MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                        FILED
court except for the purpose of establishing                        Jun 22 2017, 6:19 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                          Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Lee Troy,                                         June 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         67A05-1611-CR-2553
        v.                                               Appeal from the Putnam Superior
                                                         Court
State of Indiana,                                        The Honorable Charles D. Bridges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         67D01-1608-F5-123



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017        Page 1 of 9
                                          Case Summary
[1]   Following a guilty plea, Donald Lee Troy (“Troy”) was convicted of Sexual

      Misconduct with a Minor, as a Level 5 felony,1 and sentenced to six years

      imprisonment, with five years executed and one year suspended to probation.

      Troy now appeals, challenging aspects of his sentence.


[2]   We affirm.



                                                    Issues
[3]   Troy presents the following expanded and restated issues:

                 I.       Whether the trial court abused its sentencing discretion;
                          and


                 II.      Whether his sentence is inappropriate.


                                Facts and Procedural History
[4]   On August 15, 2016, forty-nine-year-old Troy was charged with having sexual

      intercourse with A.B., who was over the age of fourteen and under the age of

      sixteen. Troy pleaded guilty to the offense pursuant to a plea agreement. A

      sentencing hearing was held on October 12, 2016, and the trial court imposed a

      sentence of six years, with one year suspended to probation.




      1
          Ind. Code § 35-42-4-9(a).


      Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017   Page 2 of 9
[5]   This appeal ensued.



                                 Discussion and Decision
                             Abuse of Sentencing Discretion
[6]   Troy argues that the trial court abused its sentencing discretion by improperly

      identifying certain aggravating factors.


[7]   Sentencing decisions are within the discretion of the trial court and are

      reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

      482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 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. In sentencing a defendant, the trial

      court must enter a sentencing statement that includes “reasonably detailed

      reasons or circumstances for imposing a particular sentence,” id. at 491, and

      Indiana Code section 35-38-1-7.1 provides a non-exhaustive list of potential

      aggravating or mitigating circumstances. “[O]nce the trial court has entered a

      sentencing statement, which may or may not include the existence of

      aggravating and mitigating factors, it may then ‘impose any sentence that

      is . . . authorized by statute; and . . . permissible under the Constitution of the

      State of Indiana.’” Id. (quoting I.C. § 35-38-1-7.1(d)).


[8]   One way the trial court abuses its sentencing discretion is when it “enter[s] a

      sentencing statement that explains reasons for imposing a sentence—including

      Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017   Page 3 of 9
       a finding of aggravating and mitigating factors if any—but the record does not

       support the reasons.” Id. at 490. The trial court also abuses its sentencing

       discretion when “the reasons given are improper as a matter of law.” Id. at 491.

       If the trial court has abused its sentencing discretion, we will remand for

       resentencing “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.” Id.


[9]    Troy contends that the trial court abused its sentencing discretion because it

       improperly “relied upon the probable cause affidavit not admitted as evidence

       during the sentencing hearing to find several aggravators not advanced by the

       State.” Appellant’s Br. at 10. In this respect, Troy challenges the following

       aggravators derived from the probable cause affidavit: (1) Troy was grooming

       other potential victims; (2) Troy encouraged A.B. to change her story; and (3)

       Troy asked A.B. to send him inappropriate pictures.


[10]   Troy did not object to use of the probable cause affidavit when the trial court

       orally sentenced him, and so Troy has waived this argument. See Brown v. State,

       929 N.E.2d 204, 207 (Ind. 2010) (noting that failure to raise a contemporaneous

       objection results in waiver of appellate review). Waiver notwithstanding, even

       if we were to conclude that the probable cause affidavit was not properly before

       the trial court, in light of other aggravating circumstances that the trial court

       properly identified—that Troy engaged in multiple sexual acts with A.B. over

       an extended time and that he shifted blame to A.B. by telling the probation



       Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017   Page 4 of 9
       department that she had flirted with him—we are confident that the trial court

       would have imposed the same sentence. See Anglemyer, 868 N.E.2d at 491.


[11]   Troy also contends that the trial court abused its discretion by “seem[ing] to

       have applied aggravating weight to the fact that A.B. will have to deal with this

       crime her whole life,” pointing out that “no emotional impacts upon A.B. were

       demonstrated by the record.” Appellant’s Br. at 13. Troy focuses on a moment

       in the trial court’s sentencing statement when it noted that Troy’s wife had been

       similarly victimized: “[Y]our poor wife, having gone through this herself, now

       she’s having to relive this . . . [s]he’s had to deal with this her whole life . . . [a]s

       will the victim in this case.” (Sent. Tr. at 64.) We do not think that the trial

       court, through this brief comment, found that the impact on A.B. was a distinct

       and separate aggravator. Indeed, as the State points out, the trial court did not

       use the language “aggravator” or “aggravating factor” as it had while reflecting

       on other circumstances. We thus conclude that the trial court did not abuse its

       discretion when it briefly acknowledged the testimony Troy’s wife had given.


[12]   Finally, Troy asserts that the trial court abused its discretion when it identified

       his criminal history as an aggravating factor. The identified criminal history

       includes two matters, both of which Troy self-reported: an arrest for a juvenile

       offense of possession of paraphernalia and a 2011 arrest for illegal taking of a

       wild animal. Both matters were dismissed, and the pre-sentence investigation

       lacks further detail about the circumstances of either arrest.




       Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017   Page 5 of 9
[13]   A record of arrests, without more, does not constitute “criminal history” for the

       purposes of sentence aggravation. Tunstill v. State, 568 N.E.2d 539, 545 (Ind.

       1991). Rather, “[t]he substance of [this] aggravator . . . is the fact that the

       defendant committed the other crime, not that he was arrested for it.” Id.

       Nonetheless, an arrest record “is relevant to the court’s assessment of the

       defendant’s character and the risk that he will commit another crime and is

       therefore properly considered by a court in determining [a] sentence.” Id.

       Indeed, the record might “reveal to the court that subsequent antisocial

       behavior on the part of the defendant has not been deterred even after having

       been subject to the police authority of the State and made aware of its oversight

       of the activities of its citizens.” Id.


[14]   Here, the trial court acknowledged that Troy had been arrested and not

       convicted. The trial court nevertheless determined that the arrests amounted to

       a criminal history, and identified that history as an aggravating circumstance.

       We conclude that the trial court abused its discretion to the extent that it relied

       on the bare self-reported arrests to identify criminal history as an aggravating

       circumstance. Nonetheless, we conclude that the error was harmless. See Ind.

       Trial Rule 61 (providing that no error or defect in an order is ground for

       disturbing the order “unless refusal to take such action appears to the court

       inconsistent with substantial justice”). Although the trial court should not have

       characterized Troy’s arrests as “criminal history,” the trial court could have

       properly relied on those arrests to make a character determination about Troy,

       and thereby properly aggravate his sentence. See I.C. § 35-38-1-7.1(c) (noting


       Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017   Page 6 of 9
       that trial court is not limited in “the matters . . . [it] may consider in

       determining the sentence”). We are ultimately confident that, had the trial

       court characterized Troy’s arrest record as indicative of an aggravating

       character attribute instead of as aggravating criminal history, the trial court

       would have reached the same sentence. See Anglemyer, 868 N.E.2d at 491.2


                                        Inappropriate Sentence
[15]   Troy asks that we exercise our authority to revise his sentence.3 Even when a

       trial court has not abused its sentencing discretion, we may independently

       review a sentence under Indiana Appellate Rule 7(B). Under this rule, we

       “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.” In conducting

       our review, we consider “the culpability of the defendant, the severity of the

       crime, the damage done to others, and myriad factors that come to light in a

       given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

       principal role of such review is to attempt to leaven the outliers, not achieve the

       perceived “correct” result in each case. Id. at 1225. The defendant bears the




       2
         Indeed, we note that the trial court—although it could have more artfully done so—appeared to express
       concern about Troy’s character given his previous interactions with law enforcement, despite characterizing
       the arrest record as criminal history: “I’m not sure, if maybe you’ve got it in your head now when you
       commit a crime that you just walk away like you did the other two. I don’t know.” (Sent. Tr. at 64.)
       3
         In the conclusion of his brief, Troy makes a brief request for a revision of his sentence. We treat Troy’s
       claim as properly raised, reminding counsel that inappropriate sentence and abuse of discretion arguments
       are to be separately analyzed. See Anglemyer, 868 N.E.2d at 491.

       Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017                Page 7 of 9
       burden of persuading us that his sentence is inappropriate. Whatley v. State, 928

       N.E.2d 202, 207-08 (Ind. 2010).


[16]   Regarding the nature of the offense, the advisory sentence “is the starting point

       the Legislature has selected as an appropriate sentence for the crime

       committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The

       sentencing range for a Level 5 felony is between one year and six years, with an

       advisory sentence of three years. I.C. § 35-50-2-6. Troy received the maximum

       sentence length of six years, with one year suspended to probation.


[17]   As to the nature of Troy’s offense, Troy engaged in sexual intercourse with a

       minor whom he employed. The intercourse, along with other sexual acts,

       occurred multiple times and took place at work. As to the character of the

       offender, Troy pleaded guilty, expressed remorse, and proactively attended

       counseling, which reflects well on Troy’s character. Troy also appears to be a

       supportive parent to his step-children and a helpful caregiver to his father.

       However, Troy decided to take advantage of a minor who worked for him, and

       he seemingly attempted to shift blame to the victim when he told the probation

       department that A.B. had flirted with him.


[18]   Troy presents no argument as to the nature of his offense or his character, and

       we are not persuaded that his sentence warrants revision.




       Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017   Page 8 of 9
                                               Conclusion
[19]   Troy has not directed us to reversible error in the trial court’s sentencing order,

       and the sentence is not inappropriate.


[20]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017   Page 9 of 9
