MEMORANDUM DECISION                                                            FILED
                                                                         Apr 11 2018, 8:48 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                   CLERK
                                                                           Indiana Supreme Court
precedent or cited before any court except for the                            Court of Appeals
purpose of establishing the defense of res judicata,                            and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Ralph Lee McKinney,                                       April 11, 2018

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A05-1712-CR-2796
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court.
                                                          The Honorable Steven P. Meyer,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          79D02-1708-F4-30




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2796 | April 11, 2018              Page 1 of 7
                                             Statement of the Case
[1]   Ralph Lee McKinney appeals his sentence after pleading guilty to one count of
                                                1
      Level 4 felony child molesting and admitting to his status as an habitual
                   2
      offender , contending that his sentence is inappropriate in light of the nature of

      the offense and the character of the offender. We affirm.


                                                     Issue
[2]   The sole issue presented for our review is whether McKinney’s sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender.


                                   Facts and Procedural History
[3]   Although the factual basis established at the guilty plea hearing contains few

      details surrounding the circumstances of McKinney’s offense beyond those

      necessary to establish the statutory elements of the offense, the trial court at

      sentencing found the seriousness and circumstances of the offense to be an

      aggravating factor. The nature and circumstances of the crime as well as the

      manner in which the crime is committed is a valid aggravating factor. Bethea v.

      State, 983 N.E.2d 1134, 1145 (Ind. 2013). In Bethea, our supreme court held,

      “Unless forbidden by the terms of the plea agreement, the trial court [] may




      1
          Ind. Code § 35-42-4-3(b) (2015).
      2
          Ind. Code § 35-50-2-8 (2015).


      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2796 | April 11, 2018   Page 2 of 7
      consider all the evidence before it.” 983 N.E.2d at 1146. The probable cause

      affidavit and McKinney’s version of the offense were included in the

      presentence investigation report which was a part of the record before

      McKinney was sentenced. Because there was no plea agreement, there are no

      restrictions and McKinney was afforded the opportunity to correct or amend

      his presentence investigation report. For those reasons, we recite those

      additional facts.


[4]   McKinney, who was sixty years old at the time of the offense, was a high

      school graduate and had served in the United States Army. However, by the

      time of the offense at issue here, he was also a convicted sex offender. On the

      weekend of June 17, 2017, he asked his pastor if he could stay at her home

      because his home was being fumigated. The pastor agreed and allowed him to

      sleep in the common room. The pastor’s seven-year-old grandson was also

      staying with her that weekend.


[5]   After everyone went to their respective bedrooms to fall asleep, McKinney

      entered the room where the pastor’s grandson was sleeping. McKinney groped

      the grandson under his pajamas and fondled the boy’s penis. When McKinney

      noticed the light from a flashlight in the hallway, he ran quickly from the room,

      passing the pastor, who was using the flashlight, in the hallway. The pastor

      asked McKinney what was happening, but he did not respond to her.


[6]   When the pastor entered the room where her grandson had been sleeping, she

      asked him what had happened. Her grandson told her that McKinney had


      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2796 | April 11, 2018   Page 3 of 7
      touched his private areas. The pastor left the room, approached McKinney,

      and asked him what had happened. McKinney admitted to fondling the

      pastor’s grandson. The pastor banished McKinney from the home

      immediately, called the parents of her grandson, and contacted police officers.


[7]   The State charged McKinney on August 9, 2017. On October 17, 2017,

      McKinney pleaded guilty to the offense, also admitting that he had prior

      unrelated felony convictions for two counts of child molesting on September 29,

      1986, and arson on January 8, 1980.


                                   Discussion and Decision
[8]   McKinney now appeals raising the issue of the appropriateness of his sentence.

      He argues that his twenty-eight-year aggregate sentence is inappropriate and

      asks that his sentence be revised to an aggregate term of eighteen years.


[9]   The sentencing range for McKinney’s child molesting offense is a fixed term of

      imprisonment of between two and twelve years with the advisory sentence

      being six years. Ind. Code § 35-50-2-5.5 (2014). With respect to the habitual

      offender status, for a Level 4 felony offender such as McKinney, the trial court

      shall sentence the offender to an additional fixed term between six years and

      twenty years. Ind. Code § 35-50-2-8(i) (2015). The trial court sentenced

      McKinney to a fixed term of ten years for his conviction of child molesting,

      enhanced by eighteen years for his habitual offender adjudication. We

      acknowledge that the advisory sentence “is the starting point the Legislature has



      Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2796 | April 11, 2018   Page 4 of 7
       selected as an appropriate sentence for the crime committed.” Childress v. State,

       848 N.E.2d 1073, 1081 (Ind. 2006).

                                                                          3
[10]   We note as an initial matter that McKinney appears to argue that the trial

       court erred by imposing an habitual offender enhancement based on charges

       previously used to support an habitual offender enhancement to charges filed

       against him in 1986. We acknowledge our Supreme Court’s holding that,


               We have consistently emphasized the unique status of the
               habitual offender statute. This statute has historically provided
               for greater punishment than would ordinarily be imposed upon
               the substantive crime charged. The purpose of the statute is to
               more severely penalize those persons whom prior sanctions have
               failed to deter from committing felonies. Since the additional
               punishment is imposed for each new crime and not for crimes for
               which the defendant has already been convicted and punished,
               prior convictions used to establish the fact of habitual criminality
               at one trial can be used again after a subsequent felony
               conviction. There was no error in sentencing defendant on the
               habitual offender count.
       Williams v. State, 430 N.E.2d 759, 768 (Ind. 1982) (internal citations omitted).

       The trial court did not err here, especially considering McKinney’s admission to

       his habitual offender status.


[11]   As for the nature of the offense, we observe that McKinney’s pastor allowed

       him to sleep in her home in his time of need, while his home was being




       3
        McKinney requests a downward revision of his sentence to eighteen years. The maximum sentence for his
       current offense is twelve years. Therefore, McKinney seems to recognize that some enhancement is
       appropriate due to his habitual offender status to which he admitted at his guilty plea hearing.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2796 | April 11, 2018       Page 5 of 7
       fumigated. Among others, her seven-year-old grandson, was also sleeping in

       the safety of her home. Despite the charity offered to McKinney, he chose to

       use the opportunity to molest his pastor’s grandson. In pertinent part, the level

       of McKinney’s offense requires that the victim be under the age of fourteen.

       The pastor’s grandson was far younger than fourteen. “Crimes against children

       are particularly contemptible.” Walker v. State, 747 N.E.2d 536, 538 (Ind. 2001)

       (citing Singer v. State, 674 N.E.2d 11, 15 (Ind. Ct. App. 1996)).


[12]   As for the character of the offender, we acknowledge that he pleaded guilty

       without the benefit of a plea agreement and did so without an agreement

       regarding a sentencing cap. Furthermore, we recognize and commend

       McKinney for his military service following his graduation from high school.

       However, after his honorable discharge from the Army, he was convicted and

       sentenced for Class B felony arson in 1980. The presentence investigation

       report shows that McKinney’s probation for that offense was revoked and a

       sentence was imposed for that violation. He was later convicted of one count of

       Class C felony child molesting in 1984 and two counts of Class C felony child

       molesting in 1986 for which his sentence was enhanced by his status as an

       habitual offender. According to the presentence investigation report, he was

       discharged from the Department of Correction in 2005. His criminal history

       shows that McKinney has a continuing pattern of abusing children and his

       behavior has not been deterred by periods of incarceration.


[13]   We observe that the probation department recommended that McKinney serve

       thirty-two years in the Department of Correction. The trial court, however, did

       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2796 | April 11, 2018   Page 6 of 7
       not impose the maximum sentence for the offense or impose the most severe

       enhancement of the sentence due to McKinney’s habitual offender status. We

       find that in light of the nature of the offense and the character of the offender

       the sentence is not inappropriate.


                                                Conclusion
[14]   In light of the foregoing, we affirm the decision of the trial court.


[15]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1712-CR-2796 | April 11, 2018   Page 7 of 7
