MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jul 27 2017, 8:46 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
Katherine S. Brown                                       Curtis T. Hill, Jr.
Brown & Somheil                                          Attorney General of Indiana
Brazil, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shannon L. Pilant,                                       July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         28A01-1612-CR-2884
        v.                                               Appeal from the Greene Superior
                                                         Court
State of Indiana,                                        The Honorable Dena A. Martin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         28D01-1602-F4-1



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017            Page 1 of 10
                                             Case Summary
[1]   Shannon Pilant appeals his sentence for two convictions of Level 4 felony

      sexual misconduct with a minor and two convictions of Level 5 felony child

      seduction. We affirm.


                                                     Issues
[2]   Pilant raises two issues, which we restate as:


                     I.        whether the trial court abused its discretion
                               when it sentenced him; and

                   II.         whether his sentence is inappropriate in light
                               of the nature of the offenses and the character
                               of the offender.


                                                     Facts
[3]   In February 2016, the State charged Pilant, who was born in 1976, with six

      counts of Level 4 felony sexual misconduct with a minor for his sexual contact

      with S.M., who was fifteen years old at the time. The State also charged Pilant

      with two counts of Level 5 felony child seduction for his sexual contact with

      J.W., who was sixteen years old at the time. J.W.’s mother had left her in

      Pilant’s care, and she resided with Pilant. S.M. was J.W.’s friend, and she

      often spent weekends with J.W. at Pilant’s house.


[4]   Pilant pled guilty to two counts of Level 4 felony sexual misconduct with a

      minor and two counts of Level 5 felony child seduction. The plea agreement

      provided that the sentences for the Level 4 felony convictions would be


      Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017   Page 2 of 10
      concurrent, the sentences for the Level 5 felony convictions would be

      concurrent, and the sentences for the Level 5 felony convictions would be

      consecutive to the sentences for the Level 4 felony convictions. Under the plea

      agreement, the maximum possible sentence was eighteen years.


[5]   At the sentencing hearing, the trial court discussed several mitigating

      circumstances: (1) Pilant’s acceptance of responsibility and guilty plea; (2) his

      limited criminal history; (3) his mental health; and (4) the effect on his family of

      his incarceration. The trial court also found two aggravating circumstances: (1)

      the nature and circumstances of the offense; and (2) Pilant had care, custody,

      and control over S.M. In the written sentencing order, the trial court stated:

              7.       In determining the appropriate sentence the court
                       considered the following aggravating circumstances:


                       a)      The circumstances of this offense and that the
                               injury, loss or damage suffered by the victim of the
                               offenses was greater than the elements necessary to
                               prove the offense in that the defendant repeatedly
                               and over a period of time had the two young girls in
                               his home for entire weekends engaging in sexual
                               activities sometimes with both girls at the same
                               time.


                       b)      As to counts 1 and 2 the Defendant was in a
                               position having care, custody, or control of the
                               victim of the offense. The young girl would come to
                               his home to spend the weekend with her friend and
                               be in the care of the defendant for those weekends.



      Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017   Page 3 of 10
              8.       In determining the appropriate sentence the court
                       considered the following mitigating circumstances:


                       a)      The Defendant has mental health issues including
                               panic disorder, PTSD and anxiety.


                       b)      The Defendant has suffered a brain injury.


                       c)      The Defendant provides assistance to his family.


                       d)      The Defendant has admitted to the crimes and
                               accepted responsibility and he had been law abiding
                               for a number of years prior to this involvement with
                               the criminal justice system.


      Appellant’s App. Vol. II pp. 90-91.


[6]   The trial court sentenced Pilant to concurrent eight-year sentences in the

      Department of Correction with one year suspended to probation on the Level 4

      felony convictions and concurrent four-year sentences with one year suspended

      to probation on the Level 5 felony convictions. The trial court ordered that the

      sentences for the Level 4 felony convictions be served consecutive to the

      sentences for the Level 5 felony convictions for an aggregate sentence of twelve

      years in the Department of Correction with two years suspended to probation.

      Pilant now appeals.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017   Page 4 of 10
                                                  Analysis
                                           I. Abuse of Discretion

[7]   Pilant argues that the trial court abused its discretion when it sentenced him.

      Sentencing decisions are 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. However, a trial court may be found to have abused its sentencing

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

      statement at all; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

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

      record and advanced for consideration; and (4) entering a sentencing statement

      in which the reasons given are improper as a matter of law. Id. at 490-91. The

      reasons or omission of reasons given for choosing a sentence are reviewable on

      appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

      i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.


[8]   Pilant first argues that the trial court abused its discretion by considering the

      victim’s injuries as an aggravator. Under Indiana Code Section 35-38-1-7.1(a),

      the trial court may consider the following in determining aggravating

      circumstances: “(1) The harm, injury, loss, or damage suffered by the victim of

      an offense was: (A) significant; and (B) greater than the elements necessary to

      prove the commission of the offense.” In its written order, the trial court found

      the following aggravator:



      Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017   Page 5 of 10
         The circumstances of this offense and that the injury, loss or
         damage suffered by the victim of the offenses was greater than
         the elements necessary to prove the offense in that the defendant
         repeatedly and over a period of time had the two young girls in
         his home for entire weekends engaging in sexual activities
         sometimes with both girls at the same time.


Appellant’s App. Vol. II p. 91. Pilant interprets this finding as the trial court

finding the victims suffered more harm than usually suffered by a victim in such

offense. We, however, interpret this statement as a finding that Pilant

victimized the girls repeatedly, many times more than evidenced by his four

convictions.1 These facts are part of the nature and circumstances of the

offense, which is a proper aggravating factor. See Bethea v. State, 983 N.E.2d

1134, 1145 (Ind. 2013) (holding that, where the defendant has pled guilty, the

trial court may consider the facts of dismissed charges in sentencing the

defendant unless the plea bargain specifically forecloses the possibility of using

enhancements from the underlying charges that were dismissed). The trial

court did not abuse its discretion by considering this aggravator.




1
  Pilant argues that he only victimized J.W. twice. However, the probable cause affidavit, which was
included in the presentence investigation report, discusses several incidents between J.W. and Pilant,
sometimes including S.M. When Pilant was asked whether he had any requested corrections or deletions to
make to the presentence report, his attorney made minor corrections, but none to the facts alleged in the
probable cause affidavit. Under the circumstances, we cannot say it would be erroneous to consider the
contents of the probable cause affidavit in evaluating Pilant’s sentence. See Sullivan v. State, 836 N.E.2d 1031,
1036–37 (Ind. Ct. App. 2005) (holding that where the defendant indicated there were no corrections to be
made to presentence report and did not object to introduction of probable cause affidavit at sentencing
hearing, the defendant effectively admitted to contents of report and affidavit).

Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017                 Page 6 of 10
[9]    Pilant also argues that the trial court improperly failed to identify significant

       mitigating circumstances. According to Pilant, the trial court failed to consider

       the fact that he “did not appreciate or believe that his conduct was causing

       harm to the victims; he believed that the conduct was mutual.” Appellant’s Br.

       p. 13. 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). A claim that the trial court failed to find a mitigating circumstance

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

       Although Pilant testified at the sentencing hearing that the conduct was mutual

       and that he did not think he was causing harm, he also testified that he knew

       his conduct was “wrong.” Tr. p. 59. Further, to the extent that Pilant argues

       that he has mental health issues that make him unable to make rational

       decisions, we note that the trial court considered Pilant’s mental health as a

       mitigator. We cannot say the lack of intended harm was significant or clearly

       supported by the record. The trial court did not abuse its discretion when it

       sentenced Pilant.


                                         II. Inappropriate Sentence

[10]   Pilant argues that his twelve-year sentence is inappropriate under Indiana

       Appellate Rule 7(B). 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

       offenses and the character of the offender. When considering whether a

       Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017   Page 7 of 10
       sentence is inappropriate, we need not be “extremely” deferential to a trial

       court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). Still, we must give due consideration to that decision. Id. We also

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. 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).


[11]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[12]   Pilant was sentenced for both Level 4 felonies and Level 5 felonies. The

       advisory sentence for a Level 4 felony is six years with a sentencing range of

       two to twelve years. Ind. Code § 35-50-2-5.5. The advisory sentence for a

       Level 5 felony is three years with a sentencing range of one to six years. I.C. §



       Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017   Page 8 of 10
       35-50-2-6. Consequently, the eight- and four-year sentences were slightly over

       the advisory sentences.


[13]   The nature of the offense is the Pilant repeatedly had sexual intercourse with

       fifteen-year-old S.M. and sixteen-year-old J.W. J.W.’s mother had left her in

       Pilant’s care, and S.M. was J.W.’s friend, who often spent weekends with J.W.

       Pilant testified that he “didn’t think [he] was giving any harm,” but he agreed

       that the girls were, in fact, harmed by his actions. Tr. p. 52. He testified that he

       knew his conduct was “wrong.” Id. at 59. Pilant also admitted that he had

       sexual intercourse with both S.M. and J.W. together. Pilant repeatedly took

       advantage of his position of trust with the girls.


[14]   As for Pilant’s character, his therapist testified at the sentencing hearing that he

       has been diagnosed with a panic disorder, anxiety, post-traumatic stress

       disorder, and memory issues associated with a severe head injury that occurred

       when he was seventeen years old. Pilant “has difficulty at time caring for

       himself and relies on others to assist him and has difficulty making his own

       decisions at times, very indecisive, and . . . relies on others to help him with

       that.” Id. at 28. Pilant’s father testified that Pilant helps him maintain property

       in Greene County and in Tennessee and that he assists his grandmother with

       groceries and household activities. Pilant is unemployed, and his family assists

       him with housing and financial needs. Pilant also testified that he has been

       diagnosed with schizophrenia.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1612-CR-2884| July 27, 2017   Page 9 of 10
[15]   Pilant has a minimal criminal history. As a juvenile, Pilant successfully

       completed a diversion contract for committing an act that would have been

       Class A misdemeanor resisting law enforcement if committed by an adult.

       Pilant was also adjudicated delinquent for Class C felony burglary and Class D

       felony theft. As an adult, he was charged in 2007 with two counts of Class C

       felony child molesting, but the charges were later dismissed.


[16]   We acknowledge Pilant’s mental health issues and minimal criminal history.

       However, Pilant repeatedly had sexual intercourse with a fifteen-year-old girl

       and a sixteen-year old girl. The sixteen-year-old girl was living with Pilant after

       her mother left her with him, and the fifteen-year-old girl often visited the other

       girl at Pilant’s residence. The twelve-year sentence imposed here is far below

       the maximum sentence allowed by the plea agreement. Given Pilant’s actions

       and abuse of his position of trust, we cannot say that the twelve-year sentence

       imposed by the trial court is inappropriate.


                                                 Conclusion
[17]   The trial court did not abuse its discretion when it sentenced Pilant, and his

       twelve-year sentence is not inappropriate. We affirm.


[18]   Affirmed.


       Baker, J., and Crone, J., concur.




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