MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                        Jul 03 2017, 9:01 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bryan K. Coulter                                         Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael L. Zackmire,                                     July 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         23A01-1701-CR-202
        v.                                               Appeal from the Fountain Circuit
                                                         Court
State of Indiana,                                        The Honorable Stephanie S.
Appellee-Plaintiff                                       Campbell, Judge
                                                         Trial Court Cause No.
                                                         23C01-1509-F3-407



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017       Page 1 of 10
[1]   Michael Zackmire pled guilty to two counts of Level 3 felony rape. The trial

      court sentenced Zackmire to nine years executed for each conviction and

      ordered the sentences to be served consecutively, for an aggregate sentence of

      eighteen years. Zackmire appeals, challenging the sentence imposed in two

      respects: 1) Zackmire contends that the trial court abused its sentencing

      discretion and 2) he claims that his sentence is inappropriate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On September 15, 2015, the State charged Zackmire with four counts of Level 3

      felony rape. The trial court held a combined plea and sentencing hearing on

      December 22, 2016. Pursuant to the terms of a plea agreement, Zackmire

      agreed to plead guilty to two counts of Level 3 felony rape in exchange for

      dismissal of the remaining charges. The plea agreement also provided that

      sentencing would be left to the trial court’s discretion. At the guilty plea

      hearing, Zackmire agreed with the factual basis for his convictions—that

      between the dates of August 1, 2015, and September 8, 2015, he had sexual

      intercourse and other sexual contact with J.S., a twenty-four-year-old female for

      whom Zackmire was co-guardian and who was mentally incapable of




      Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017   Page 2 of 10
      consenting to sexual intercourse or other sexual contact. 1 The trial court

      accepted Zackmire’s guilty plea.


[4]   During the sentencing portion of the hearing, the trial court noted that it

      considered the pre-sentence investigation report (PSI) and arguments of

      counsel. The PSI indicated that Zackmire was fifty-two years old when he

      committed the instant offenses. J.S. was Zackmire’s niece2 and Zackmire had

      guardianship over her for approximately a year and a half before he raped her.

      The PSI also indicated that Zackmire had no prior criminal history. In his

      statement of the offense for purposes of the PSI, Zackmire claimed that at the

      time he committed these offenses, he was under a lot of stress, drinking heavily,

      and having marital problems.


[5]   In pronouncing the sentence, the trial court made the following sentencing

      statement:

                 The Court finds as an aggravating circumstance that you were in
                 a position of trust over this young lady. That is considered
                 aggravating, not because it’s just simply a position of trust over
                 this young lady, you were her court appointed guardian to
                 protect her and you took advantage. You manipulated that
                 position as her caregiver for your own personal satisfaction. You
                 were in a position of care, custody and control over this young
                 lady. This factor is considered aggravating because the victim
                 had been placed in the home that you shared with the victim’s




      1
          The victim’s mental age is reportedly twelve years of age.
      2
          Zackmire was adopted as an infant and thus his niece is not a blood relative.


      Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017   Page 3 of 10
        co-guardian and you failed to protect her while the co-guardian
        was at work and away from the home. The nature of the crime is
        considered as aggravating because these events were not isolated.
        You demonstrated a pattern of abusive behavior over a several
        week period. The victim was a virgin prior to your acts and you
        took from her the beauty of what a loving, physical relationship
        could be. You caused her physical pain. You have created in
        her a general lack of trust and fear of men. The Court finds as a
        mitigating factor your remorse. Factor is considered mitigating
        because you have apologized. You have acknowledge [sic] your
        guilt for your actions and did not put the victim through the pain
        of testifying at trial. Your lack or prior criminal history is
        considered a mitigating factor. The fact that the crime was a
        result of circumstances unlikely to reoccur is a mitigating factor.
        That it may create an undue hardship on you is considered a
        mitigating factor. But the Court gets to balance mitigators
        against aggravators and in this case the Court does give weight to
        your expression of remorse and lack of prior criminal history,
        and it gives substantial weight to the aggravators.


Transcript of 12-22-16 at 17-19. The trial court then sentenced Zackmire to the

advisory sentence of nine years3 on each count and ordered the sentences to be

served consecutively, for an aggregate sentence of eighteen years executed. The

trial court then explained its reasons for ordering consecutive sentences:


        [T]he offenses were committed over a period of time. There were
        days between your offenses which allowed you time to consider
        the crimes you were committing and the impact those offenses
        could have on your victim. You stole from your victim her right




3
  See Ind. Code § 35-50-2-5 (“[a] person who commits a Level 3 felony (for a crime committed after June 30,
2014) shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory
sentence being nine (9) years”).

Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017              Page 4 of 10
              to determine who and when she would surrender her virginity to.
              You caused pain and physical injury to the victim. You took
              advantage of her [sic] position of trust and care of the victim.
              Your victim is disabled as defined by Indiana law and you knew
              what her disability was.


      Id. at 19. Zackmire now appeals.


                                          Discussion & Decision


                                           1. Abuse of Discretion


[6]   Sentencing decisions rest within the sound discretion of the trial court.

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

      218. “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. at 490 (quoting

      K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its

      sentencing discretion in a number of ways, including: (1) failing to enter a

      sentencing statement at all; (2) entering a sentencing statement that includes

      aggravating and mitigating factors that are unsupported by the record; (3)

      entering a sentencing statement that omits reasons that are clearly supported by

      the record; or (4) entering a sentencing statement that includes reasons that are

      improper as a matter of law. Id. at 490-91. Because trial courts are no longer

      obligated to weigh aggravating and mitigating factors when imposing a

      sentence, a trial court cannot be said to have abused its discretion in failing to

      properly weigh such factors. Id. at 491.


      Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017   Page 5 of 10
[7]   Zackmire first argues that the trial court abused its sentencing discretion in

      finding as separate aggravating factors that he was in a position of trust with the

      victim and that he was in a position of care, custody, and control. Zackmire

      claims that these aggravators are essentially the same and should have been

      considered as one aggravator, not two.4


[8]   Zackmire does not argue that the trial court’s considerations were improper, but

      rather, seems to suggest that the balancing and weighing of aggravators and

      mitigators is a product of comparing enumerated lists of aggravators and

      mitigators with the greatest weight given to the longest list. This is simply not

      the case. Here, the trial court carefully and thoughtfully discussed the

      aggravating and mitigating circumstances and articulated the weight and

      balancing of such factors in deciding what sentence to impose. We find no

      abuse of discretion in the trial court’s consideration of the fact that Zackmire

      was in a position of trust as a court appointed co-guardian of J.S. and that he

      also was in a position of care, custody, and control when he was solely

      responsible for J.S. while the co-guardian was at work.




      4
          In its written sentencing order, the trial court stated:

               (1) [Zackmire] was in a position of trust. This factor is considered as aggravating in that the
               victim was under his care as her court appointed guardian. [Zackmire] manipulated his position
               as her caregiver for his own personal satisfaction;
               (2) [Zackmire] was in a position of care, custody and control. This factor is considered as
               aggravating because the victim had been placed in the home he shared with the victim’s co-
               guardian and he failed to protect her while the co-guardian was at work.
      Appellant’s Appendix Vol. 3 at 46-47.

      Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017                 Page 6 of 10
[9]    Zackmire argues that the trial court abused its discretion in finding that the

       victim had been a virgin because such finding was “not fully supported by the

       record.” Appellant’s Brief at 9. As Zackmire notes, however, such fact is noted

       in the probable cause affidavit that was included in the pre-sentence

       investigation report and Zackmire did not object to inclusion of such

       information therein. There is thus evidence in the record to support the trial

       court’s finding in this regard.


[10]   Zackmire also argues that the trial court abused its discretion in ordering the

       sentences to run consecutively. As set out above, the trial court explained the

       reasoning behind its decision to impose consecutive sentences, specifically

       noting that the offenses were committed over a period of time and that

       Zackmire had time to consider the crimes he was committing and the impact

       they had on J.S. Zackmire claims that imposition of consecutive sentences

       requires more than this “single statement.” Appellant’s Brief at 10.


[11]   We disagree with Zackmire. Here, the trial court identified several aggravating

       factors, including the repeated nature of the offenses, that the victim suffered

       physical and emotional pain, that Zackmire abused a position of trust, and also

       that the victim was disabled. The trial court articulated its balancing of these

       factors with the identified mitigators. The trial court clearly identified several

       aggravating factors and provided more than a single statement in explaining its

       decision to impose consecutive sentences. The trial court did not abuse its

       discretion in ordering Zackmire’s advisory sentences to be served consecutively.



       Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017   Page 7 of 10
                                              2. Appropriateness


       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 a sentence imposed by the trial

       court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer,

       868 N.E.2d at 491). This appellate authority is implemented 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 finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Anglemyer, 868 N.E.2d at 491.

       Nevertheless, “we must and should exercise deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

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


[12]   Here, Zackmire pled guilty and received the advisory sentence of nine years for

       both offenses when he could have received up to sixteen years for each offense.

       The trial court ordered the sentences to be served consecutively. The starting

       point that the Legislature has selected as an appropriate sentence for a crime is

       the advisory sentence. Anglemyer, 868 N.E.2d at 494. Therefore, when the trial

       court imposes the advisory sentence, the defendant bears a heavy burden in

       Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017   Page 8 of 10
       persuading this court that the sentence is inappropriate. McKinney v. State, 873

       N.E.2d 630, 647 (Ind. Ct. App. 2007), trans. denied.


[13]   With regard to the character of the offender, Zackmire asserts that he has

       cooperated with authorities since the beginning of their investigation, that he

       has no criminal history, that he is remorseful, that his overall risk assessment

       places him in the low risk category to reoffend, and that he accepted

       responsibility by pleading guilty thereby saving his victim the pain of testifying

       at trial. He also points out that he owns a successful trucking company and that

       he voluntarily sought out counseling prior to sentencing. As did the trial court,

       we accept these factors as having some mitigating weight, but not as redeeming

       character traits in light of the nature of the offense.


[14]   The nature of the offense justifies the sentence imposed. Zackmire raped his

       mentally disabled niece, over whom he had a guardianship, approximately

       seven times in a period of a little more than a month. Zackmire admitted that

       he knew J.S. could not make adult decisions and that she had the mental

       capacity of a twelve-year-old. Moreover, after he committed his offenses, he

       tried to cover them up by warning J.S. not to tell anyone and making her

       shower after he raped her. In her victim impact statement, J.S. wrote that she

       cannot trust men and has been depressed. The nature of the offenses supports

       the trial court’s imposition of consecutive, advisory sentences for an aggregate

       sentence of eighteen years.


[15]   Judgment affirmed.


       Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017   Page 9 of 10
[16]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017   Page 10 of 10
