MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Feb 15 2017, 9:35 am
this Memorandum Decision shall not be
                                                                            CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Clingerman,                                       February 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1608-CR-1955
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1604-F4-12



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017        Page 1 of 9
                                          Case Summary
[1]   Joseph Clingerman (“Clingerman”) pled guilty to one count of Sexual

      Misconduct with a Minor, as a Level 4 felony.1 The trial court subsequently

      sentenced him to the advisory term of six years of imprisonment, with four

      years suspended to probation. Clingerman now appeals, challenging his

      sentence.


[2]   We affirm.



                                                    Issues
[3]   Clingerman presents two issues for our review, which we restate as:

                   I.     Whether the trial court abused its discretion in finding
                          aggravating and mitigating factors at sentencing; and


                  II.     Whether the sentence is inappropriate under Appellate
                          Rule 7(B).


                               Facts and Procedural History
[4]   Clingerman, then twenty-two years of age, initiated an online relationship with

      a fourteen-year-old girl (“Victim”). After online chats, the two agreed to meet

      and engage in sexual intercourse. Between February 15, 2016 and March 31,




      1
          Ind. Code 35-42-4-9(a).


      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017   Page 2 of 9
      2016, Clingerman and Victim had sexual intercourse twice—once in Armstrong

      Park in Lafayette, and once in Victim’s friend’s garage, also in Lafayette. 2


[5]   A warrant for Clingerman’s arrest was issued on April 13, 2016, and

      Clingerman was arrested soon thereafter. Also on April 13, 2016, the State

      charged Clingerman with two counts of Sexual Misconduct with a Minor, as

      Level 4 felonies.


[6]   On June 27, 2016, Clingerman and the State entered into a plea agreement

      whereby Clingerman agreed to plead guilty to one count of Sexual Misconduct

      with a Minor, as a Level 4 felony, in exchange for which the State would move

      to dismiss the other count. The agreement was open as to Clingerman’s

      sentence. The trial court accepted the plea agreement and ordered that a

      presentence investigation be conducted.


[7]   A sentencing hearing was conducted on August 1, 2016. The court entered

      judgment against Clingerman and, at the hearing’s conclusion, sentenced

      Clingerman to six years of imprisonment, with two years executed in the

      Department of Correction and four years suspended to probation.


[8]   This appeal ensued.




      2
       Although he pled guilty only to one count, Clingerman admitted during the presentence investigation to
      having twice engaged in sexual intercourse with Victim.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017        Page 3 of 9
                                  Discussion and Decision
                                  Aggravators and Mitigators
[9]    Clingerman’s first contention on appeal is that the trial court abused its

       discretion in finding aggravating and mitigating factors at sentencing.


[10]   Our supreme court has held:

               [T]he imposition of sentence and the review of sentences on
               appeal should proceed as follows:


               1. The trial court must enter a statement including reasonably
               detailed reasons or circumstances for imposing a particular
               sentence.


               2. The reasons given, and the omission of reasons arguably
               supported by the record, are reviewable on appeal for abuse of
               discretion.


               3. The relative weight or value assignable to reasons properly
               found or those which should have been found is not subject to
               review for abuse.


               4. Appellate review of the merits of a sentence may be sought on
               the grounds outlined in Appellate Rule 7(B).


       Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007).


[11]   We review sentencing decisions for an abuse of discretion. Id. at 490. While a

       trial court may abuse its discretion by issuing a sentencing statement that

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017   Page 4 of 9
       “omits reasons that are clearly supported by the record and advanced for

       consideration,” a trial court can no longer “be said to have abused its discretion

       in failing to ‘properly weigh’ such factors.” Id. (quoting Jackson v. State, 729

       N.E.2d 147, 155 (Ind. 2000); Morgan v. State, 675 N.E.2d 1067, 1073-74 (Ind.

       1996)). Where the trial court has abused its discretion, “we have the option to

       remand to the trial court for a clarification or new sentencing determination,”

       or “we may exercise our authority to review and revise the sentence.”

       Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).


[12]   Indiana Code section 35-38-1-7.1 sets forth non-exhaustive lists of

       circumstances that may be considered in aggravation and mitigation of a

       criminal sentence, and trial courts may consider additional factors in

       determining a sentence. Phelps v. State, 914 N.E.2d 283, 292 (Ind. Ct. App.

       2009). “It is well-settled that a single aggravating factor is sufficient to warrant

       an enhanced sentence.” Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App.

       2013). “When a sentencing court improperly applies an aggravating

       circumstance, but other valid aggravating circumstances do exist, a sentence

       enhancement may still be upheld.” Id.


[13]   Here, Clingerman challenges numerous of the aggravating factors found at

       sentencing, and contends that the trial court improperly disregarded mitigating

       factors. Clingerman observes that one of the two offenses for which he was

       charged was dismissed, and thus the court could not consider that dismissed

       charge in aggravation. Clingerman cites Farmer v. State, 772 N.E.2d 1025 (Ind.

       Ct. App. 2002), for the proposition that a trial court abuses its discretion when

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017   Page 5 of 9
       it takes into account facts supporting charges that were dismissed as a result of a

       plea agreement, because harsher sentencing on the basis of these facts would

       preclude receiving “the full benefit of his guilty plea.” Id. at 1027. Farmer is no

       longer good law. Specifically addressing the line of cases that includes Farmer,

       the Indiana Supreme Court in Bethea v. State held that where a plea agreement

       called for the dismissal of certain counts and provided for an open plea, “it is

       not necessary for a trial court to turn a blind eye to the facts of the incident that

       brought the defendant before them.” 983 N.E.2d 1134, 1145 (Ind. 2013).


[14]   During the presentence investigation, Clingerman admitted to having twice

       engaged in sexual intercourse with Victim. As announced by the Bethea Court,

       where a defendant enters into a plea agreement with an open term as to

       sentencing he receives the benefit of his bargain upon the bargained-for

       dismissal of the charges. Id. Clingerman did not bargain for a sentencing

       procedure that required the trial court to disregard circumstances of his second

       offense relevant to sentencing, and trial courts are not required to do so. See id.

       We accordingly find no error in the trial court’s finding as an aggravating

       circumstance Clingerman’s admission to having committed the same act upon

       the same victim on multiple occasions.


[15]   Even if Clingerman is correct that one or more aggravating factors were

       erroneous, we may proceed to exercise our independent review under Appellate

       Rule 7(B). See Windhorst, 868 N.E.2d at 507. In doing so, we note that

       Clingerman did not receive an enhanced sentence of any type. He received a

       six-year term—the statutory advisory sentence for a Level 4 felony. Even one

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017   Page 6 of 9
       valid aggravating factor can support an enhanced sentence, and a valid

       aggravating factor did exist, but Clingerman did not receive any form of

       enhanced sentence.3 In other words, Clingerman’s argument that his advisory

       sentence was somehow inappropriately aggravated amounts to a request that

       we reassess “the relative weight or value assignable” to aggravating and

       mitigating circumstances. Anglemyer, 868 N.E.2d at 491. We cannot entertain

       that argument. See id.


                                         Appellate Rule 7(B)
[16]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which provides: “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.” Under this rule, and as

       interpreted by case law, appellate courts may revise a sentence after due

       consideration of the trial court’s decision, if the sentence is found to be

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

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,




       3
         Because Clingerman’s sentence was at the advisory level, we cannot conclude that there is merit to his
       contention that his imprisonment for Sexual Misconduct with a Minor is an unconstitutional imprisonment
       for failure to pay a debt.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017       Page 7 of 9
       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[17]   Here, Clingerman was convicted of Sexual Misconduct with a Minor, as a

       Level 4 felony. The sentencing range for a Level 4 felony runs from two to

       twelve years, with an advisory term of imprisonment of six years. I.C. § 35-50-

       2-5.5. The trial court sentenced Clingerman to an advisory term, and

       suspended four of the six years to probation.


[18]   Clingerman pled guilty to one count of Sexual Misconduct with a Minor. He

       encountered Victim, a fourteen-year-old girl, through an online chat service.

       After Victim suggested they meet for sex, Clingerman initially resisted, but

       eventually agreed. Clingerman met Victim at a public park, after which they

       had sexual intercourse. Clingerman remained in contact with Victim, and then

       met Victim again at a friend of Victim’s house and had sexual intercourse

       again. Prior to both occasions, Clingerman had misgivings because he knew

       Victim’s age; after the first incident, Clingerman agreed to meet for sex a second

       time because he was not caught the first time.


[19]   As to Clingerman’s character, we observe that he pled guilty, has no prior

       criminal history and no history of substance abuse, and expressed some level of

       regret at having committed the instant offense. Clingerman’s family

       background is troubled, and includes abuse and having been a CHINS during

       his teenage years. Clingerman is a high school graduate, remained employed

       from 2014 to 2016 at a series of jobs, and reported having a stable income while


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017   Page 8 of 9
       he was employed. Clingerman attended college, but did not complete a degree.

       Clingerman had a daughter out of wedlock, had incurred a child-support

       payment of around $370 per month, and at the time of his conviction was

       $3,335.94 in arrears on the support obligation. (Ex. 1.) He has been diagnosed

       with Attention Deficit Disorder and had been prescribed medication for the

       condition in the past, but had not received treatment for several years.


[20]   Having reviewed the record, we conclude that in light of the nature of

       Clingerman’s offense and his character, his sentence is not inappropriate.



                                               Conclusion
[21]   The trial court’s finding of aggravators and mitigators was not an abuse of

       discretion, and Clingerman’s sentence is not inappropriate.


[22]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-CR-1955 | February 15, 2017   Page 9 of 9
