MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Oct 18 2018, 8:24 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                          CLERK
                                                                               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
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Dale Prgomelja,                                     October 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1300
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D. Murray,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G02-1705-FA-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018                  Page 1 of 5
                                            Case Summary
[1]   John Dale Prgomelja (“Prgomelja”) pleaded guilty to Child Molesting, as a

      Level 3 felony,1 and received an advisory sentence of nine years in the Indiana

      Department of Correction with one year suspended to probation. Prgomelja

      now appeals, arguing that his sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   The State charged Prgomelja with four counts of Child Molesting, charged as

      Class A, Level 1, Class C, and Level 4 felonies.2 Prgomelja entered a plea

      agreement with the State whereby the State would seek dismissal of the four

      counts and Prgomelja would instead plead guilty to Child Molesting, as a Level

      3 felony. The agreement provided for a maximum sentence of ten years.

      Attached to the agreement was a stipulated factual basis stating that, in July

      2016, Prgomelja molested his granddaughter—who was under the age of

      fourteen—at his residence by digitally penetrating a sex organ with his finger.


[3]   A plea hearing was held in March 2018, at which (1) the State filed an amended

      charging information that contained the Level 3 felony count; (2) Prgomelja

      pleaded guilty to that count pursuant to the agreement; and (3) the trial court




      1
          Ind. Code § 35-42-4-3(a).
      2
       All of these felonies were charged under either Indiana Code Section 35-42-4-3(a)(1) or Indiana Code
      Section 35-42-4-3(b), although the Class A and Class C felony counts concerned allegations of conduct
      occurring prior to July 1, 2014, thereby falling under a different statutory framework.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018                Page 2 of 5
      took the plea under advisement. A sentencing hearing was held, and the trial

      court accepted the plea, dismissed the remaining counts, and imposed an

      executed sentence of nine years with one year suspended to probation.


[4]   Prgomelja now appeals.



                                 Discussion and Decision
[5]   Pursuant to Article 7 of the Indiana Constitution, as implemented by Indiana

      Appellate Rule 7(B), 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.” Ind. Appellate Rule 7(B). The appropriateness of a

      sentence turns on “myriad . . . factors that come to light in a given case.”

      Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Moreover, the question is

      not whether a different sentence would be more appropriate; the question is

      whether the sentence imposed is inappropriate. Helsley v. State, 43 N.E.3d 225,

      228 (Ind. 2015). As “sentencing is principally a discretionary function,”

      Cardwell, 895 N.E.2d at 1222, we must give considerable deference to the

      court’s decision—and that deference “should prevail unless overcome by

      compelling evidence portraying in a positive light the nature of the offense (such

      as accompanied by restraint, regard, and lack of brutality) and the defendant’s

      character (such as substantial virtuous traits or persistent examples of good

      character),” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately, the



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018   Page 3 of 5
      principal role of our review “is to attempt to leaven the outliers.” McCain v.

      State, 88 N.E.3d 1066, 1067 (Ind. 2018) (per curiam).


[6]   Regarding the offense, Prgomelja received the advisory sentence of nine years.

      See I.C. § 35-50-2-5 (providing that the sentencing range for a Level 3 felony is

      between three years and sixteen years, with an advisory sentence of nine years).

      Because the advisory sentence is the starting point that the legislature “has

      selected as an appropriate sentence for the crime committed,” Childress v. State,

      848 N.E.2d 1073, 1081 (Ind. 2006), the appellant “bears a particularly heavy

      burden in persuading us that his sentence is inappropriate when the trial court

      imposes the advisory sentence,” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.

      Ct. App. 2011), trans. denied.


[7]   In seeking appellate revision of his sentence, Prgomelja does not argue—nor do

      we discern—anything about the nature of this offense that warrants a different

      sentence. Prgomelja instead attempts to portray his character in a positive light.

      Prgomelja—seventy-six years old at the time of sentencing—focuses much of

      his brief on his “advanced age and deteriorating health,” Br. of Appellant at 7,

      but these are not virtuous character attributes indicative of an inappropriate

      sentence under Appellate Rule 7(B). Prgomelja otherwise directs us to his lack

      of prior contacts with the criminal justice system, his military service, and the

      letters of support from his son and pastor. Prgomelja also notes that he was

      willing to pay $300 per month toward his granddaughter’s ongoing therapy

      bills—yet, she requires therapy because Prgomelja chose to betray a position of

      trust. Furthermore, to the extent Prgomelja asserts that his decision to plead

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018   Page 4 of 5
      guilty reflects an acceptance of responsibility and conferred a benefit to both the

      victim and the State, we note that Prgomelja received a substantial benefit in

      return. Moreover, although Prgomelja directs our attention to his apology at

      the sentencing hearing, the trial court—standing in a better position to evaluate

      credibility—stated that it did not believe his apology “for a moment.” Tr. at 43.


[8]   Prgomelja has not persuaded us that the advisory sentence is inappropriate.3


[9]   Affirmed.


      Mathias, J., and Bradford, J., concur.




      3
       Prgomelja asserts that, in its briefing, the State improperly drew upon information set forth in the probable
      cause affidavit. We do not address this contention as we have not considered the probable cause affidavit.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1300 | October 18, 2018                    Page 5 of 5
