ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Mark K. Leeman                                                Gregory F. Zoeller
Cass County Public Defender                                   Attorney General of Indiana
Logansport, Indiana
                                                              Chandra K. Hein
                                                              Stephen R. Creason
                                                              Richard C. Webster
                                                              Deputy Attorneys General
                                                              Indianapolis, Indiana
______________________________________________________________________________

                                                                                     FILED
                                  In the                                       Sep 14 2016, 12:26 pm


                          Indiana Supreme Court                                      CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                              _________________________________                       and Tax Court



                                     No. 09S02-1609-CR-484

KYLE BESS,
                                                              Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                        Appellee (Plaintiff below).
                              _________________________________

                   Appeal from the Cass Superior Court, No. 09D02-1502-F5-14
                           The Honorable Richard A. Maughmer, Judge
                             _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 09A02-1512-CR-2311
                            _________________________________

                                        September 14, 2016

Per Curiam.

        Kyle Bess asked his 14-year-old niece to give him a lap dance, she declined, but Bess then

had her sit on his lap while he kissed her on the cheek and tickled her. Bess pleaded guilty to one

count of child solicitation as a Level 5 felony, which carried a sentencing range of one to six years,

with three years being the advisory sentence. The trial court found Bess’s guilty plea, lack of

criminal history, and the undue hardship incarceration would place on his family as mitigating
factors. It found as aggravating factors the fact that Bess blamed his niece for contributing to the

crime and that he violated a position of trust. The trial court sentenced Bess to the advisory

sentence—three years executed in the Department of Correction.

         Bess appealed his sentence. A Court of Appeals majority found his fully-executed sentence

inappropriate under Indiana Appellate Rule 7(B). The majority ordered that Bess be released from

incarceration and serve the remainder of the three-year sentence on supervised probation. Bess v.

State, No. 09A02-1512-CR-2311 (Ind. Ct. App. June 15, 2016). Judge Pyle dissented, believing

Bess’s advisory sentence not inappropriate. Id. at 7-9 (Pyle, J., dissenting). The State seeks

transfer.

         The authority granted by article 7, section 4 of the Indiana Constitution permitting appellate

review and revision of criminal sentences is implemented through Indiana Appellate Rule 7(B).

Under this rule and as interpreted by case law, appellate courts may revise sentences—after due

consideration of the trial court’s decision—if the sentence is found to be inappropriate in light of

the nature of the offense and the character of the offender. See Cardwell v. State, 895 N.E.2d

1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The principal

role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.

         Our collective judgment is that the sentence imposed by the trial court in this case is not

inappropriate under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly,

we grant transfer, see Ind. Appellate Rule 58(A), and affirm the sentence imposed by the trial

court.



All Justices concur.




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