      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                              FILED
      regarded as precedent or cited before any                                    Feb 19 2020, 10:33 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
      Brian A. Karle                                           Curtis T. Hill, Jr.
      Ball Eggleston, PC                                       Attorney General of Indiana
      Lafayette, Indiana
                                                               Lauren A. Jacobsen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Nathan A. Thompson,                                      February 19, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-845
              v.                                               Appeal from the Clinton Circuit
                                                               Court
      State of Indiana,                                        The Honorable Bradley K. Mohler,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               12C01-1704-F4-416



      Mathias, Judge.


[1]   Nathan Thompson (“Thompson”) pleaded guilty in Clinton Circuit Court to

      Class C felony misconduct with a minor, Class D felony sexual misconduct


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020                      Page 1 of 8
      with a minor, and Level 5 felony child solicitation. Thompson was ordered to

      serve an aggregate sentence of thirteen years, with two years suspended to

      probation. Thompson appeals his sentence and claims that the trial court relied

      on improper aggravating circumstances. The State argues that Thompson

      waived his right to appeal his sentence.


[2]   Concluding that Thompson waived his right to appeal his sentence, we affirm.


                                 Facts and Procedural History
[3]   On April 25, 2017, the State charged Thompson with two counts of Level 4

      felony child molesting. The victim of those offenses was twelve-year old E.M.

      Thompson was E.M.’s stepfather. In the summer of 2016, E.M. was sleeping

      but woke up when she felt Thompson rubbing her leg. Thompson then reached

      under E.M.’s clothing and repeatedly touched her breasts and vagina. He also

      took E.M.’s hand and forced her to touch his penis. E.M.’s mother was at work

      when Thompson molested her. The State later added a charge of Level 5 felony

      child solicitation alleging that Thompson knowingly or intentionally solicited

      E.M. “to engage in fondling or touching intended to arouse or satisfy the sexual

      desires of either E.M. or” Thompson. Appellant’s App. p. 65.


[4]   Thompson was also charged with Class C felony sexual misconduct with a

      minor. The victim of that offense was Thompson’s sister-in-law, fourteen-year-

      old A.T. While A.T. was asleep, Thompson fondled A.T. by touching her

      breasts underneath her clothing and inserting his fingers into her vagina.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020   Page 2 of 8
[5]   In addition, Thompson was charged with two counts of Class D felony sexual

      misconduct with a minor and Class A misdemeanor contributing to the

      delinquency of a minor. The victim of those offenses was fifteen-year-old B.C.,

      who babysat Thompson’s and his wife’s younger children. Thompson gave

      B.C. narcotics and alcohol. He then touched her breasts and her vagina.


[6]   On December 21, 2018, approximately two and one-half weeks before his jury

      trial was scheduled to begin, Thompson entered into a plea agreement with the

      State. Thompson agreed to plead guilty to Level 5 felony child solicitation for

      the offenses committed against E.M., Class C felony sexual misconduct with a

      minor for the offenses committed against A.T., and Class D felony sexual

      misconduct with a minor for the offenses committed against B.C. In exchange

      for his guilty plea, the remaining charges were dismissed.


[7]   The plea agreement left sentencing to the discretion of the trial court and

      provided that “the defendant waives his/her right to appeal this case.”

      Appellant’s App. p. 67. At the guilty plea hearing, the trial court asked

      Thompson if he understood that “by pleading guilty you’ll waive the right to

      appeal this case, to appeal any sentence and to seek appellate review of the

      sentence.” Supp. Tr. p. 5. Thompson stated that he understood those terms.

      Thompson also acknowledged that by pleading guilty he was giving up his right

      to appeal his conviction and sentence. Supp. Tr. pp. 7–8.


[8]   Thompson’s sentencing hearing was held on March 20, 2019. The State

      presented evidence of the victims’ suffering as a result of Thompson’s offenses.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020   Page 3 of 8
       A.T. and E.M. both suffer from depression and have engaged in self-harm. B.C.

       did not give a statement at the hearing.


[9]    With regard to aggravating circumstances, the trial court considered

       Thompson’s position of care, custody, or control over the victims, and that he

       was in a position of trust with his victims and violated that trust. The court also

       noted that Thompson was “high risk to re-offend” because of the nature of his

       offenses and his failure to complete his pre-sentence investigation packet. Tr. p.

       24. The trial court found that Thompson’s prior criminal history consisting of

       misdemeanor offenses involving operation of motor vehicles was an

       aggravating circumstance but declined to give this factor significant weight. Id.

       The court considered Thompson’s guilty plea to be a mitigating circumstance

       but also noted that he received a substantial benefit from pleading guilty.


[10]   The court found that the aggravating circumstances outweighed the mitigating

       circumstances and ordered Thompson to serve an aggregate sentence of thirteen

       years with two years suspended to probation. Specifically, he was ordered to

       serve consecutive terms of five years for Class C felony sexual misconduct with

       a minor, two years for Class D felony sexual misconduct with a minor, and six

       years with two years suspended to probation for Level 5 felony child

       solicitation. Thompson now appeals.


                                                    Waiver
[11]   The State argues that Thompson waived his right to appeal his sentence in his

       plea agreement. Thompson claims the waiver provision in his plea agreement is

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020   Page 4 of 8
       ambiguous and unenforceable. Thompson also argues that the State forfeited its

       claim that he waived the right to appeal his sentence by failing to object after

       Thompson initiated his appeal.


[12]   It is well settled that a defendant may waive the right to appellate review of his

       sentence as part of a written plea agreement. Creech v. State, 887 N.E.2d 73, 75

       (Ind. 2008). Here, Thompson’s plea agreement provided that “the defendant

       waives his/her right to appeal this case.”1 Appellant’s App. p. 67. The

       agreement does not explicitly state that Thompson was waiving his right to

       appeal his sentence. At his guilty plea hearing, the trial court twice advised

       Thompson that by pleading guilty, he was giving up his right to appeal his

       sentence. Supp. Tr. pp. 5, 7–8.


[13]   In support of his argument, Thompson cites to Haddock v. State, 112 N.E.3d 763

       (Ind. Ct. App. 2018), trans. denied. But in that case Haddock was an “eligible

       defendant” for purposes of pursuing a belated appeal because he claimed his

       sentence was illegal. Id. at 767; see also Lacey v. State, 124 N.E.3d 1253, 1255–56

       (Ind. Ct. App. 2019) (declining to find waiver where the defendant was

       challenging the legality of the habitual offender sentencing enhancement).




       1
         We encourage the State to utilize language in plea agreements explicitly stating that a defendant waives his
       or her right to appeal his or her sentence. See e.g. Creech, 887 N.E.2d at 74 (holding that defendant waived
       right to appeal sentence where plea agreement provided, “I hereby waive my right to appeal my sentence so
       long as the Judge sentences me within the terms of my plea agreement.”); Starcher v. State, 66 N.E.3d 621,
       621 (Ind. Ct. App. 2016) (holding that defendant waived right to appeal sentence where plea agreement
       provided “As a condition of entering this plea agreement, defendant knowingly and voluntarily agrees to
       waive the right to appeal the sentence on the basis that it is erroneous or for any other reason so long as the
       Judge sentences him/her within the terms of this agreement.”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020                    Page 5 of 8
       Thompson has not challenged the legality of his sentence. He has only

       challenged the trial court’s sentencing discretion in its consideration of the

       aggravating circumstances. See Appellant’s Br. at 17-20. The remaining cases

       Thompson cites in his brief involve plea agreements that contained ambiguous

       and/or conflicting terms. See e.g. Williams v. State, 51 N.E.3d 1205, 1209 (Ind.

       Ct. App. 2016); Morris v. State, 985 N.E.2d 364, 366–67 (Ind. Ct. App. 2013).


[14]   In this case, the language of Thompson’s plea agreement unambiguously states

       that Thompson waived his “right to appeal this case.” Appellant’s App. p. 67.

       In addition, the transcript of the guilty plea hearing clearly establishes that

       Thompson understood he was waiving the right to appeal his sentence.


[15]   Contrary to Thompson’s claim, the State was not required to challenge

       Thompson’s right to appeal his sentence by objecting to Thompson’s notice of

       appeal and/or request for appellate counsel. The State has no notice of the

       precise issue appealed until the defendant/appellant files his or her appellant’s

       brief. As Thompson notes in his brief, in limited circumstances, a defendant

       may appeal a sentence even where the defendant waives his or her right in a

       plea agreement. See e.g., Lacey, 124 N.E.3d at 1255–56; Haddock, 112 N.E.3d at

       767 (declining to find waiver where the defendant was claiming an illegal

       sentence and the plea left the sentence open to the trial court’s discretion); see

       also Garza v. Idaho, 139 S.Ct. 738, 744 (2019) (explaining that “no appeal waiver

       serves as an absolute bar to all appellate claims”). For these reasons, the State

       did not forfeit its right to claim waiver when it argued waiver for the first time

       in its appellee’s brief.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020   Page 6 of 8
[16]   Waiver notwithstanding, we briefly address Thompson’s claim that the trial

       court abused its discretion in sentencing by considering his dated misdemeanor

       traffic offenses and that he was a high risk to re-offend as aggravating

       circumstances. See Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (stating

       that sentencing decision are left to the sound discretion of the trial court). For

       his offenses, the trial court could have imposed an aggregate sentence of up to

       seventeen years. See Ind. Code §§ 35-50-2-5, -6, -7. The court ordered

       Thompson to serve a less than maximum aggregate sentence of thirteen years

       with two year suspended to probation.


[17]   The trial court assigned minimal aggravating weight to Thompson’s prior

       misdemeanor offenses. The court also considered that Thompson was a high

       risk to re-offend because the IRAS assessment and the nature of the offenses. 2

       Even if we were to conclude that the court abused its discretion when it

       considered these aggravating circumstances, Thompson was in a position to

       provide for the care, custody, and/or control over the victims, and as such, he

       was in a position of trust that was violated by his criminal actions. He molested

       and engaged in sexual misconduct with his twelve-year-old stepdaughter,

       fourteen-year-old sister-in-law, and his children’s fifteen-year-old babysitter.

       Considering that Thompson received a significant benefit from his plea




       2
        Our supreme court has held that “the offender risk assessment scores do not in themselves constitute, and
       cannot serve as, an aggravating or mitigating circumstance.” Kayser v. State, 131 N.E.3d 717, 722 (Ind. Ct.
       App. 2019) (quoting J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010)). Here, the trial court considered both the
       probation department’s risk assessment and the nature of Thompson’s offenses to conclude that he was at a
       high risk to re-offend. Appellant’s App. p. 81; Tr. p. 24.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020                    Page 7 of 8
       agreement, the violation of trust aggravator alone more than supports the less-

       than-maximum sentence imposed.3


[18]   Thompson waived his right to appeal his sentence, and therefore, we affirm the

       judgment of the trial court.


[19]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       3
         If a trial court abuses its discretion by improperly considering an aggravating circumstance, we need to
       remand for resentencing only “if we cannot say with confidence that the trial court would have imposed the
       same sentence had it properly considered reasons that enjoy support in the record.” Anglemyer, 868 N.E.2d at
       491.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-845 | February 19, 2020                 Page 8 of 8
