MEMORANDUM DECISION                                                             FILED
                                                                           Sep 27 2017, 11:15 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
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court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer M. Lukemeyer                                    Curtis T. Hill, Jr.
Tyler D. Helmond                                         Attorney General of Indiana
Voyles Vaiana Lukemeyer
                                                         Matthew B. MacKenzie
Baldwin & Webb                                           Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Reiske,                                          September 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1702-CR-377
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      John F. Surbeck, Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1412-FB-147



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017            Page 1 of 11
[1]   William Reiske (“Reiske”) was sentenced to ten-year years following his

      convictions for criminal deviate conduct,1 as a Class B felony, and contributing

      to the delinquency of a minor,2 as a Class A misdemeanor.3 On appeal, Reiske

      contends that the trial court abused its discretion when it denied his petition for

      modification of his ten-year sentence, eight years of which were ordered

      executed.


[2]   We affirm.


                                       Facts and Procedural History
[3]   The facts most favorable to the verdict show that on the night of December 28

      through the morning of December 29, 2013, a group of college-aged friends,

      including Reiske, N.B., G.B., R.L., A.H., M.K., and T.H., were “hanging out”

      at N.B.’s Allen County home. Tr. Vol. I at 187. During the gathering, Reiske

      “target[ed]” T.H., who at that time was seventeen years old, by giving her shots

      and “trying to get [her]drunk.” Id. at 210-11. Reiske gave T.H. “eight [drinks]

      at least.” Id. at 229. After several guests had either left the party or gone to

      sleep, R.L. and A.H. remained in the basement with Reiske, M.K., and T.H.

      R.L. testified that Reiske began doing and saying things to T.H. that “just didn’t




      1
       See Ind. Code § 35-42-4-2 (2013). Effective July 1, 2014, this section was repealed by P.L. 158–2013, SEC.
      438 and P.L. 214–2013, SEC. 37.
      2
          See Ind. Code § 35-46-1-8.
      3
        Reiske was charged with and convicted of two counts of Class B felony criminal deviate conduct; however,
      the trial court merged those counts prior to sentencing.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017        Page 2 of 11
      seem right.” Id. at 234. Reiske’s actions made R.L. feel uncomfortable, so he

      suggested it was time for bed. Id. at 234-35. R.L. and A.H. went upstairs,

      leaving Reiske, M.K., and T.H. downstairs.


[4]   Soon thereafter, R.L. and A.H. went outside to smoke a cigarette and, through

      a basement window, they observed Reiske performing oral sex on T.H., who

      was naked from the waist down. Id. at 236. T.H. showed no reaction; due to

      her intoxication, she was in “kind of like a zombie state.” Id. at 235, 238.

      While Reiske was performing oral sex on T.H., M.K. was using Reiske’s cell

      phone to film the sex act. R.L. and A.H., unsure what to do, woke G.B. and

      N.B., who went outside and, through the window, also saw Reiske performing

      oral sex on T.H. Id. at 212-13; Tr. Vol. II at 259, 269. The young men went

      toward the basement stairs, calling out to ask what was going on. Reiske

      replied, “[N]othing, it[’]s fine. [D]on’t worry about it, just go back upstairs.”

      Tr. Vol. I at 240. N.B. then called out to T.H., who did not respond. Instead,

      Reiske called up to say, “[S]he’s fine.” Id. at 241. Knowing that Reiske’s

      responses were not consistent with what they had seen, R.L., A.H., G.B., and

      N.B. went into the basement and helped T.H. up the stairs—T.H. was “still in

      that zombie state where she -- you could tell she didn’t really know what was

      going on.” Id. at 242.


[5]   T.H. retained only a few clear memories of that night. She specifically

      remembered “arriving, taking a shot, playing videogames and . . . waking up.”

      Id. at 189. When she awoke in the basement, Reiske was on top of her, and

      M.K. had a phone. Id. T.H. remembered that, shortly thereafter, “[G.B.] and

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017   Page 3 of 11
      [R.L.] and [A.H.] came running in and yelling . . .. They were just yelling like

      probably stop, stop.” Id. T.H. then remembered getting dressed and being

      helped upstairs. Id. She also remembered, as if she were having “an out of

      body experience,” that Reiske touched her vagina with his hands and tongue.

      Id. at 191-92. T.H. did not remember how her clothes were removed. Id. at

      193-94.


[6]   The incident was subsequently reported to the police, and on December 9,

      2014, the State charged Reiske with two counts of Class B felony criminal

      deviate conduct and one count of Class A misdemeanor contributing to the

      delinquency of a minor. Following a September 2015 jury trial, Reiske was

      found guilty of all counts, and the Class B felonies were merged prior to

      sentencing. At the sentencing hearing, the State recognized as mitigating

      factors that Reiske had family and community support and no criminal history.

      Sentencing Tr. at 27-28. As aggravating factors, the State noted that, on the

      night in question, Reiske repeatedly plied T.H. with alcohol, while telling his

      friends that “he was in the process of setting up an amateur porn site.” Id. at

      28. The State emphasized that M.K. was recording the criminal acts not with

      his own cell phone, but with Reiske’s phone. Id. at 28-29. Finally, the State

      argued that a sentence below the advisory “would depreciate the severity of

      what happened to the victim in this case.” Id. at 30.


[7]   Defense counsel, through the testimony of Reiske’s mom, his stepdad, his

      father, his sister, his girlfriend, his girlfriend’s father, and his former employer,

      presented evidence of Reiske’s stable employment, his good character, and his

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017   Page 4 of 11
      special talents in music and computer programming. During closing argument,

      defense counsel argued that Reiske’s good character, family support, and career

      opportunities were strong mitigating factors for the trial court to consider as a

      basis for a fully suspended sentence. Id. at 32-33. Reiske, himself, thanked

      those who supported him and expressed hope that one day he would be seen as

      a hardworking and responsible person who cares about the wellbeing of others.4

      Id. at 35-37.


[8]   The trial court found that Reiske’s lack of criminal history and his

      “extraordinary support in the community” were mitigating factors. Id. at 37.

      Even so, the trial court said,


               There’s a down side to that [support] from my perspective, not
               from yours but from mine, that apparently [Reiske] did not learn
               from this support. We’re not here to decide whether [Reiske] is a
               good boy or a bad boy, but whether or not [Reiske] committed a
               very serious criminal act and the Jury has decided that. Uh, now
               my role is to determine the appropriate punishment or sanction.
               Um, moving on, the Prosecutor proposes, um, several
               aggravating circumstances. Um, there was evidence to support
               that [Reiske] plied the victim here with alcohol for the purposes
               ultimately achieved. Um, but in terms of a porn site, I think
               that’s speculation. It might explain the entire course of events
               because nothing else does. Um, but that’s speculation and I will
               not consider that in sentencing. And I’ll give the alcohol thing



      4
       Reiske, in part, stated, “I regret that I’ll never be able to teach again, because teaching music was one of the
      most important roles I’ve had in my life. It saddens me that I have to let it all go. I admit I made several bad
      decisions that night. I never once had bad intentions.” Sentencing Tr. at 36. At that time, Reiske did not
      apologize to T.H. for the crimes he committed against her. In fact, more than six months after sentencing,
      Reiske told his psychologist that the sexual act was consensual. Modification Tr. at 40.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017            Page 5 of 11
        some weight, but not a great deal. . . . [W]e all know that
        [Reiske] is an accomplished musician and an accomplished
        computer engineer[,] . . . and we all know as well that his
        conduct was inexcusable. And I think each and every one of the
        people who have gotten up and spoken spoke honestly about
        their relationship. I think they -- they each all know in their heart
        that what happened here is wrong and something needs to be
        done in spite of the fact that perhaps you do not want to admit it.
        We can’t just step around what happened that night because it
        did happen. . . . [A] number of folks who have spoken are of my
        generation or close. . . . [P]robably every one of us knew
        somebody who did the sort of things that [Reiske] did or
        somebody who had done to them what [Reiske] did to this
        victim. And we all knew it was wrong and we didn’t do it but
        that’s what went on fifty (50) years ago. This is fifty (50) years
        later. This community has come a long[,] long way and this
        community and this society . . . has finally come to realize and
        appreciate the value of women in society. They are equal or
        perhaps more than equal, uh, partners in this society. They are
        not to be treated the way [Reiske] treated this young lady. And if
        it’s a question fifty (50) years ago, it’s -- it is no longer. That’s
        not a mistake, that’s not a piece of bad judgment that we step
        around. And I say that to everybody who has been here today
        and has spoken. I say that with respect to you all and I don’t
        mean to offend you. I -- I appreciate the fact that you are here.
        But nevertheless, the conduct of that night needs to be dealt with,
        and it needs to be dealt with according to the Criminal Code of
        Indiana.


Sentencing Tr. at 37-40. The trial court sentenced Reiske to ten years for the

Class B felony conviction, of which eight years were ordered executed and two

years suspended to probation. For the Class A misdemeanor conviction, the

trial court ordered a one-year, concurrent sentence. Reiske’s aggregate



Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017   Page 6 of 11
       executed eight-year sentence started on November 2, 2015. Appellant’s App. Vol.

       II at 9.


[9]    On November 12, 2015, Reiske appealed that judgment in Cause Number

       02A03-1511-CR-1877, but thereafter, he moved to remand and temporarily stay

       his appeal. Appellant’s Confidential App. Vol. II at 23. Our court granted Reiske’s

       motion and dismissed that appeal without prejudice to allow Reiske to “pursue

       post-conviction relief and sentence modification before the trial court.” Id. We

       held, “If any part of the trial court’s forthcoming ruling on Appellant’s petition

       for post-conviction relief is adverse to Appellant, Appellant may, after filing a

       new notice of appeal, raise the issues he would have raised in [the first] appeal

       along with the new issues created by the trial court’s ruling on the petition for

       post-conviction relief.” Id. In May 2016, the trial court also granted Reiske’s

       motion for a psychological evaluation by Dr. Stephen Ross. Id. at 12, 55.


[10]   In October 2016, Reiske filed a petition for modiﬁcation of his sentence. At the

       January 2017 modification hearing, more than three years after Reiske

       committed the crimes, he apologized to the victim. Modification Tr. at 6-7. In

       support of modification, Reiske reported that he had had no “conduct reports”

       while incarcerated. Id. at 6. He explained that he had a change of attitude in

       prison, which arose from insight he had gained while taking part in groups like

       the Praise and Worship Team and playing drums with the “House Band” and

       the “Jazz Band.” Id. at 7, 18. In his first prison job, Reiske built a database

       that kept track of offender movement within the prison. That job led to a job

       with the prison library, where Reiske built a new database to track the inventory
       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017   Page 7 of 11
       of books. Thereafter, Reiske worked with the prison’s IT team. Id. at 13-14.

       Reiske testified that he was taking classes and had “enrolled in Grace College

       for an Associate’s Degree in the Science of Interdisciplinary Studies.” Id. at 19.

       Finally, Reiske, again, highlighted that his relationships with his former

       employer, his parents and stepparents, and his girlfriend and her parents,

       provided him with great support. Id. at 20. From the bench, and later by order,

       the trial court denied Reiske’s request for sentence modification. He now

       appeals.


                                      Discussion and Decision
[11]   Reiske asserts that the trial court abused its discretion by denying his petition

       for sentence modification. We review a trial court’s decision regarding a

       petition to modify only for an abuse of discretion. Carr v. State, 33 N.E.3d 358,

       358 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion has occurred

       when the trial court’s decision was “clearly against the logic and effect of the

       facts and circumstances before the court.” Id. at 359. In deciding whether an

       abuse of discretion occurred, appellate courts may not reweigh the evidence,

       but will consider only the evidence favorable to the judgment. Banks v. State,

       847 N.E.2d 1050, 1052 (Ind. Ct. App. 2006), trans denied. A defendant who,

       before July 1, 2014, commits an offense or is sentenced may petition the trial

       court for a reduction or suspension of sentence, “[a]t any time after: 1) a

       convicted person begins serving the person’s sentence; and 2) the court obtains

       a report from the department of correction concerning the convicted person’s

       conduct while imprisoned.” See Ind. Code § 35-38-1-17(a), (e). The trial court

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017   Page 8 of 11
       “may reduce or suspend the sentence and impose a sentence that the court was

       authorized to impose at the time of sentencing.” Ind. Code § 35-38-1-17(e). The

       trial court may also deny a request to suspend or reduce a sentence under this

       section without making written findings and conclusions. See Ind. Code § 35-

       38-1-17(h).


[12]   On appeal, Reiske argues that he had compiled an incredible record of

       rehabilitation and achievement at the time of the modiﬁcation hearing.


               He was a model inmate. He helped develop software systems to
               aid the Department of Correction[’s] New Castle facility. He
               took part in music and worship programs, completed courses
               through Grace College in a degree program, responded to
               violence directed at him with non-violence, showed a strong
               family support system and employment waiting for him upon
               release, and presented expert psychological testimony about
               sentencing alternatives in a recidivism context.


       Appellant’s Br. at 9. While recognizing that this case involves a “very serious

       crime,” Reiske argues that this is one of the “rare” cases with “a record that

       shows a sentencing court abused its discretion in denying a sentence

       modiﬁcation.” Id. We disagree.


[13]   On appeal, Reiske focuses on his participation in programs, the good work he

       has done in his prison jobs, and the efforts he has made to educate and

       rehabilitate himself, contending that these actions are sufficient proof that the

       trial court abused its discretion when it denied his petition for sentence

       modification. These are the same arguments defense counsel made at the


       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017   Page 9 of 11
       sentence modification hearing. At that hearing, the trial court recognized

       Reiske’s accomplishments, yet found that those accomplishments did not

       warrant a modified sentence. The trial court explained:


               [A]s pointed out by counsel for the State, um, I – I’m not seeing a
               substantial change or a significant enough change from what
               existed a year or so ago to modify this sentence. Um, and I will
               try to explain . . . that to you. Um, he -- the Defense, [sic]
               appropriately perhaps, has dwelt upon his achievements at the
               DOC and I congratulate you for the things that you have done.
               I’m also well aware that those things have gained you certain
               privileges, which is good. You’ve -- you’ve earned those
               privileges and you’re entitled to those. Um, and counsel has
               dwelt upon rehabilitation. Um, but we must always remember
               that there is some part of a sentence that is imposed for
               punishment, um, and we have not fulfilled that. Um, you -- and -
               - and don’t misunderstand what I’m about to say, um, because
               I’m certainly not offended at all, but, um, you, shall we say,
               critiqued my crafting of a sentence, um, and I would assure you
               that I spent a great deal of time, um, attempting to determine
               what’s appropriate in this case under all of the circumstances that
               existed. And I’m still comfortable with that sentence.


       Modification Tr. at 50-51.


[14]   Reiske was convicted of Class B felony criminal deviate conduct and Class A

       misdemeanor contributing to the delinquency of a minor. At the time of

       sentencing, the advisory sentence for a Class B felony was ten years. Reiske

       was sentenced to the advisory sentence, but was ordered to serve only eight of

       the ten years. Reiske requested a modification of his sentence about fourteen

       months into his sentence. The trial judge, who had presided over the original


       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-377 | September 27, 2017   Page 10 of 11
       trial, the sentencing hearing, and the modification hearing, considered Reiske’s

       progress, his talents, and his family support. Based on the evidence, the trial

       court set forth a clear rationale as to why modification of Reiske’s sentence was

       not warranted after just fourteen months of incarceration. An abuse of

       discretion has occurred when the trial court’s decision was “clearly against the

       logic and effect of the facts and circumstances before the court.” Carr, 33

       N.E.3d at 358. The trial court did not abuse its discretion when it denied

       Reiske’s petition for sentence modification.


[15]   Affirmed.


       Riley, J., and Brown, J., concur.




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