MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      Dec 17 2015, 7:38 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Patrick J. Smith                                        Gregory F. Zoeller
Bedford, Indiana                                        Attorney General of Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy L. Bye,                                         December 17, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        59A01-1504-CR-141
        v.                                              Appeal from the Orange Circuit
                                                        Court
State of Indiana,                                       The Honorable Larry R. Blanton,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        59C01-1306-FB-410



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015     Page 1 of 13
[1]   Timothy L. Bye pleaded guilty to sexual misconduct with a minor1 as a Class B

      felony and was sentenced to fifteen years with ten years executed and five years

      suspended to probation. Bye appeals his sentence, raising the following restated

      issues:


                I. Whether the trial court abused its discretion when it did not
                find that Bye’s remorse and guilty plea were significant
                mitigating factors; and

                II. Whether Bye’s sentence is inappropriate in light of the nature
                of the offense and the character of the offender.


[2]   We affirm.


                                   Facts and Procedural History2
[3]   On June 18, 2013, at approximately 11:45 a.m., Paoli Fire Chief Dutch Parks

      (“Chief Parks”) called Paoli Police Chief Randall Sanders (“Chief Sanders”) to

      report that he saw a young female, later identified as J.C., and an older male,

      later identified as Bye, together at Radcliff Park “sitting in the grass near the

      weeds/tree line.” Appellant’s App. at 13. Chief Parks stated that Bye appeared

      to be having “inappropriate contact” “with the young female” and asked Chief

      Sanders to “check on the child.” Id.




      1
        See Ind. Code § 35-42-4-9. We note that, effective July 1, 2014, a new version of this criminal statute was
      enacted. Because Bye committed his offense prior to July 1, 2014, we will apply the statute in effect at the
      time he committed his crime.
      2
        Because the factual basis at the change of plea hearing consisted of just the elements of the offense, we
      include facts also found in the State’s probable cause affidavit and Bye’s testimony at the sentencing hearing.

      Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015            Page 2 of 13
[4]   Chief Sanders and Officer Scott Dillman (“Officer Dillman”) immediately went

      to the park to investigate. As they approached, Officer Dillman could see that

      J.C. was sitting on Bye’s lap and that Bye had his hand on J.C.’s leg. Chief

      Sanders was familiar with Bye and knew he was approximately forty years old.

      Being unfamiliar with the female, Chief Sanders asked her name and age. J.C.

      provided her name and said she was eighteen years old. When Chief Sanders

      asked J.C. a second time how old she was, J.C. admitted she was only fifteen.


[5]   Chief Sanders took J.C. to his patrol car, contacted her mother (“Mother”), and

      asked Mother to come to the park. Officer Dillman stayed with Bye, who told

      Officer Dillman that he met J.C. on Facebook and had been seeing her for two

      weeks. Bye stated that J.C. told him she was eighteen years old, they had been

      meeting in the park, and Mother knew that Bye and J.C. were meeting. When

      Mother arrived at the park, she told Chief Sanders that she had met Bye just a

      few weeks earlier, had told him that J.C. was only fifteen years old, and had

      given permission for J.C. and Bye to talk as friends. Mother related that she

      told Bye that, if he wanted a relationship with J.C., he would have to wait until

      she turned eighteen years old. J.C. reported that she and Bye had never had

      sexual intercourse, but that he had fondled her breasts and “privates,” at first

      over her clothing and then under her clothing. J.C. further stated that, a few

      days earlier, Bye had inserted his finger into her vagina while they were in the

      park.


[6]   Based on the information obtained from Mother and J.C., Chief Sanders asked

      Officer Dillman to detain Bye. Bye then admitted that he knew J.C. was only

      Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 3 of 13
      fifteen years old, and Officer Dillman transported Bye to the Paoli Police

      Department to be interviewed. Bye initially denied having any contact with

      J.C. other than hugging and kissing her. However, when Officer Dillman

      confronted him with J.C.’s statement, Bye changed his story and admitted that

      he fondled J.C. and penetrated her vagina with his fingers while they were at

      the park two to three days earlier.


[7]   On June 19, 2013, the State charged Bye with one count of Class B felony

      sexual misconduct with a minor. Sixteen months later, on October 14, 2014,

      Bye pleaded guilty, without the benefit of a plea agreement, and judgment of

      conviction was entered on the same day. At sentencing, Bye admitted that he

      had a previous conviction for Class D felony neglect of a dependent. Bye noted

      that he and his ex-wife have “joint custody” of their seven children and that he

      worked and helped provide for his children. Tr. at 28. Bye maintained that his

      abuse of alcohol and drugs, including methamphetamine, marijuana, and

      prescription drugs, affected his judgment, resulting in his seeking a sexual

      relationship with a fifteen-year-old girl. Id. at 35. Even so, Bye insisted that he

      spent “this time in jail to get past all the cravings and the withdrawal symptoms

      of the dope”; therefore, Bye “believe[d]” that upon his release, he “will be able

      to go back to work and [] will be able to stay off of the dope.” Id. at 28. Bye

      claimed as mitigating factors that he “has a relatively low criminal history,” he

      pleaded guilty, the crime was unlikely to reoccur, further incarceration would

      put undue hardship on his children, he was no longer dependent on drugs or

      alcohol, he had a steady job for the prior three years, and he apologized and


      Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 4 of 13
      took responsibility for his crime. Id. at 41, 42. Bye asked for an eight-year

      sentence with two years suspended, for an aggregate executed sentence of six

      years, which was the minimum sentence for a Class B felony conviction.


[8]   The State argued that it was an aggravating circumstance that Bye was on

      probation for felony neglect of a dependent when he committed this crime.

      Moreover, the neglect of a dependent conviction involved Bye preying on

      another person in the community, which in that case was an older relative who

      did not have the mental capacity to care for himself. The State insisted that it

      was significant that in both his prior offense and the current crime Bye preyed

      on the vulnerable, and that his two crimes had occurred within a short period of

      time. The State also maintained that it was an aggravating factor that Bye was

      forty years old and blaming his substance abuse problem for his actions. In

      response to Bye’s request that his executed sentence be reduced to the minimum

      sentence of six years, the State contended that the imposition of a reduced

      sentence and imposition of probation would depreciate the seriousness of the

      crime. Further, the State asserted that counseling for substance abuse and

      “some sort of sexual [] counseling” could best be addressed in the Department

      of Correction. Id. at 46. The State asked the trial court to impose the

      maximum sentence of twenty years.


[9]   During sentencing, the trial judge discussed Bye’s alleged care and support of

      his family, noting that his eighteen-year-old son was in the same jail as his

      father, and that “a couple of the middle children” had also appeared before the

      judge on different matters. Id. at 51. Addressing Bye’s substance abuse

      Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 5 of 13
       problem, the trial court stated that it was his own doing, and that no one had

       forced him to use marijuana and methamphetamine or to abuse alcohol and

       prescription drugs. The trial court first revoked Bye’s probation on his former

       conviction and ordered him to serve 170 days. As to the instant offense, the

       trial judge found no specific aggravating or mitigating circumstances, but stated,

       “I have read the file. I have read the police reports. I have read the depositions

       that were given and the interviews that were taken.” Id. at 51. Having heard

       the testimony during sentencing, the trial court sentenced Bye to fifteen years

       with ten years executed and five years suspended to supervised probation, to be

       served consecutive to the 170-day-sentence. The trial court also recommended

       to the Department of Correction that Bye’s time be served in a therapeutic

       community. Bye now appeals.


                                      Discussion and Decision

                                       I. Abuse of Discretion
[10]   Bye challenges the trial court’s failure to find his remorse and his guilty plea as

       significant mitigating factors for sentencing. Sentencing decisions rest within

       the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.2007). So long as the

       sentence is within the statutory range, it is subject to review only for an abuse of

       discretion. Id. An abuse of discretion will be found where the decision is

       clearly against the logic and effect of the facts and circumstances before the

       court or the reasonable, probable, and actual deductions to be drawn therefrom.

       Westlake v. State, 987 N.E.2d 170, 175 (Ind. Ct. App. 2013). “A trial court may

       Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 6 of 13
       abuse its discretion in sentencing by failing to enter a sentencing statement,

       entering a sentencing statement that explains reasons for imposing a sentence

       which the record does not support, omitting reasons that are clearly supported

       by the record and advanced for consideration, or giving reasons that are

       improper as a matter of law.” Id. (citing Anglemyer, 868 N.E.2d at 490-91).


[11]   Bye contends that the trial court abused its discretion when it did not find his

       remorse to be a significant mitigating factor. “Our courts have recognized

       remorse as a valid mitigating circumstance.” Cotto v. State, 829 N.E.2d 520, 526

       (Ind. 2005). “An allegation that the trial court failed to identify or find a

       mitigating factor requires the defendant to establish that the mitigating evidence

       is both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d

       at 493. “A trial court is under no obligation to accept a defendant’s alleged

       remorse as a mitigating circumstance.” Phelps v. State, 969 N.E.2d 1009, 1020

       (Ind. Ct. App. 2012), trans. denied. Further, “[w]here the trial court does not

       find the existence of a mitigating factor after it has been argued by counsel, the

       trial court is not obligated to explain why it has found that the factor does not

       exist.” Id. at 1019.


[12]   Bye claims that the “the record was replete with evidence in support of a

       finding of remorse.” Appellant’s Br. at 13. As support for his claim, Bye states

       he “actually expressed remorse and apologized for his crime at his sentencing




       Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 7 of 13
hearing.” Id. Bye’s sole expression of remorse arose in response to his

attorney’s questioning on re-direct.3 That colloquy was as follows:

           Q. And, and I think you said this before but I want to make it
           clear, are you, are you sorry for what happened and you want to
           tell everyone. . .


           A. (interjecting) Yeah, yeah, I’m sorry for what happened. You
           know, I wish I could take it back but I can’t. I can’t change the
           past.


Tr. at 36-37. The State responded to Bye’s claim of remorse, stating:


           It is the State’s position that the, uh aggravating circumstances
           clearly outweigh the, uh, mitigating circumstances. [Defense]
           Counsel said that the defendant makes no excuses for what
           happened, well that’s the first thing we heard was an excuse. Uh,
           that, you know, it was the drugs and alcohol, anything that he
           could, uh, what was it, uh, snort or smoke but he wouldn’t, he
           wouldn’t shoot up. Well that’s the first thing he said. And I
           want the court to make [a] decision whether his, uh, uh, his
           apology, I don’t know if it was an apology but whether his
           remorse is sincere or not.


Id. at 46-47. The trial court did not find that remorse was a mitigating factor;

however, once Bye’s claim was argued by counsel, “the trial court [was] not

obligated to explain why it [] found that the factor does not exist.” Phelps, 969

N.E.2d at 1019.




3
    Our search of the transcript revealed no other instance where Bye said he was sorry or expressed remorse.


Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015            Page 8 of 13
[13]   “We recognize that substantial deference must be given to a trial court’s

       evaluation of remorse.” Sharkey v. State, 967 N.E.2d 1074, 1079 (Ind. Ct. App.

       2012). “Remorse, or lack thereof, by a defendant is something better guarded

       by a trial judge who views and hears a defendant’s apology and demeanor

       firsthand and determines the defendant’s credibility.” Id. (citing Phelps, 914

       N.E.2d at 293). Bye has not persuaded us that the trial court abused its

       discretion when it failed to find his remorse was a significant mitigating factor.


[14]   Bye also contends that the trial court abused its discretion when it failed to find

       his guilty plea was a significant mitigating factor. Our court has said, “[A]

       defendant who pleads guilty deserves to have at least some mitigating weight

       extended to the guilty plea in return.” Lavoie v. State, 903 N.E.2d 135, 143 (Ind.

       Ct. App. 2009). However, a guilty plea does not automatically amount to a

       significant mitigating factor. Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App.

       2005), trans. denied. “A plea’s significance is reduced if it is made on the eve of

       trial, if the circumstances indicate the defendant is not taking responsibility for

       his actions, or if substantial admissible evidence exists against the defendant.”

       Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans. denied.


[15]   Bye was charged in June 2013, and the trial court scheduled his jury trial for

       November 12, 2013. Bye requested and received numerous continuances over

       the year that followed. As late as a pre-trial conference held on September 29,

       2014, Bye gave no indication of any intent to plead guilty. It was not until the

       trial court held a second pre-trial conference on October 14, 2014 that Bye

       entered his plea of guilty. That date was almost sixteen months after Bye was

       Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 9 of 13
       charged and eleven months after the initial date for his jury trial. During this

       time, the State was required to provide discovery to Bye, to respond to and

       provide witnesses for depositions paid for with public funds, and seek a

       protective order to prevent J.C.’s deposition from being distributed to anyone

       other than the State and the defense. While Bye’s plea was not literally entered

       on the eve of trial, significant resources were dedicated to the prosecution of his

       case for more than a year before he entered his guilty plea. Moreover, the

       State’s evidence against Bye was significant. Two officers discovered Bye at the

       park in a compromising position with J.C. J.C. and Mother both stated that

       Bye knew J.C. was fifteen years old, and Bye, himself, admitted that he knew

       J.C. was fifteen. J.C. reported to officers that Bye had penetrated her vagina

       with his finger, and when confronted, Bye admitted having committed that act.

       Simply put, Bye held out, and when he faced a looming trial with substantial

       evidence against him, he made a pragmatic decision to plead guilty. Bye has

       not persuaded us that the trial court abused its discretion by failing to identify

       his guilty plea as a mitigating factor.


                                    II. Inappropriate Sentence
[16]   Bye next argues that his sentence is inappropriate. Under Indiana Appellate

       Rule 7(B), we “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, [this C]ourt finds that the sentence is

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

       offender.” See Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). The

       question under Appellate Rule 7(B) is not whether another sentence is more

       Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 10 of 13
       appropriate; rather, the question is whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the

       defendant’s burden on appeal to persuade the reviewing court that the sentence

       imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,

       133 (Ind. Ct. App. 2012), trans. denied.


[17]   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 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.


[18]   In reviewing the appropriateness of a sentence, our Supreme Court has

       “decline[d] to narrowly interpret the word ‘sentence’ in Appellate Rule 7 to

       constrict appellate courts to consider only the appropriateness of the aggregate

       length of the sentence without considering also whether a portion of the

       sentence is ordered suspended or otherwise crafted using any of the variety of

       sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010); see Marley v. State, 17 N.E.3d 335, 339 (Ind. Ct. App.

       2014) (quoting Davidson, 926 N.E.2d at 1025 (under Appellate Rule 7(B) we do

       not consider only appropriateness of aggregate length of sentence, but also

       whether part of sentence is suspended), trans. denied. Here, the trial court

       Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 11 of 13
       suspended a portion of Bye’s sentence and placed him on probation for five

       years. Accordingly, while Bye questions whether his fifteen-year sentence is

       inappropriate, the issue before us is more correctly stated as whether his fifteen

       year sentence with ten years executed and five years suspended to probation is

       inappropriate.


[19]   The advisory sentence for the class of crimes to which the offense belongs is the

       starting point for the court’s consideration of what sentence is appropriate for

       the crime committed. Weiss v. State, 848 N.E.2d 1070, 1072 (Ind. 2006). At the

       time the offense was committed, our General Assembly had classified sexual

       misconduct with a minor, involving a child over the age of fourteen and under

       the age of sixteen and an accused over the age of twenty-one, as a Class B

       felony. Ind. Code § 35-42-4-9(a)(1). The advisory sentence for a Class B felony

       is ten years, with a maximum sentence of twenty years and a minimum

       sentence of six years. Ind. Code § 35-50-2-5. Bye’s executed sentence of ten

       years was the advisory sentence for a Class B felony.


[20]   Addressing the nature of the offense, Bye contends that he admitted that he

       fondled and “performed sexual deviate conduct on J.C., who was fifteen at the

       time.” Appellant’s Br. at 21. Even so, he maintains that this was not “a lengthy

       course of molestation.” Id. He further maintains that he was not in a position

       of trust or authority over J.C. While the length of the molestation and the

       position of trust or authority may be used by a trial court as aggravators, we are

       not persuaded that the lack of those same factors can be used to mitigate Bye’s

       crime. See Ind. Code § 35-38-1-7.1 (setting forth mitigating and aggravating

       Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 12 of 13
       circumstances that may be considered during sentencing). As the State points

       out, Bye, who had a daughter the same age as J.C., found J.C. via Facebook,

       ingratiated himself with Mother, and at the age of forty digitally penetrated

       fifteen-year-old J.C.’s vagina. Bye has not convinced this court that a ten-year

       executed sentence is inappropriate in light of the nature of the offense.


[21]   Addressing his character, Bye contends that his sentence was inappropriate

       because his criminal history was not significant. Citing to his sole Class D

       felony conviction for neglect of a dependent, Bye admits that the conviction

       does “not reflect well on [him],” but argues that it was not a grave offense nor

       was it connected to sexual misconduct with a minor or any other sex crimes.”

       Appellant’s Br. at 21. The State counters that, although Bye’s first crime was not

       committed until he was thirty-nine years old, it is significant that he committed

       the second felony, of increasing severity, about nine months after he was

       convicted for felony neglect. The State also recognizes that Bye was on

       probation at the time he committed the instant offense, which is listed as a

       circumstance that allows a trial court to impose an aggravated sentence. I.C. §

       35-38-1-7.1(a)(6). We are not persuaded that Bye’s sentence was inappropriate

       in light of the character of the offender.


[22]   Here, the trial court did not abuse its discretion when it sentenced Bye.

       Moreover, Bye’s sentence is not inappropriate in light of the nature of the

       offense and the character of the offender. Affirmed.


       Najam, J., and Barnes, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1504-CR-141 | December 17, 2015   Page 13 of 13
