirable

      for him to reside in the same place with A.D. He replied:




      1
        The record does not contain a copy of the motion to revoke pretrial release. At the sentencing hearing, the
      prosecutor stated: “[I]n regard to the violation of pretrial release, that was a continuing offense unless Mr.
      Hardin has received a divorce from one of his two wives. At this point it’s still a continuing offense. He was
      out for an extended period of time, could have taken care of that in one way or another, did not. That’s why
      the motion to revoke his pretrial release was filed.” Transcript Volume II at 12.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1203 | November 12, 2019                  Page 3 of 7
              Right. I didn’t plan on that. I mean I could stay at my parents’
              house. They still see (inaudible) until A.D. decides that she’s
              going to go out on her own or whatever. I wouldn’t go anywhere
              near her, and I haven’t. But I – I can reside at my parents and
              still spend with [sic] my wife and my girls and take care of them
              at the same time like I have in the past.


      Id. at 6.


[6]   The prosecutor argued that Hardin should receive a sentence of five years in the

      Department of Correction (“DOC”) with no time suspended. The probation

      officer who prepared the PSI recommended that he be ordered to serve his

      entire sentence at the DOC. Defense counsel requested the advisory sentence

      of three years and “if there is to be a short term of imprisonment that the

      balance be on terms and conditions of probation.” Id. at 11.


[7]   The court found Hardin’s guilty plea as a mitigator but observed that he

      received the dismissal of the remaining count as well as “the other case alleging

      bigamy.” Id. at 14. In its order, the court also found the following mitigator:

      “The Defendant expressed remorse for his offense and professed his recent

      religious conversion would deter future misconduct.” Appellant’s Appendix

      Volume II at 42. During the sentencing hearing, the court stated: “With regard

      to the offense being unlikely to recur with regard to this particular victim A.D.,

      who I think is here with us today, I would certainly hope and expect that it

      would not recur there, but the attitude towards A.D. and the failure to

      understand the gross criminality and gross immorality of what you did to A.D.

      is something which is very troubling.” Transcript Volume II at 14. The court

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1203 | November 12, 2019   Page 4 of 7
      also stated: “It shouldn’t take a theologian or a degree in divinity to understand

      that [sexually molesting a child] is anathema, that that is forbidden not only by

      the law of the State of Indiana but by the moral law and the natural law, and

      you violated it, and you know what to say now, but I am not convinced that

      you wouldn’t be a danger to other children in the future.” Id. at 14-15. The

      court found the following aggravators: his criminal record; his position of care,

      custody, or control of A.D.; the offense was premeditated and consisted of a

      series of incidents; he recently violated a condition of pretrial release; and

      A.D.’s trauma. The court found that the aggravating circumstances

      outweighed the mitigating circumstances and sentenced him to four years

      executed at the DOC and one year as a direct placement to community

      corrections.


                                                  Discussion

[8]   The issue is whether Hardin’s sentence is inappropriate in light of the nature of

      the offense and his character. Hardin acknowledges that “[i]t is incontrovertible

      that the crime of sexual misconduct on a minor is a serious one, with

      sometimes lasting consequences on victims.” Appellant’s Brief at 9. He argues

      that a defendant’s health is a relevant fact in considering the character of the

      offender and asserts that he suffers from an impaired aorta valve. He points out

      that the PSI indicates that the Indiana Risk Assessment Tool places him in the

      low category to reoffend. He also asserts that he pled guilty, accepted

      responsibility, and expressed sincere remorse. The State argues that Hardin’s

      sexual abuse of A.D. was premeditated, horrific, and repeated, that he exploited

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1203 | November 12, 2019   Page 5 of 7
       a position of care, control, and authority over A.D., and that his decision to

       plead guilty was, at least partially, self-serving.


[9]    Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[10]   Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall

       be imprisoned for a fixed term of between one and six years with the advisory

       sentence being three years.


[11]   Our review of the nature of the offense reveals that Hardin committed sexual

       misconduct with his fifteen-year-old stepdaughter over a period of months. Our

       review of the character of the offender reveals that Hardin pled guilty to sexual

       misconduct with a minor as a level 5 felony and the State agreed to dismiss the

       charge of sexual misconduct with a minor as a level 4 felony as well as Cause

       No. 235 related to a bigamy charge. As an adult, Hardin pled guilty to driving

       while suspended as a class A misdemeanor in 1996; battery as a class A

       misdemeanor in 1998; operating a vehicle while intoxicated endangering a

       person and resisting law enforcement as class A misdemeanors in 2006, and

       operating while intoxicated as a class D felony in 2007. He was also convicted




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1203 | November 12, 2019   Page 6 of 7
       of operating a vehicle with a BAC of .08 or more but less than .15 as a class C

       misdemeanor in 2017.


[12]   After due consideration, we conclude that Hardin has not sustained his burden

       of establishing that his sentence of four years executed at the DOC and one year

       as a direct placement in community corrections is inappropriate.


[13]   For the foregoing reasons, we affirm Hardin’s sentence.


[14]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1203 | November 12, 2019   Page 7 of 7
