MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Mar 17 2017, 8:31 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General
Crown Point, Indiana
                                                         Denise A. Robinson
                                                         Senior Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Samuel Jacob Fies,                                       March 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1611-CR-2547
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1609-FB-2




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017      Page 1 of 6
                                             Case Summary
[1]   Samuel Jacob Fies appeals the five-year aggregate sentence imposed by the trial

      court following his guilty plea to one count of class C felony sexual misconduct

      with a minor and one count of class A misdemeanor inappropriate

      communication with a child. His sole contention on appeal is that his sentence

      is inappropriate in light of both the nature of the offenses and his character.

      Concluding that Fies has not met his burden of demonstrating that his sentence

      is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   The relevant facts indicate that between May 2010 and October 2011, then

      thirty-two-year-old Fies served as a social studies teacher and track and cross

      country coach in the Highland school system. During September 2011, Fies

      was in a middle school classroom with fifteen-year-old student S.C., when he

      grabbed her breast and genitalia with the intent to arouse or to satisfy his or

      S.C.’s sexual desires.


[3]   Between December 2010 and October 2011, thirteen-year-old L.D. was a

      student at Highland Middle School. During that time, she came into contact

      and communicated with Fies through social media sites on the internet. During

      these communications, Fies discussed both general and specific acts of sexual

      activity with L.D., including asking L.D. to send pictures “up her dress” to

      him, and asking her to perform sexual acts on him and herself. Appellant’s

      App. at 12. Fies engaged in these communications with the intent to gratify his


      Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017   Page 2 of 6
      or L.D.’s sexual desires. At the time of the communications, Fies believed L.D.

      to be less than fourteen years of age.


[4]   The State charged Fies with one count of class B felony sexual misconduct with

      a minor, one count of class C felony sexual misconduct with a minor, one

      count of class C felony child molesting, one count of class D felony criminal

      confinement, one count of class C felony child solicitation, and one count of

      class D felony attempted child seduction. On July 12, 2016, Fies pled guilty to

      one count of class C felony sexual misconduct with a minor and an amended

      charge of class A misdemeanor inappropriate communication with a child.1

      The remaining charges were dismissed. Pursuant to the plea agreement,

      sentencing was left to the trial court’s discretion with the exception that the

      sentences imposed would be ordered served concurrently. Following a

      sentencing hearing, the trial court imposed a five-year sentence on the felony

      count to be served concurrently with a one-year sentence on the misdemeanor

      count, for a total executed sentence of five years. This appeal ensued.


                                         Discussion and Decision
[5]   Fies claims that his sentence is inappropriate and invites this Court to reduce

      his sentence pursuant to Indiana Appellate Rule 7(B), which provides that we

      may revise a sentence authorized by statute if, after due consideration of the

      trial court’s decision, we find that the sentence “is inappropriate in light of the




      1
          See Ind. Code §§ 35-42-4-9 and 35-42-4-13.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017   Page 3 of 6
      nature of the offense and the character of the offender.” The defendant bears

      the burden to persuade this Court that his or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

      sentencing scheme allows trial courts to tailor an appropriate sentence to the

      circumstances presented, and the trial court’s judgment “should receive

      considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

      The principal role of appellate review is to attempt to “leaven the outliers.” Id.

      at 1225. Whether we regard a sentence as inappropriate at the end of the day

      turns on “our sense of the culpability of the defendant, the severity of the crime,

      the damage done to others, and myriad other facts that come to light in a given

      case.” Id. at 1224. Our appellate review 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. Gleason v. State,

      965 N.E.2d 702, 712 (Ind. Ct. App. 2012).


[6]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

      for a class C felony is between two and eight years, with the advisory sentence

      being four years. Ind. Code § 35-50-2-6. A person who commits a class A

      misdemeanor shall be imprisoned for a fixed term of not more than one year.

      Ind. Code § 35-50-3-2. Here, the trial court imposed concurrent sentences,

      resulting in an aggregate executed sentence of five years, which is only slightly




      Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017   Page 4 of 6
      above the advisory sentence for a class C felony and well below the maximum

      allowable sentence.2


[7]   Fies makes no argument that a sentence reduction is warranted based upon the

      nature of his offenses. Indeed, he concedes that his actions of touching S.C.

      and inappropriately communicating with L.D. with the intent to arouse or to

      satisfy/gratify his or his victims’ sexual desires were “troubling” especially

      because “the two were students at the school where he was a teacher.”

      Appellant’s Br. at 14. However, he urges us to give more weight to the nature

      of his character and requests that we base our decision primarily on that

      element of the 7(B) analysis. See Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct.

      App. 2016) (observing that appellate court must consider both elements of 7(B)

      analysis when determining whether sentence is inappropriate even if defendant

      essentially concedes that sentence imposed would be warranted if court only

      considered one prong). This is an “acceptable request for exercise of our

      review and revise power” as our 7(B) review is a “holistic approach” which

      requires an analysis of the overall sentence to determine if it is inappropriate.

      Id.


[8]   Fies emphasizes his lack of criminal history, his decision to plead guilty, his

      gainful employment, his sincere remorse, his law-abiding behavior on pretrial

      release, and the letters of support from third parties as evidence of his good



      2
       Fies erroneously and repeatedly states that the sentencing range for a class C felony is between two and six
      years, rather than between two and eight years, and asserts that his five-year sentence is “nearly the
      maximum permitted.” Appellant’s Br. at 14; Reply Br. at 5. This is simply incorrect.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017              Page 5 of 6
      character. We do not discount this evidence. Still, this evidence does not paint

      a complete picture of Fies’s character. Instead, we agree with the trial court

      that his manipulative, opportunistic, and predatory behavior toward his young

      student victims “bodes against [his] character.” Tr. at 90. Moreover, as we

      noted above, Fies five-year sentence is only slightly above the advisory sentence

      and well below the maximum for a class C felony of a very serious nature.

      Under the circumstances, Fies has not met his burden to persuade us that his

      five-year executed sentence is inappropriate in light of both the nature of his

      offenses and his character. Therefore, we affirm the sentence imposed by the

      trial court.


[9]   Affirmed.


      Riley, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1611-CR-2547 | March 17, 2017   Page 6 of 6
