Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                             Jul 26 2013, 8:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

THOMAS G. GODFREY                                  GREGORY F. ZOELLER
Anderson, Indiana                                  Attorney General of Indiana

                                                   ANGELA N. SANCHEZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SHANE E. MAXWELL,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 48A02-1212-CR-999
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable David A. Happe, Judge
                             Cause No. 48C01-1012-FA-873



                                         July 26, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BARTEAU, Senior Judge
                             STATEMENT OF THE CASE

       Shane Maxwell appeals his seven-year sentence for Class C felony child

molesting. We affirm.

                                         ISSUES

       Maxwell raises two issues on appeal: (1) whether the trial court abused its

discretion in sentencing him and (2) whether his sentence is inappropriate.

                        FACTS AND PROCEDURAL HISTORY

       In December 2010, the State charged Maxwell with two counts of Class A felony

child molesting for sexual intercourse and deviate sexual conduct with his girlfriend’s

daughter J.T., who at the time of the alleged conduct was under fourteen years of age.

       A jury was empaneled on October 9, 2012, and the presentation of evidence was

set to begin on October 17, 2012. Between those dates, Maxwell pleaded guilty to an

amended count of Class C felony child molesting, and the State dismissed the count

involving deviate sexual conduct. There was no written plea agreement, and Maxwell

understood that sentencing was left to the discretion of the court. However, the parties

orally agreed that the State would recommend home detention with GPS monitoring if

Maxwell presented evidence of his medical conditions as represented during plea

negotiations.

       At the guilty plea hearing, the State provided the following factual basis:

       [O]n or between November 2002 and December 1, 2006 in Madison
       County, State of Indiana, Shane Eugene Maxwell did with a child under
       fourteen (14) years of age to wit: [J.T.], date of birth December 11, 1992.
       Uh, fondling, touching of either the child or the person with the intent to
       arouse or satisfy the sexual . . . desires of the child or the older person.

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      More specifically the State would show that [J.T.] made a report with the
      police department indicating that the sexual event had occurred between her
      and the Defendant the best time that she could place on it, she knew it
      began sometime after her father died which was October 30, 2002 and she
      had moved out of the house by age fourteen (14). Uh, the Defendant was a
      father figure to her. Uhm, living with her mother from the time she was a
      small child. During that time period I believe, possibly when she was
      around . . . eleven (11) or twelve (12) years of age, there was an encounter
      in the bathroom at the house located at 315 West 5th Street here in
      Anderson, Madison County, Indiana, where there was some sexual
      touching between the Defendant and . . . the victim, [J.T.], where she was
      made to place her hand on his penis and masturbate the Defendant.

Tr. pp. 18-19. Maxwell confirmed the factual basis. The trial court accepted the plea and

entered judgment of conviction.

      At the sentencing hearing, J.T.’s paternal grandmother testified that J.T. had lived

with her since revealing the abuse to the family because J.T.’s mother accused her of

lying and sided with Maxwell. J.T.’s grandmother further stated that she and her husband

sought treatment for J.T. when she began talking about suicide and that Maxwell’s abuse

robbed J.T. of her childhood and caused her to become a bitter young adult.

      Maxwell testified about his physical and mental health issues to provide a basis for

his request for home detention with GPS monitoring.         He stated that he has back

problems from when he fell off a roof and injured discs in his spine and that he has

permanent nerve damage from surgery complications. He also presented evidence that he

has been diagnosed with multiple sclerosis, which he said has since traveled to his brain

and caused some loss of eyesight and short term memory loss. Maxwell further testified

that he has depression, bipolar disorder, and borderline schizophrenia. He stated he has

several doctors for his conditions, takes several expensive medications, and is on full


                                            3
disability. Maxwell informed the court that Jackson County was one of the limited places

in Indiana that offered home detention with GPS monitoring and that he and J.T.’s

mother had found a place to live in Jackson County and were ready to relocate.

      When imposing Maxwell’s sentence, the trial court gave a detailed sentencing

statement:

      Mr. Maxwell, we spent a lot of today’s hearing talking about your medical
      situation and MS can be a horrible disease, I understand. And I understand
      that it must be a terrible thing to have your life change for the worse by
      something that you can’t control. And I do feel sympathy for the situation
      that you’re in and the symptoms that you suffer from that. But at the same
      time . . . I can’t help but not miss . . . the parallel between the disease that
      you suffer from and the crime that you committed. The reason that we treat
      sexual offenses so seriously, especially sexual offenses against children, is
      that they’re life changing, and they have consequences, and mental and
      emotional scars that don’t go away. And maybe as you think about [t]his in
      the weeks and years to come, you’ll come to appreciate the parallel between
      what you’re suffering yourself and what you caused the victim of these
      offenses to suffer through. I think there is a parallel there, there is a
      comparison. The difference, of course, is that your condition is an
      unfortunate medical fact that sometimes happens just because of the way
      we’re made up as humans. And what happened to the victim here was a
      result of a choice that you made. And when there is such a horrible
      violation of a child the consequences have to be serious. And it’s true that
      nothing I can do here can really lessen or remove the pain that you’ve
      caused in that child, now adult’s life. But we have to impose a punishment
      in these cases that recognizes the severity of the violation that you caused.
      The sentencing process that the law requires me to go through requires me
      to look at the aggravating and mitigating factors that are present based on
      the record. I do find that there are aggravators. The criminal and
      delinquent behavior of the defendant in his past is the primary aggravator,
      and it is a powerful aggravator in this case given the defendant’s record as
      set forth in the P.S.I. I think that it is a separate aggravator that the
      defendant violated a position of trust. You had access to the victim here
      because of your relationship with the child’s mother. This isn’t like a
      situation where, uh, someone commits an offense against a child [who is] a
      stranger to them. You knew this child, you had access to her because of
      that relationship of trust, and her family members allowed you to be around
      that child because they trusted you, and you violated that. In terms of

                                             4
       mitigating factors there are a few present on the record. The defendant has
       expressed remorse at a very late date and, um, in relatively pale form.
       You’ve said you[’re] sorry and I accept that and I find that as a mitigator
       but I don’t entitle it to much weight given the circumstances. The fact that
       you do suffer from a disability, and the severe symptoms that you have
       from MS, I think is a factor that may make incarceration more difficult for
       you and I think that’s a mitigating factor that has to [be] considered. The
       fact that you plead[ed] guilty and accepted responsibility here is a mitigator
       that is present and I will find that as a mitigator. But again, I entitle that to
       very little weight given the circumstances. You pled guilty after the jury
       selection process had begun, in the middle of the trial really, and you did
       that to avoid greater charges that would have had a much, much, greater
       exposure for you in terms of sentencing. So given those circumstances I
       don’t find that your acceptance of responsibility and guilty plea are entitled
       to significant weight here, although they are mitigators. When I balance
       those aggravators against the mitigators I do find that the aggravators
       substantial[ly] outweigh the mitigators. In this circumstance, given your
       criminal history and the nature of this offense, I don’t find that in-home
       detention is an adequate consequence and I’m not gonna put you on in-
       home detention.

Id. at 56-59. Thus, the court identified two aggravators—(1) Maxwell’s criminal history

and (2) that he violated a position of trust—and three mitigators—(1) his remorse; (2) his

“medical disability,” Appellant’s App. p. 9 (sentencing order); and (3) his guilty plea and

acceptance of responsibility. Finding that the aggravators substantially outweighed the

mitigators, the court sentenced him to seven years executed in the Department of

Correction. Maxwell now appeals his sentence.

                             DISCUSSION AND DECISION

                               I. ABUSE OF DISCRETION

       Maxwell contends the trial court abused its discretion in sentencing him. Subject

to the review and revision power discussed below, sentencing decisions rest within the

sound discretion of the trial court and are reviewed on appeal only for an abuse of


                                              5
discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875

N.E.2d 218 (2007). An abuse of discretion occurs if the decision is clearly against the

logic and effect of the facts and circumstances before the court or the reasonable,

probable, and actual deductions to be drawn therefrom. Id. Among other ways, a trial

court abuses its discretion when it enters a sentencing statement that includes reasons that

are improper as a matter of law or when it enters a sentencing statement that omits

reasons that are clearly supported by the record and advanced for consideration. Id. at

490-91.

                                      A. Greater Offense

       First, Maxwell argues the court improperly found that he was guilty of the greater

offense of Class A felony child molesting as an aggravator. However, this was not an

aggravator. The only aggravators noted by the trial court were Maxwell’s criminal

history and the fact that he violated a position of trust.

       Maxwell nonetheless claims the following statements at sentencing show the court

surely increased his sentence based on its own supposed conclusion that he was guilty of

the greater offense:

   – J.T.’s grandmother’s testimony that J.T. told the family Maxwell had raped her.

   – The State’s comments that the delay before charges were filed caused evidentiary
     issues, that it was “disgusting” that J.T. showed more compassion toward Maxwell
     than he or J.T.’s mother had shown to her in the courtroom, and that anything less
     than the maximum of eight years “would be a travesty.” Tr. p. 54.

   – The court’s reference to J.T. as the “victim of these offenses” (plural), reference to
     the crime as “a horrible violation of a child,” and remark that Maxwell’s sentence
     must “recognize[ ] the severity of the violation that you caused.” Id. at 57.


                                               6
Maxwell’s assumption is mere speculation.          Simply because J.T.’s grandmother

recounted that J.T. said she was raped does not mean the court sentenced Maxwell as if

he was guilty of a Class A felony. Indeed, Maxwell’s seven-year sentence, one year

below the maximum for a Class C felony, belies this claim. As to the statements by the

State and the trial court, those comments merely reflected why the State agreed to the

plea, J.T.’s approval of both the plea to the lesser charge and the recommendation of

home detention with GPS monitoring, and the aggravating nature of the offense—that

Maxwell violated a position of trust by molesting his girlfriend’s young daughter.

       The trial court did not rely on an improper aggravator.

                                B. Physical Health Issues

       Second, while acknowledging the court identified his physical health issues as a

mitigator, Maxwell argues the court failed to find they were a substantial mitigator. This

claim fails for the plain fact that the relative weight of aggravating and mitigating

circumstances is not subject to review for abuse of discretion. Anglemyer, 868 N.E.2d at

491.

                                 C. Mental Health Issues

       Third, Maxwell argues the court failed to identify his mental health issues as a

mitigator. It is unclear whether the court’s reference to his “medical disability” as a

mitigator in the sentencing order refers to his mental health issues in addition to his

physical health issues. Appellant’s App. p. 9. Even if it does not, a trial court is not

obligated to accept a defendant’s claim as to what constitutes a mitigating circumstance.

Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). If a trial court does not find the

                                             7
existence of a mitigating factor after it has been argued by counsel, the court is not

obligated to explain why it has found that the factor does not exist. Anglemyer, 868

N.E.2d at 493.

       Maxwell nevertheless claims he is entitled to a new sentencing hearing because

the court was required to indicate in its sentencing order that it gave his mental health

evidence due consideration. See Appellant’s Br. pp. 18-19; Appellant’s Reply Br. pp. 7-

8. He cites several cases for support; however, they are clearly distinguishable in that

each involved defendants who had been found guilty but mentally ill. See, e.g., Smith v.

State, 770 N.E.2d 818, 823 (Ind. 2002). Moreover, Maxwell did not testify as to the

factors indicated in those cases: the extent of his inability to control his behavior due to

his mental health issues, his overall limitations on functioning due to his mental health

issues, the duration of his mental health issues, or the extent of any nexus between his

mental health issues and the commission of the crime. See id. Thus, the court would

have been unable to apply such an analysis even if it wanted to.

       We conclude that the trial court did not abuse its discretion in sentencing Maxwell.

                           II. INAPPROPRIATE SENTENCE

       Maxwell next contends the length of his sentence and particularly his placement in

the Department of Correction are inappropriate. 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

through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the Court

                                             8
finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing

Anglemyer, 868 N.E.2d at 491). The defendant has the burden of persuading us that his

sentence is inappropriate. Id.

       We first look to the statutory range established for the class of the offense.

Maxwell pleaded guilty to a Class C felony. The statutory range for a Class C felony is

between two and eight years, with the advisory sentence being four years. Ind. Code §

35-50-2-6 (2005).     Maxwell received a seven-year sentence to be served in the

Department of Correction.

       We next look to the nature of the offense and Maxwell’s character. As to the

nature of the offense, Maxwell abused his position of trust as a father figure to sexually

molest his girlfriend’s daughter when she was just eleven or twelve years old. J.T.’s

victim impact statement reflects that she has problems trusting people and suffers from

nightmares, depression, relationship problems, loss of sleep and appetite, and anger as a

result of Maxwell’s abuse. J.T.’s grandmother testified that the abuse had pushed J.T. to

thoughts of suicide and robbed her of her childhood.

       As to his character, Maxwell, who was thirty-eight years old at the time of

sentencing, has a history of delinquent and criminal activity. As a juvenile, he was

adjudicated a delinquent for attempted voluntary manslaughter, criminal conversion,

criminal mischief, and public intoxication.     As an adult, he has been convicted of

burglary, resisting law enforcement, battery, check fraud, check deception, and public



                                            9
intoxication. Maxwell has been given the benefit of probation several times in the past

but squandered those opportunities by repeatedly violating his probation.

      Maxwell nonetheless claims that his significant physical and mental health issues

render his sentence inappropriate. However, the record does not reveal any evidence

other than his own testimony that he will not be able to receive the care he needs at the

Department of Correction. In short, he has failed to persuade us that his sentence is

inappropriate.

                                    CONCLUSION

      We therefore affirm Maxwell’s sentence.

MATHIAS, J., and BROWN, J., concur.




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