MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Dec 03 2019, 9:12 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E. C. Leicht                                      Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General
Peru, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Abel,                                             December 3, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-806
        v.                                               Appeal from the
                                                         Howard Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Brant J. Parry, Judge
                                                         Trial Court Cause No.
                                                         34D02-1805-F4-151



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019                  Page 1 of 9
                                          Case Summary
[1]   Robert Abel contends that his five-year sentence for Level 5 felony sexual

      misconduct with a minor is inappropriate. We disagree and therefore affirm.



                            Facts and Procedural History
[2]   In September 2017, thirty-five-year-old Abel began communicating with

      fourteen-year-old A.G. The two began an online relationship, and Abel gave

      A.G. a “google watch and phone” on which he would send A.G. emails, texts,

      and photos. Tr. p. 9. One night in November 2017, Abel drove from his home

      in Bedford to A.G.’s home in Tipton County to pick up A.G. and take him

      back to Bedford. A.G.’s whereabouts remained unknown to his parents for

      almost two days. During this time, Abel and A.G. “had sexual intercourse.”

      Appellant’s App. Vol. II p. 12. Eventually, A.G. reported himself as a runaway

      in Bloomington, and police brought him home, where he was placed in

      residential treatment for four months. Police spoke with Abel about this

      incident, but it appears that he hasn’t been charged for it. A.G. was discharged

      from treatment on March 21, 2018.


[3]   About two months later, in the early morning hours of May 20, A.G.’s mother

      (“Mother”) confronted A.G. as he was trying to sneak out of their home.

      Mother told A.G. not to leave, but he did anyway. Mother followed A.G.

      outside, where she saw a car pull up. A.G. got into the car. Mother, standing

      in the road, “frantic[al]ly” waved at the car in order to stop it, but the car drove


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019   Page 2 of 9
      around her and left the area. Tr. p. 10. Mother got in her car and followed.

      After losing sight of the car, Mother started driving to different motels in the

      Kokomo area. Eventually, she found a car in the Super 8 motel parking lot that

      “she recognized as belonging to” Abel. Appellant’s App. Vol. II p. 12. While

      Mother was waiting at the motel’s front desk, Abel and A.G. walked into the

      lobby. Mother instructed the motel clerk to call 911. When police arrived, they

      removed a backpack from A.G. The backpack contained a “dildo,” “love

      cuffs,” multiple packages of lube, condoms, and a love note from Abel to A.G.

      Id. at 13. According to A.G., Abel gave him the items in his backpack, and the

      two had planned on “having sex.” Id. However, A.G. said that he and Abel

      were only in the motel room for a brief time (during which time they kissed)

      because Abel “began freaking out about going to jail because [Mother] was after

      them and told [A.G.] he was going to have to take him home and leave town.”

      Id. According to Abel, although he had planned on “hav[ing] sex” with A.G.,

      he only “rubbed [A.G.’s] genitals through his underwear while [A.G.] was

      aroused.” Id. In addition, Abel said that he gave A.G. a “promise ring” and

      told him that he would wait for him to turn eighteen to marry him. Id.


[4]   Thereafter, the State charged Abel with Level 4 felony child solicitation and

      Level 4 felony sexual misconduct with a minor. Abel was released on bond.

      When Abel failed to appear for a pretrial hearing in October 2018, the trial

      court issued a warrant for his arrest. Abel was arrested on the warrant in

      November.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019   Page 3 of 9
[5]   In January 2019, Abel and the State entered into a plea agreement under which

      Abel would plead guilty to Level 5 felony sexual misconduct with a minor, and

      the State would dismiss the other count. Sentencing was left to the discretion of

      the trial court.


[6]   According to the Presentence Investigation Report, the probation department

      recommended a three-year sentence, all suspended to probation with the

      requirement that Abel complete sex-offender counseling. Id. at 47. The PSI

      also noted that “[i]f the victim or his representative submits a victim impact

      statement or testifies in Court that they believe additional incarceration is

      appropriate, this office believes that should be in addition to the suspended time

      required to complete treatment.” Id. at 46. At the sentencing hearing, Mother

      testified about the “considerable damage” that Abel had caused to her son. Tr.

      p. 10. Specifically, Mother explained that A.G. was in “intensive therapy,

      group, individual, psychiatric care” to address the trauma. Id. at 11. Mother

      said that when A.G. “came out at twelve as gay,” neither she nor A.G.’s father

      “blinked an eye” but rather “greeted him with” the news. Id. at 12. However,

      Mother said that Abel then came along via “fiber optic cables and internet wi-

      fi” and convinced A.G. that “[he] alone could save and love him,” thereby

      “warp[ing]” A.G.’s sense of identity. Id. at 11, 12. Mother asked the trial court

      to impose the “strongest possible sentence.” Id. at 11. Defense counsel,

      however, asked the trial court to sentence Abel in accordance with the

      probation department’s recommendation in the PSI, as “D.O.C. time” wasn’t

      necessary for Abel’s rehabilitation. Id. at 14.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019   Page 4 of 9
[7]    The trial court identified three aggravators: (1) the harm or injury suffered by

       A.G. was “significant”; (2) Abel engaged in “repeated attempts” to see A.G.,

       even after he “had already been called out on it” for the November 2017

       incident; and (3) Abel violated the terms of his pretrial release by failing to

       appear at a pretrial hearing. Id. at 14-15. The trial court identified as

       mitigators that Abel pled guilty and had no criminal history. However, the

       court did not accord either mitigator much weight because Abel received a

       “benefit” from his guilty plea and because having no criminal history wasn’t

       unusual for sexual predators as “the first time a sexual predator is caught, is

       when they are caught being a predator.” Id. at 15. The trial court sentenced

       Abel to five years, all executed.


[8]    Abel now appeals his sentence.



                                 Discussion and Decision
[9]    Abel contends that his five-year executed sentence is inappropriate and asks us

       to revise it to the sentence recommended in the PSI: three years suspended to

       probation with sex-offender counseling.


[10]   Indiana Appellate Rule 7(B) provides that an appellate 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.” “The court’s role under Rule

       7(B) is to ‘leaven the outliers,’ and we reserve our 7(B) authority for exceptional


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019   Page 5 of 9
       cases.” Faith v. State, 131 N.E.3d 158, 159-60 (Ind. 2019) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Because we generally defer to the

       judgment of trial courts in sentencing matters, defendants have the burden of

       persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

       1041, 1044-45 (Ind. Ct. App. 2016).


[11]   The sentencing range for a Level 5 felony is one to six years, with an advisory

       sentence of three years. Ind. Code § 35-50-2-6. Here, the trial court sentenced

       Abel to five years.


[12]   Abel makes no argument about the nature of the offense. While the nature of

       the sexual contact that occurred in the motel room is not particularly egregious,

       it is what happened immediately before Abel and A.G. arrived at the motel that

       is so disturbing. Under the cover of night, Abel, a mere two months after A.G.

       was released from treatment, drove from Bedford to Tipton County to pick up

       A.G. When Mother heard A.G. sneaking out of their home, she followed him

       outside, where Abel was waiting in his car. When A.G. got in Abel’s car,

       Mother stood in the road and frantically waved her arms; Abel, however, drove

       around Mother. Mother followed them in her car and eventually found them at

       the Super 8 motel.


[13]   As for Abel’s character, he notes that he is thirty-seven-years-old “with NO

       criminal history.” Appellant’s Br. p. 7. What he means, of course, is that he

       doesn’t have any prior convictions. According to the probable-cause affidavit,

       which Abel stipulated to at sentencing, see Tr. p. 7, in November 2017 he and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019   Page 6 of 9
       fourteen-year-old A.G. “had sexual intercourse,” Appellant’s App. Vol. II p.

       12. According to Mother, Abel was still under investigation for the November

       2017 incident when he went to A.G.’s house in May 2018.1 In addition, as the

       trial court noted, Abel violated the terms of his pretrial release by failing to

       appear at a pretrial hearing.


[14]   Given Abel’s brazen conduct of meeting up with A.G. after the November 2017

       incident and after A.G.’s four months in residential treatment, he has failed to

       persuade us that his five-year sentence is inappropriate.


[15]   Affirmed.


       Riley, J., dissents with separate opinion.


       Bradford, J., concurs.




       1
           The record does not reveal if this incident is still being investigated.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019   Page 7 of 9
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Robert Abel,                                             Court of Appeals Case No.
                                                                19A-CR-806
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge dissenting


[16]   I respectfully dissent from the majority’s decision, affirming Abel’s sentence.

       While the probation department recommended a three-year sentence,

       suspended to probation, coupled with sex-offender counseling, the trial court

       sentenced Abel to a five-year executed sentence.


[17]   Although the record is replete with evidence that Abel is at moderate risk to

       reoffend and would benefit from a suspended sentence and counseling, the trial

       court, after hearing Mother’s testimony about the damage Abel caused to her

       son, imposed an executed sentence without any probation or treatment. In its

       opinion, the majority quotes at length from Mother’s testimony, reflecting the

       need for treatment for the victim, while at the same time, the trial court—
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019      Page 8 of 9
       affirmed by the majority—actively rejects a similar request for treatment for the

       offender made by the probation department.


[18]   Given the “not particularly egregious” nature of the offense and the absence of

       any criminal history, I would reverse the trial court’s decision and remand the

       case with instructions to sentence Abel in accordance with the probation

       department’s recommendation. (Slip op. p. 6). Notwithstanding society’s valid

       concerns with protecting itself, the criminal justice system must afford an

       opportunity for rehabilitation where reasonably possible.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-806 | December 3, 2019   Page 9 of 9
