MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Feb 13 2018, 9:24 am
court except for the purpose of establishing
the defense of res judicata, collateral                                          CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                      Curtis T. Hill, Jr.
Columbus, Indiana                                        Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dylan J. Carley,                                         February 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         03A05-1708-CR-2014
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         03D01-1601-F1-83



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018             Page 1 of 9
                                              Case Summary
[1]   During the summer of 2015, twenty-one or twenty-two-year-old Appellant-

      Defendant Dylan J. Carley1 engaged in sexual conduct with a fifteen-year-old

      minor. During the early morning hours of December 26, 2015, Carley engaged

      in sexual intercourse and other sexual behavior with an eleven-year-old minor.

      Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged

      Carley with two counts of Level 1 felony child molesting and one count of

      Level 4 felony sexual misconduct with a minor.


[2]   On June 19, 2017, Carley pleaded guilty to the lesser-included offense of Level

      3 felony child molesting under Count I, the lesser-included offense of Level 3

      felony child molesting under Count II, and Level 4 felony sexual misconduct

      under Count III. In accordance with the terms of Carley’s plea agreement, the

      trial court sentenced Carley to an aggregate forty-year sentence. The trial court

      ordered that thirty-six years of Carley’s sentence be executed in the Department

      of Correction (“DOC”) with four years suspended to probation. On appeal,

      Carley challenges his sentence, arguing that his aggregate forty-year sentence is

      inappropriate in light of the nature of his offenses and his character. We affirm.



                              Facts and Procedural History2


      1
          Carley turned twenty-two on June 30, 2015.
      2
        The factual basis provided to the trial court during the guilty plea hearing included only a basic factual
      overview and lacked the details necessary to provide context to the reader. Therefore, to the extent

      Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018             Page 2 of 9
[3]   At some point between June 1, 2015 and July 21, 2015, Carley, being at least

      twenty-one years of age, engaged in sexual conduct with fifteen-year-old A.S.

      A.S. subsequently reported that Carley had “had her perform oral sex upon

      him.” Appellant’s App. Vol. II–Confidential, p. 14.


[4]   During the early morning hours of December 26, 2015, Carley engaged in

      sexual intercourse with eleven-year-old B.P. Also on this date, Carley engaged

      in other sexual conduct with B.P. B.P. reported that Carley “began kissing her

      and fondling her[,] … that he eventually pulled down her pants and proceeded

      to have sexual intercourse with her[,] … [and] he also had her perform oral sex

      upon him.” Appellant’s App. Vol. II–Confidential, p. 13.


[5]   In connection to his acts involving B.P., on January 6, 2016, the State charged

      Carley with two counts of Level 1 felony child molesting. In connection to his

      acts involving A.S., the State charged Carley with one count of Level 4 felony

      sexual misconduct with a minor.


[6]   On April 7, 2017, the State offered Carley a plea agreement, the terms of which

      provided as follows:


               1. [Carley] shall plead guilty to the lesser included offense of
               Child Molesting as a Level 3 Felony under Count 1, the lesser
               included offense of Child Molesting as a Level 3 Felony under
               Count 2, and to Count 3, Sexual Misconduct with a Minor as a
               Level 4 Felony.



      necessary, we will rely on information contained in the probable cause affidavit filed in the underlying case to
      provide context to the readers.

      Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018            Page 3 of 9
              2. The State agrees the sentence shall not exceed 42 years.
              3. The State agrees to not file any additional charges as a result
              of the investigation in this matter.


      Appellant’s App. Vol. II–Confidential, p. 53. Carley accepted the terms as

      offered. On June 19, 2017, the trial court conducted a guilty plea hearing.

      During this hearing, Carley pled guilty to two counts of Level 3 felony child

      molesting and one count of Level 4 felony sexual misconduct with a minor.

      The trial court accepted Carley’s guilty plea.


[7]   The trial court conducted a sentencing hearing on August 1, 2017. At the

      conclusion of this hearing, the trial court imposed consecutive fifteen-year

      sentences on each of the Level 3 felony convictions and a consecutive ten-year

      sentence on the Level 4 felony conviction, for an aggregate term of forty years.

      The trial court ordered that thirty-six years shall be executed in the DOC and

      the last four years suspended to probation. This appeal follows.



                                 Discussion and Decision
[8]   Carley contends that his aggregate forty-year sentence is inappropriate in light

      of the nature of his offenses and his character. Indiana Appellate Rule 7(B)

      provides that “The 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.” In analyzing such claims, we “‘concentrate less on comparing the

      facts of [the case at issue] to others, whether real or hypothetical, and more on

      Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018   Page 4 of 9
       focusing on the nature, extent, and depravity of the offense for which the

       defendant is being sentenced, and what it reveals about the defendant’s

       character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting

       Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied). Further,

       “[o]ur review under Appellate Rule 7(B) 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.’” Williams v. State,

       997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008)). “The appropriate question is not whether

       another sentence is more appropriate; rather, the question is whether the

       sentence imposed is inappropriate.” Id. (citing Fonner v. State, 876 N.E.2d 340,

       344 (Ind. Ct. App. 2007)). The defendant bears the burden of persuading us

       that his sentence is inappropriate. Id.


[9]    The nature of Carley’s criminal actions is disturbing. Carley first victimized a

       fifteen-year-old child by having the child perform oral sex on him. He then

       victimized an eleven-year-old child by having that child both engage in sexual

       intercourse with and perform oral sex on him. Carley seems to have some form

       of an on-going familial relationship with his victims, the daughters of his aunt’s

       boyfriend. The acts involving the younger child occurred while Carley’s family

       was assembled together to celebrate the Christmas holiday.


[10]   As for Carley’s character, we acknowledge that Carley had a minor criminal

       history consisting of only a juvenile adjudication for a curfew violation and

       relatively minor driving offenses. However, the fact that his first felony offenses

       Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018   Page 5 of 9
       involved the victimization of children does not reflect well on his character.

       Further, despite the fact that Carley has a relatively minor criminal history, the

       risk assessment score derived from the Indiana Risk Assessment System

       indicates that Carley is a “moderate risk to re-offend.” Appellant’s App. Vol.

       II–Confidential, p. 66.


[11]   Carley also has a long-standing history of substance abuse. Carley indicated

       that he began using alcohol and drugs when he was fourteen years old. He also

       indicated that despite recognizing that he has a problem, he has never sought

       treatment for his drug use. This is especially troubling given that Carley

       indicated that he could not remember if he had been drinking when he

       committed his acts involving A.S., but that he was “heavily intoxicated” when

       he committed his acts involving B.P. Tr. Vol. II, p. 29.


[12]   While it is true that Carley accepted responsibility for his actions by pleading

       guilty, Carley obtained a significant benefit by doing so. Although he had been

       charged with two Level 1 felony offenses, the State agreed that he would plead

       guilty to two lesser-included Level 3 felony offenses. Having two Level 1 felony

       child molesting charges reduced to Level 3 felony child molesting charges

       significantly limited his potential sentencing exposure. See Ind. Code § 35-50-2-

       4(c) (providing that a person who commits a Level 1 felony child molesting

       offense shall be imprisoned for a fixed term between twenty and fifty years);

       Ind. Code § 35-50-2-5 (providing that a person who commits a Level 3 felony

       shall be imprisoned for a fixed term between three and sixteen years). Carley’s

       potential sentencing exposure was further limited by the terms of his plea

       Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018   Page 6 of 9
       agreement. The trial court sentenced Carley in accordance with this agreement,

       imposing an aggregate term of less than the maximum permitted under the

       terms of the agreement.


[13]   Furthermore, we are not persuaded by Carley’s claim that it was inappropriate

       to run the sentences for his Level 3 felony convictions consecutive to one

       another as he merely engaged in one sexual episode with B.P. While it may be

       true that all of his actions involving B.P. occurred on one date, Carley

       committed a number of different sexual violations against B.P. He had her both

       engage in sexual intercourse with him and perform oral sex on him. We are

       unpersuaded by Carley’s attempt to frame his actions as “foreplay” that often

       occurs during the normal course of a consensual adult sexual encounter.

       Appellant’s Br. p. 12. Carley’s “partner” in this so-called “foreplay” was not an

       adult, but an eleven-year-old child.


[14]   In arguing that his sentence is inappropriate, Carley relies on Sanchez v. State,

       938 N.E.2d 720 (Ind. 2010) and Monroe v. State, 886 N.E.2d 578 (Ind. Ct. App.

       2008). In both Sanchez and Monroe, the Indiana Supreme Court found that the

       aggregate sentences imposed following the defendants’ convictions for child

       molesting were inappropriate. In Sanchez, the Indiana Supreme Court

       concluded that although the defendant had committed serious crimes involving

       rubbing his step-daughters’ vaginas, his eighty-year sentence was nonetheless

       inappropriate in light of the nature of his offenses and his character. 938

       N.E.2d at 722–23. In reaching this conclusion, the Indiana Supreme Court

       noted that the defendant had not used significant force in committing his acts

       Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018   Page 7 of 9
       and that he had a relatively minor criminal history. Id. The Indiana Supreme

       reduced the defendant’s aggregate sentence to forty years. Id. at 723. In

       Monroe, the Indiana Supreme Court concluded that while an enhanced sentence

       was warranted in light of the nature of the defendant’s offenses and his

       character, it was inappropriate to impose consecutive sentences. 886 N.E.2d at

       580.


[15]   However, the fact that Indiana Supreme Court reduced the defendants’

       sentences in Sanchez and Monroe does not prove that Carley’s aggregate forty-

       year sentence is inappropriate. All three cases involve convictions for child

       molesting. Like Sanchez, the instant matter involves the victimization of two

       young children. We agree with the State that Carley’s actions, i.e., having two

       minors perform oral sex on him and the younger minor engage in sexual

       intercourse with him, are certainly no less egregious than those described in

       Sanchez. The aggregate forty-year sentence imposed in this case is the same as

       the reduced sentence imposed by the Indiana Supreme Court in Sanchez.

       Further, the aggregate forty-year sentence is less than the reduced fifty-year

       aggregate sentence imposed by the Indiana Supreme Court in Monroe. Each

       case turns on the specific facts and circumstances presented before the court.

       Given the facts and circumstances of this case, we find Carley’s reliance upon

       Sanchez and Monroe to be unpersuasive.


[16]   Again, Carley bears the burden of persuading us that his sentence is

       inappropriate. Williams, 997 N.E.2d at 1165. For the above-stated reasons, we

       conclude that Carley has failed to prove that his aggregate forty-year sentence is

       Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018   Page 8 of 9
       inappropriate in light of the nature of his offenses and his character. As such,

       we affirm the judgment of the trial court.


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


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A05-1708-CR-2014 | February 13, 2018   Page 9 of 9
