MEMORANDUM DECISION                                                               FILED
                                                                             May 13 2016, 8:18 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
regarded as precedent or cited before any                                        Court of Appeals
                                                                                   and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark I. Cox                                             Gregory F. Zoeller
The Mark I. Cox Law Office, LLC                         Attorney General of Indiana
Richmond, Indiana
                                                        Monika Prekopa
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James M. Lierl,                                         May 13, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        24A01-1509-CR-1406
        v.                                              Appeal from the Franklin Circuit
                                                        Court
State of Indiana,                                       The Honorable J. Steven Cox,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        24C01-1411-F4-1343



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 24A01-1509-CR-1406 | May 13, 2016              Page 1 of 6
[1]   James Lierl appeals his conviction for Child Molesting, a Level 4 Felony.1 Lierl

      argues that the ten-year sentence imposed by the trial court is inappropriate in

      light of the nature of the offense and his character. Finding that his sentence is

      not inappropriate, we affirm.



                                                    Facts
[2]   On the evening of August 9, 2014, Lierl went down to the basement of his

      Franklin County residence, where his ten-year-old granddaughter, S.B., who

      was visiting from Dallas, Texas, was sleeping. Lierl undressed S.B. and fondled

      her while her sister was sleeping in the same bed. After S.B. and her family

      returned to Dallas, she told her mother that Lierl had fondled her. Her mother

      contacted Dallas police, who interviewed S.B. and sent recordings of the

      interviews to the Indiana State Police.


[3]   On November 18, 2014, Lierl was charged with Level 4 felony child molesting,

      and on June 26, 2015, he pleaded guilty. On August 19, 2015, the trial court

      sentenced Lierl to ten years, with two years suspended. Lierl now appeals.



                                      Discussion and Decision
[4]   The sole argument that Lierl raises on appeal is that his sentence is

      inappropriate under Indiana Appellate Rule 7(B). Rule 7(B) states that this




      1
          Ind. Code § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 24A01-1509-CR-1406 | May 13, 2016   Page 2 of 6
      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.”


[5]   According to our Supreme Court, the principal role of appellate review under

      Rule 7(B) “should be to attempt to leaven the outliers . . . but not to achieve a

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

      (Ind. 2008). Furthermore, the decision of the trial court “should receive

      considerable deference.” Id. at 1222. The advisory sentence for a Level 4

      felony is six years, with a possible range of two to twelve years imprisonment.

      Indiana Code § 35-50-2-5.5. The trial court in this case chose to impose a

      sentence of ten years, with two years suspended.


[6]   While the nature of Lierl’s offense may not have been the worst of the worst,

      his sentence was not inappropriate under Rule 7(B). The victim was only ten

      years old when Lierl molested her, and Lierl violated the position of trust that

      he held as the victim’s grandfather. See Hamilton v. State, 955 N.E.2d 723, 727

      (Ind. 2011) (stating that a “harsher sentence is also more appropriate when the

      defendant has violated a position of trust that arises from a particularly close

      relationship between the defendant and the victim”).


[7]   Turning to Lierl’s character, we find no reason to reduce his sentence. Lierl

      argues that his sentence is inappropriate due to his involvement in the

      community. Tr. p. 115-17. However, his son, Andrew, testified that he had

      previously known that Lierl was fascinated with young girls between the ages of


      Court of Appeals of Indiana | Memorandum Decision 24A01-1509-CR-1406 | May 13, 2016   Page 3 of 6
      eight and twelve. Moreover, Andrew testified that he had also limited Lierl’s

      exposure to Andrew’s minor children after Lierl inappropriately tickled a friend

      of Andrew’s daughter. Tr. p. 133-36. In light of the nature of Lierl’s offense

      and his character, the sentence imposed by the trial court was not inappropriate

      under Rule 7(B).


[8]   The judgment of the trial court is affirmed.


      May, J., concurs, and Brown, J., dissents with separate opinion.




      Court of Appeals of Indiana | Memorandum Decision 24A01-1509-CR-1406 | May 13, 2016   Page 4 of 6
                                                IN THE
          COURT OF APPEALS OF INDIANA

      James M. Lierl,                                          Court of Appeals Cause No.
                                                               24A01-1509-CR-1406
      Appellant-Defendant,

              v.

      State of Indiana,
      Appellee-Plaintiff.




      Brown, Judge, dissenting.


[9]   I respectfully dissent as to the majority’s determination that Lierl’s sentence,

      while not the maximum, is not inappropriate. The severity of Lierl’s offense is

      accounted for in its level 4 felony classification, for which the legislature has

      determined the advisory sentence to be six years. While Lierl violated his

      position of trust to commit the offense and the victim suffers from emotional

      trauma, this was a single occurrence involving a single victim. Moreover, Lierl

      pleaded guilty to the offense, and it did not involve drugs, threats, alcohol, or

      the use of violence, and it did not result in any physical injuries. (Appellant’s

      App. at 5, 41) The presentence investigation report (“PSI”) shows that Lierl
      Court of Appeals of Indiana | Memorandum Decision 24A01-1509-CR-1406 | May 13, 2016   Page 5 of 6
       has no criminal history and that he was actively involved in his community

       through a wide range of civic associations. (Appellant’s Confidential App. at

       66-67, 69) The PSI shows that the Indiana Risk Assessment System places him

       in the low risk to reoffend category. (Appellant’s Confidential App. at 68)


[10]   Based upon the foregoing, I would reverse and remand with instructions to

       impose a sentence of six years with two years suspended to supervised

       probation.




       Court of Appeals of Indiana | Memorandum Decision 24A01-1509-CR-1406 | May 13, 2016   Page 6 of 6
