      MEMORANDUM DECISION
                                                                                   FILED
      Pursuant to Ind. Appellate Rule 65(D),                                  Mar 22 2017, 10:05 am

      this Memorandum Decision shall not be                                        CLERK
                                                                               Indiana Supreme Court
      regarded as precedent or cited before any                                   Court of Appeals
                                                                                    and Tax Court
      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
      Steven E. Ripstra                                        Curtis T. Hill, Jr.
      Ripstra Law Office                                       Attorney General of Indiana
      Jasper, Indiana                                          Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Ronald L. Tolliver,                                      March 22, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               63A05-1610-CR-2321
              v.                                               Appeal from the Pike Circuit Court
                                                               The Honorable Jeffrey L.
      State of Indiana,                                        Biesterveld, Judge
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               63C01-1604-F5-250



      Mathias, Judge.


[1]   Ronald L. Tolliver (“Tolliver”) pleaded guilty in Pike Circuit Court to Level 5

      felony child solicitation and was sentenced to the advisory term of three years

      of incarceration. Tolliver appeals and presents two issues for our review, which

      Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017            Page 1 of 9
      we restate as: (1) whether the trial court abused its discretion when it failed to

      consider certain circumstances as mitigating, and (2) whether Tolliver’s three-

      year sentence is inappropriate in light of the nature of the offense and the

      character of the offender.

[2]   We affirm.


                                 Facts and Procedural History

[3]   In late March 2016, Tolliver, who was then sixty-eight years old, participated in

      an internet chatroom for teenagers. In this chatroom, he started a chat

      conversation with “Maddie,” who identified herself as a thirteen-year-old girl.

      Maddie was actually a screen name used by Petersburg Police Department

      Sergeant Chad McClellan (“Officer McClellan”). Tolliver soon began to chat

      with Maddie about sexual topics. He asked Maddie if she masturbated and

      encouraged her to do so because it felt good. He also informed Maddie that he

      masturbated daily and had masturbated since he was eleven years old. Tolliver

      was concerned that Maddie’s mother might see their conversations and made

      sure that Maddie would not tell her mother about Tolliver’s chat. Tolliver

      eventually admitted to Maddie that he was sixty-eight years old and told

      Maddie that she could view him as a grandfather.


[4]   Nevertheless, Tolliver’s interest in Maddie was not paternal. He told her how to

      masturbate, crudely telling her where to find her clitoris. He also asked if she

      had small breasts and told her that he liked small breasts. Tolliver told Maddie

      that he loved her and that she was beautiful. Tolliver asked Maddie not to put

      Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 2 of 9
      on any underwear after showering and again encouraged her to masturbate.

      Tolliver also tried to get Maddie to videochat with him, but she told him that

      she did not have a camera on her phone. He then told her that he liked to be

      watched while masturbating and that she did not need a camera to watch him.

      He then sent her video of him masturbating.


[5]   On April 4, 2016, the State charge Tolliver with Level 5 felony child

      solicitation. On August 15, 2016, Tolliver pleaded guilty as charged. A

      sentencing hearing was held on September 6, 2016. At this hearing, Tolliver

      presented evidence that he was had been honorably discharged from the Army

      and had been fully employed. He had no criminal history and had health

      problems that resulted in the amputation of the lower portion of his right leg.

      He also had a bypass to save his right leg and a triple coronary bypass. Tolliver

      testified that his sister and forty-one-year-old son had recently died.

[6]   At the conclusion of the sentencing hearing, the trial court pronounced sentence

      as follows:


              The Court having considered the Pre[-]Sentence Investigation
              [report], having considered arguments of counsel and the
              evidence presented at this hearing. By way of aggravating factors,
              the Court finds that the IRAS assessment lists the defendant as a
              high risk to reoffend. IRAS, while everything else appears to be
              low, has a characterization concerning the nature and the
              circumstances of the particular offense. And that’s the reason for
              the high risk to reoffend here. The Court by mitigating
              circumstances, finds that the defendant has plead guilty, saved
              the Court’s time and resources. That he has no prior criminal
              history and has led a law-abiding life. So the Court considers

      Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 3 of 9
              then the circumstances of this particular case and the Court
              considers the Pre[-]Sentence [report] and all the factors listed,
              considered the character of the defendant, considered the
              defendant’s statement, in particularly, that while he accepted
              responsibility and plead guilty, he continues to blame the officer
              for what happened here. At the same time he knew that what he
              did was wrong and he’s an adult and he’s responsible for his
              actions. The Court tries to determine the appropriate sentence in
              the cause and finds that probation and community corrections in
              this case are not viable alternatives. And therefore the Court
              sentences the defendant as follows: to an advisory sentence of
              three (3) years in the Indiana Department of Corrections. The
              defendant will receive credit for a hundred fifty-three (153) actual
              days, from April 7, 2016 through September 6, 2016, for a total
              of a hundred fifty-three (153) days. And on a three (3) for one (1)
              good time, that’s fifty-one (51) good time credit days. The
              defendant is to register as a sex offender.


      Tr. pp. 91-92. Tolliver now appeals.


                                     Discussion and Decision

[7]   Tolliver first argues that the trial court abused its discretion by failing to

      consider certain mitigating factors. We review a sentence that is within the

      statutory range only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

      482, 490 (Ind. 2007). The trial court abuses its discretion if its 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.” Id. A trial court abuses its discretion by: (1) failing to enter a

      sentencing statement, (2) finding aggravating or mitigating factors unsupported

      by the record, (3) omitting mitigating factors clearly supported by the record


      Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 4 of 9
       and advanced for consideration, or (4) giving reasons that are improper as a

       matter of law. Id. at 490-91. When considering aggravating and mitigating

       factors, the relative weight given to a factor is not available for appellate review.

       Id. at 493-94.


[8]    Tolliver claims that the trial court erred by failing to consider certain mitigating

       factors that he claims were clearly supported by the record, such as his health

       problems, military service, and lack of a criminal history. He also claims that

       the trial court abused its discretion by considering his IRAS score as an

       aggravator. However, even if we assume arguendo that Tolliver is correct and

       that the trial court did abuse its discretion in sentencing Tolliver, this would not

       require us to remand for resentencing.

[9]    Even if we conclude that a trial court has abused its discretion in sentencing, we

       will not remand for resentencing if the sentence imposed is not inappropriate.

       Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013), trans. denied; Williams

       v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013) (citing Windhorst v. State,

       868 N.E.2d 504, 507 (Ind. 2007)); Chappell v. State, 966 N.E.2d 124, 134 n.10

       (Ind. Ct. App. 2012), trans. denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind.

       Ct. App. 2007), trans. denied. As discussed in full below, Tolliver’s advisory

       sentence of three years is not inappropriate, and remand is therefore

       unnecessary.


[10]   Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by the trial court. Trainor v.


       Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 5 of 9
       State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing

       Anglemyer, 868 N.E.2d at 491). This authority is implemented through Indiana

       Appellate Rule 7(B), which provides that the court on appeal “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.”

[11]   Still, we must and should exercise deference to a trial court’s sentencing

       decision because Rule 7(B) requires us to give ‘due consideration’ to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions. Id. Although we have the power to

       review and revise sentences, the principal role of appellate review should be to

       attempt to “leven the outliers” and identify some guiding principles for trial

       courts and those charged with improvement of the sentencing statutes, but not

       to achieve what we perceive to be a “correct” result in each case. Fernbach v.

       State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell

       v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The appropriate question is not

       whether another sentence is more appropriate; rather, the question is whether

       the sentence imposed is inappropriate. Former v. State, 876 N.E.2d 340, 344

       (Ind. Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that

       the sentence imposed by the trial court is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).

[12]   Here, Tolliver pleaded guilty to committing a Level 5 felony. The minimum

       sentence for a Level 5 felony is one year, the maximum is six years, and the

       Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 6 of 9
       advisory sentence is three years. Ind. Code § 35-50-2-6(b). As noted above, the

       trial court here sentenced Tolliver to the advisory sentence of three years. Since

       the advisory sentence is the starting point our General Assembly has selected as

       an appropriate sentence for the crime committed, the defendant bears a

       particularly heavy burden in persuading us that his sentence is inappropriate

       when the trial court imposes the advisory sentence. Golden v. State, 862 N.E.2d

       1212, 1216 (Ind. Ct. App. 2007), trans. denied. This is a burden that Tolliver has

       failed to meet.


[13]   Considering the nature of the offense, Tolliver notes that there was no child

       victim in this case, as “Maddie” was actually an adult police officer. Be that as

       it may, Tolliver’s behavior, as detailed in the chat log, was particularly

       disturbing. His behavior toward what he thought was a thirteen-year-old girl

       was reprehensible. He attempted to befriend the child, telling her to consider

       him like a grandfather. He then encouraged the child to masturbate, asked what

       she was wearing, told her not to wear underwear, and asked her to send him

       photos of himself. Tolliver used a webcam to masturbate so that what he

       thought was a child could watch him. The nature of Tolliver’s offense does

       nothing to convince us that his advisory sentence was inappropriate.


[14]   Turning to the character of the offender, Tolliver notes that he had no criminal

       history. He also reemphasizes his health problems and his service in the Army.

       Despite his lack of a criminal history, however, Tolliver admitted at sentencing

       that this was not the first time he had done something of this nature. In fact, he

       admitted during the presentence investigation that he attempted to talk to

       Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 7 of 9
       underage girls online three to five times in the past three years. Tr. pp. 50-51;

       Appellant’s App. pp. 33. Despite his claims of remorse, Tolliver stated in his

       version of the offense that he was “led on” by Officer McClellan. This claim is

       belied by the chat log, which clearly shows that Tolliver was grooming what he

       believed to be a child to perform sexual acts. Certainly, Tolliver is not among

       the worst offenders. This is a reason why Tolliver was not sentenced to a term

       greater than the advisory sentence, but it is not a reason for us to revise his

       sentence to be below the advisory sentence.


[15]   Affirmed.


       Pyle, J., concur.

       Baker, J., concurs with a separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 8 of 9
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Ronald L. Tolliver,                                      Court of Appeals Case No.
                                                                63A05-1610-CR-2321
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.



       Baker, Judge, concurring.


[16]   I fully concur with the majority opinion. I write separately to note that, but for

       Tolliver’s ill-advised admission that this was not the first time he has done

       something of this nature, I would have been compelled to reduce his sentence

       below the advisory three-year term. He is a 68-year-old veteran who is an

       amputee and has recently lost his son and his sister. Were it not for his

       admission that he has committed this type of act before, I believe the advisory

       term would have been too high. On the record before us, however, I concur

       with the majority and agree that we should affirm.




       Court of Appeals of Indiana | Memorandum Decision 63A05-1610-CR-2321 | March 22, 2017   Page 9 of 9
