MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Nov 17 2016, 8:41 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
William T. Myers                                        Gregory F. Zoeller
Grant County Public Defender                            Attorney General of Indiana
Marion, Indiana
                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jesse Larry Dean Clem,                                  November 17, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A02-1604-CR-915
        v.                                              Appeal from the Grant Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark Spitzer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        27C01-1503-FA-3



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016   Page 1 of 8
                                             Case Summary
[1]   Jesse Larry Dean Clem (“Clem”) was convicted of two counts of Child

      Molesting, as Class A felonies,1 and was adjudicated to be a Habitual Offender.2

      He was sentenced to an aggregate term of imprisonment of seventy-five years,

      and now appeals.


[2]   We remand for correction of the sentencing order.



                                                        Issue
[3]   Clem raises a single issue for our review: whether the trial court abused its

      discretion in determining aggravating and mitigating factors, and in its

      weighing thereof.



                              Facts and Procedural History
[4]   From 2003 to 2011, Clem lived off-and-on with his sometime-girlfriend, J.A., in

      a home in Marion. J.A. had a daughter from a prior relationship, A.A., who

      was born in 2000 and lived with J.A. until June 2011. J.A. and Clem produced

      three children, A.C., D.C., and B.C. These three children also lived with J.A.




      1
        Ind. Code § 35-42-4-3(a). Clem’s offenses were committed prior to the effective date of substantial revisions
      to Indiana’s criminal statutes. We refer throughout to the statutory provisions applicable to Clem’s offenses.
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016             Page 2 of 8
[5]   Clem had a long history of alcohol abuse. During much of the time he lived

      with J.A. and the children through June 2011, Clem was unemployed and

      stayed home while J.A. worked. During the day, Clem would routinely

      consume alcohol to the point of intoxication. Alcohol consumption caused

      Clem to become angry, and Clem would routinely become verbally and

      physically aggressive toward A.A.


[6]   During May and June of 2011, as the weather became hot, Clem would instruct

      A.A. not to wear clothing except for underwear and a bra. A.A. complied

      because she was afraid of Clem harming her. On several occasions, Clem had

      A.A. lie down in bed with him. He would then put his hands in her underwear

      and penetrate her genitalia with his finger.


[7]   At some point in June 2011, Clem and J.A. had a disagreement, and Clem left

      the home. Around this time, A.A. left the home to live with her grandmother,

      where she remained after J.A. was arrested and incarcerated.


[8]   In July 2014, C.G., A.A.’s aunt, had come to visit some of A.A.’s relatives.

      Based upon a conversation she had with A.C., C.G. asked A.A. questions that

      resulted in C.G. calling police. A police investigation ensued, and a warrant

      was issued for Clem’s arrest.


[9]   On March 27, 2015, the State charged Clem with two counts of Child

      Molesting, as Class A felonies. On February 8, 2016, the State alleged Clem to

      be a habitual offender. A bifurcated jury trial was conducted from February 22

      to February 24, 2016, at the conclusion of which the jury found Clem guilty as

      Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016   Page 3 of 8
       charged of the two counts of Child Molesting. A separate trial on the habitual

       offender allegation was conducted, at the conclusion of which the jury found

       Clem to be a habitual offender.


[10]   On April 1, 2016, a sentencing hearing was conducted. During the hearing, the

       trial court entered judgments of conviction against Clem and adjudicated him a

       habitual offender. At the close of the hearing, the court sentenced Clem to forty

       five years imprisonment for each of the two counts of Child Molesting, to be

       served concurrently, and with five years suspended to probation. The court

       ordered the sentence enhanced by thirty years as a result of the habitual

       offender adjudication.


[11]   This appeal ensued.



                                 Discussion and Decision
[12]   On appeal, Clem challenges only the trial court’s sentencing decision, arguing

       that the trial court abused its discretion “when it failed to properly balance and

       identify mitigating and aggravating factors.” (Appellant’s Br. at 9.)


[13]   The Indiana Supreme Court’s decision in Anglemyer v. State established the

       process by which our state’s appellate courts review sentencing challenges:


               1. The trial court must enter a statement including reasonably
               detailed reasons or circumstances for imposing a particular
               sentence.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016   Page 4 of 8
                2. The reasons given, and the omission of reasons arguably
                supported by the record, are reviewable on appeal for abuse of
                discretion.


                3. The relative weight or value assignable to reasons properly
                found or those which should have been found is not subject to
                review for abuse.


                4. Appellate review of the merits of a sentence may be sought on
                the grounds outlined in Appellate Rule 7(B).


       Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. In light of the Anglemyer Court’s holding, we do not address the portion of

       Clem’s argument that challenges the trial court’s weighing of sentencing

       factors.3


[14]   Clem’s remaining issue on appeal challenges the trial court’s finding of

       aggravating and mitigating factors. “So long as the sentence is within the

       statutory range, it is subject to review only for abuse of discretion.” Id. A trial

       court abuses its discretion if its sentencing 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. In sentencing a




       3
         We note here that Clem’s brief relies in part on Patterson v. State, 846 N.E.2d 723 (Ind. Ct. App. 2006),
       which sets forth the “manifest abuse of discretion” standard for reviewing the weighing of sentencing factors.
       We remind counsel that Anglemyer’s standards for appellate review are now nearly a decade old. The prior
       standard does not apply here, and should not have been used. See Marcus v. State, 27 N.E.3d 1134, 1135-36
       (Ind. Ct. App. 2015) (striking an appellate brief when counsel used pre-Anglemyer standards after repeated
       admonition not to do so); also In re Schlesinger, 53 N.E.3d 417-18 (Ind. 2016) (imposing attorney discipline for
       repeated use of pre-Anglemyer standards after multiple warnings from this Court).

       Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016              Page 5 of 8
       defendant, the trial court must enter “a sentencing statement that includes a

       reasonably detailed recitation of its reasons for imposing a particular sentence.”

       Id. at 491. When a defendant argues on appeal that the trial court failed to

       identify or find a mitigating factor, the defendant must establish that the

       mitigating evidence is both significant and clearly supported by the record. Id.

       at 493. However, the trial court is not obligated to explain why it did not find a

       particular circumstance to be significantly mitigating. Sherwood v. State, 749

       N.E.2d 36, 38 (Ind. 2001). Even when a trial court has abused its sentencing

       discretion, however, we will remand “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.


[15]   Clem contends that the trial court abused its discretion when it rejected as a

       mitigating factor at sentencing his long history of substance abuse. A review of

       Clem’s criminal history reveals that he has multiple convictions directly related

       to his history of substance abuse, including a conviction for possession of

       marijuana and multiple convictions for public intoxication and operating a

       vehicle while intoxicated. As in Hape v. State, upon which Clem relies, Clem

       “misses the point” of the trial court’s decision not to find his history of

       substance abuse as a mitigating circumstance at sentencing. 903 N.E.2d 977,

       1002 (Ind. Ct. App. 2009). Like Hape, Clem “has been involved with the

       criminal justice system … and a number of his convictions and charges stem

       from substance abuse or possession.” Id. And while he provided evidence that

       he had previously engaged in rehabilitative efforts, he apparently failed benefit


       Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016   Page 6 of 8
       from those rehabilitation resources and admitted during the presentencing

       investigation that he has an alcohol problem and used marijuana regularly until

       2014. While a history of substance abuse can be a mitigating factor, the trial

       court was within its discretion in this case to find that Clem’s substance abuse

       history was not a mitigating factor at sentencing.


[16]   We address sua sponte, however, the use of the habitual offender enhancement

       in the trial court’s sentencing order. “[W]hen defendants are convicted of

       multiple offenses and found to be habitual offenders, trial courts must impose

       the resulting penalty enhancement upon only one of the convictions and must

       specify the conviction to be so enhanced.” McIntire v. State, 717 N.E.2d 96, 102

       (Ind. 1999). If the trial court does not do so, we must remand to correct the

       sentence as it regards the habitual offender status. Id. Because it is not readily

       apparent to which of the two convictions for Child Molesting the habitual

       offender enhancement should be attached, we remand this case to the trial court

       for the sole purpose of correcting the sentencing order.



                                              Conclusion
[17]   The trial court did not abuse its sentencing discretion when it did not find

       Clem’s substance abuse to be a mitigating factor. But because the trial court did

       not identify which of the two convictions for Child Molesting was to be

       enhanced by the habitual offender adjudication, we remand with instructions to

       correct that facet of the sentencing order



       Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016   Page 7 of 8
[18]   Remanded.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016   Page 8 of 8
