MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Dec 07 2018, 8:57 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph R. Keller,                                        December 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-481
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael S.
Appellee-Plaintiff                                       Bergerson, Judge
                                                         Trial Court Cause No.
                                                         46D01-1407-F3-20



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-481 | December 7, 2018                Page 1 of 5
[1]   Joseph R. Keller appeals following his conviction of Level 4 felony child

      molesting. 1 He argues his ten-year sentence is inappropriate. We affirm.



                                Facts and Procedural History
      On July 23, 2014, Keller, his girlfriend, his sister, and his twelve-year-old cousin

      S.K. were watching television at the home of Keller’s parents, where Keller

      lived. S.K. was a frequent guest at Keller’s home, visiting approximately once a

      week. At one point, Keller’s sister and his girlfriend left the house, leaving

      Keller and S.K. alone. While they were gone, Keller began to rub S.K.’s

      stomach. Keller then moved his hand under S.K.’s clothes and began to rub her

      vagina.


      S.K. immediately reported the incident to the police. Keller was charged with

      Level 3 felony child molesting 2 and Level 4 felony child molesting. Keller

      pleaded guilty to Level 4 felony child molesting. The trial court imposed a

      sentence of ten years, with three years suspended to probation. Keller is

      classified a Sexually Violent Offender under Indiana Code section 35-38-1-7.5

      and is required to register with local law enforcement for life.



                                     Discussion and Decision



      1
          Ind. Code § 35-42-4-3(b) (2014).
      2
          Ind. Code § 35-42-4-3(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-481 | December 7, 2018   Page 2 of 5
[2]   Keller argues his sentence is inappropriate in light of his character and the

      nature of his offense.


              We “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).
              “Although appellate review of sentences must give due
              consideration to the trial court’s sentence because of the special
              expertise of the trial bench in making sentencing decisions,
              Appellate Rule 7(B) is an authorization to revise sentences when
              certain broad conditions are satisfied.” Shouse v. State, 849
              N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
              quotation marks omitted). “[W]hether we regard a sentence as
              appropriate at the end of the day turns on our sense of the
              culpability of the defendant, the severity of the crime, the damage
              done to others, and myriad other factors that come to light in a
              given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
              In addition to the “due consideration” we are required to give to
              the trial court’s sentencing decision, “we understand and
              recognize the unique perspective a trial court brings to its
              sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
              (Ind. Ct. App. 2007).


      Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

      denied. The appellant bears the burden of demonstrating his sentence is

      inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

      trans. denied.

[3]   When considering the nature of the offense, the advisory sentence is the starting

      point for determining the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-481 | December 7, 2018   Page 3 of 5
      sentence for a Level 4 felony is a fixed term between two and twelve years, with

      the advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014). The trial

      court sentenced Keller to ten years; thus, he received a sentence above the

      advisory but below the maximum.


[4]   Regarding the nature of the offense, the trial court notes Keller was in a

      position of trust with S.K. S.K. was twelve, was his cousin, often visited

      Keller’s house, and attended family functions with him. Keller’s violation of a

      position of trust makes his crime more egregious, justifying a sentence greater

      than the advisory. See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App.

      2009) (defendant violating position of trust with victim allowed for an enhanced

      sentence), trans. denied.


[5]   When considering the character of the offender, one relevant fact is the

      defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

      App. 2013). Keller has a minimal criminal history and no history of violence.

      Keller also claims he has a history of mental illness and has shown remorse for

      his actions. However, Keller refused to take full responsibility for his actions

      and partially blamed his victim for the assault, which suggests his character

      needs rehabilitation. See Boling v. State, 982 N.E.2d 1055 1061-62 (Ind. Ct. App.

      2013) (defendant placing blame on victim showed poor character and allowed

      for aggravated sentence).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-481 | December 7, 2018   Page 4 of 5
[6]   Given the nature of the offense, i.e., Keller abusing a position of trust, and the

      character of the offender, i.e., Keller blaming his victim and refusing to take full

      responsibility, we cannot say Keller’s ten-year sentence is inappropriate. See id.



                                              Conclusion
[7]   In light of Keller’s character and the nature of his offense, his ten-year sentence

      is not inappropriate. Accordingly, we affirm.


[8]   Affirmed.


      Baker, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-481 | December 7, 2018   Page 5 of 5
