Pursuant to Ind. Appellate Rule 65(D),

                                                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                                Apr 04 2012, 9:17 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                        CLERK
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ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                                GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RYAN S. SHEARER,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )      No. 92A04-1108-CR-405
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE WHITLEY CIRCUIT COURT
                          The Honorable James R. Heuer, Judge
                            Cause No. 92C01-1102-FB-00016


                                         April 4, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

       Ryan Shearer appeals his advisory sentence of ten years, with two years suspended

to probation, for Class B felony sexual misconduct with a minor. Ind. Code § 35-42-4-9

(2007). We affirm.

                                          ISSUES

       Shearer raises two issues, which we restate as:

       I.     Whether the trial court abused its discretion in sentencing Shearer.

       II.    Whether Shearer’s sentence is inappropriate.

                        FACTS AND PROCEDURAL HISTORY

       In February 2011, Shearer, who was twenty-two years old, was seeing fifteen-

year-old M.H. without her family’s knowledge. One night, Shearer picked up M.H. from

her brother’s home, drove her to Columbia City, and engaged in sexual acts with her.

       The State charged Shearer with Class B felony sexual misconduct with a minor.

Shearer pleaded guilty without the benefit of a plea agreement.          At the sentencing

hearing, the trial court identified the following aggravators: (1) his criminal history; (2)

his history of substance abuse; (3) his sporadic employment history; and (4) the impact of

his offense on M.H. In addition, the trial court identified the following mitigators: (1) his

education; (2) his physical condition and mental health, which were affected by a car

accident he was involved in when he was sixteen; and (3) his statement of remorse. The

trial court found that Shearer “needs treatment” and that “the Department of Correction[]

is the best option for that treatment.” Tr. p. 10. The court imposed the advisory sentence

of ten years, with two years suspended to probation. Shearer now appeals his sentence.

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                             DISCUSSION AND DECISION

                               I. ABUSE OF DISCRETION

       Shearer contends that the trial court abused its discretion in sentencing him.

Specifically, he argues that the trial court improperly used his history of substance abuse,

his sporadic employment history, and victim impact as aggravators and should have

found his guilty plea as a mitigator.

       Subject to the review and revision power discussed below, sentencing decisions

rest within the sound discretion of the trial court and are reviewed on appeal only for an

abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218 (2007). An abuse of discretion occurs if the 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 when it: (1) fails to enter a sentencing statement; (2) enters a

sentencing statement that includes reasons that are unsupported by the record; (3) enters a

sentencing statement that omits reasons that are clearly supported by the record and

advanced for consideration; or (4) enters a sentencing statement that includes reasons that

are improper as a matter of law. Id. at 490-91. If a trial court abuses its discretion in

sentencing, “remand for resentencing may be the appropriate remedy if we cannot say

with confidence that the trial court would have imposed the same sentence had it properly

considered reasons that enjoy support in the record.” Id. at 491.

       Shearer argues that the record does not support the trial court’s finding of

substance abuse as an aggravator. Shearer was convicted of misdemeanor minor in

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possession in 2008 when he binged on thirteen shots and two beers to self-medicate his

depression. For that incident, he was ordered to obtain substance abuse counseling,

which he completed only after the court was notified of his noncompliance and found

him in contempt. The record also shows that Shearer has attempted to overdose at

different times with various medications. Based on this evidence, the trial court did not

abuse its discretion by finding his history of substance abuse as an aggravator.

       Shearer next argues that sporadic employment is an improper aggravator and is, in

any event, unsupported by the record.        We agree that sporadic employment is an

improper aggravator. In Fredrick v. State, 755 N.E.2d 1078 (Ind. 2001), the trial court

found as one aggravator that the defendant was a drug dealer and not gainfully employed.

On appeal, the defendant argued that his lack of employment was an improper

aggravator. Our Supreme Court stated, “While lack of gainful employment alone is not

an aggravating circumstance, we believe the trial court’s language here indicates that it

properly considered Defendant’s drug dealing to be aggravating.” Id. at 1084-85. The

State highlights the Court’s use of the word “alone” and asks us to construe Fredrick as

permitting lack of employment as an aggravator when other aggravators exist.           In

Fredrick, however, our Supreme Court did not conclude that lack of employment was a

proper aggravator.     Instead, the Court concluded that although lack of gainful

employment was not a proper aggravator, drug dealing was. Here, the trial court found

Shearer’s sporadic employment history to be a discrete aggravator. Pursuant to Fredrick,

this was improper as a matter of law.



                                             4
       Shearer also argues that the record does not support the trial court’s finding of

victim impact as an aggravator. “Victim impact is an aggravating circumstance only if it

is demonstrated that the crime had destructive impact not normally associated with the

offense.” Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005). Shortly before

sentencing, M.H. and her mother submitted letters expressing the emotional impact of

Shearer’s offense on M.H. and how it had taken a toll on M.H.’s relationships with

family and friends. For a period of time, M.H.’s grades had fallen, she could not sleep,

and she did not want to go to school. M.H. was in counseling, taking medication for

anxiety and depression, and less trusting of people. While we recognize the terrible

effects Shearer’s offense has had on M.H., the record does not reveal a destructive impact

not normally associated with Class B felony sexual misconduct with a minor. Nor does

the State point to any. We therefore conclude that the trial court abused its discretion by

finding victim impact as an aggravator. See Smith v. State, 770 N.E.2d 818, 821-22 (Ind.

2002) (impact on murder victim’s three-year-old son improper aggravator because impact

on family members accompanies almost every murder and trial court did not articulate

how impact was any different from that normally associated with offense).

       Shearer finally argues that the trial court should have found his guilty plea as a

mitigator. A defendant who pleads guilty deserves some mitigating weight to be afforded

to the plea. Anglemyer, 875 N.E.2d at 220 (citing McElroy v. State, 865 N.E.2d 584, 591

(Ind. 2007)). However, a trial court does not necessarily abuse its discretion by failing to

recognize a defendant’s guilty plea as a significant mitigating circumstance. See id. at

220-21. A guilty plea does not rise to the level of significant mitigation where the

                                             5
defendant has received a substantial benefit from the plea or where the evidence against

the defendant is such that the decision to plead guilty is more likely the result of

pragmatism than acceptance of responsibility and remorse. Id. at 221. Here, Shearer did

not receive a substantial benefit in return for his guilty plea. However, the police report,

which was part of the probable cause affidavit, reflected Shearer’s admission that he had

intercourse with M.H., M.H.’s statement of his knowledge that she was fifteen and their

discussion of her age the night of the offense, and the collection of forensic evidence at

the scene. The case for the prosecution was strong. Shearer nonetheless argues that the

jury could have refused to find him guilty because of his age and disability. Perhaps, but

we are not persuaded. In light of the substantial evidence of Shearer’s guilt, his decision

to plead guilty was merely pragmatic. We conclude that the trial court did not abuse its

discretion by failing to find Shearer’s guilty plea as a mitigator.

       The trial court abused its discretion by finding sporadic employment and victim

impact as aggravators. We note, however, that Shearer was not given an enhanced

sentence. Instead, the trial court imposed the advisory sentence of ten years, with two

years suspended to probation. The proper aggravators and mitigators are adequate for an

advisory sentence and certainly do not compel a reduced sentence. We are thus confident

that the trial court would have imposed the same sentence had it not relied on sporadic

employment and victim impact as aggravators.

                            II. INAPPROPRIATE SENTENCE

       Shearer next contends that his advisory sentence of ten years is inappropriate.

Although a trial court may have acted within its lawful discretion in imposing a sentence,

                                              6
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate

review and revision of sentences through Indiana Appellate Rule 7(B), which provides

that a 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.” Reid v. State, 876 N.E.2d 1114,

1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of

persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006)). In assessing whether a sentence is inappropriate, appellate

courts may take into account whether a portion of the sentence is ordered suspended or

otherwise crafted using any of the variety of sentencing tools available to the trial judge.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       We first look to the statutory range established for the class of the offense.

Shearer pleaded guilty to a Class B felony. The statutory range for a Class B felony is

between six and twenty years, with the advisory sentence being ten years. Ind. Code §

35-50-2-5 (2005). Although the trial court sentenced Shearer to the advisory sentence of

ten years, two years were suspended to probation.

       We next look to the nature of the offense and Shearer’s character. As to the nature

of the offense, twenty-two-year-old Shearer took fifteen-year-old M.H. from her

brother’s home without her family’s knowledge, drove her to Columbia City, and

engaged in sexual acts with her. Shearer argues that if M.H. had been just a little older,

his conduct would not have been illegal. This is unpersuasive. Our legislature has set

parameters on what constitutes Class B felony sexual misconduct with a minor, and the

                                             7
fact that M.H.’s age was close to that parameter does not diminish the nature of the

offense.

       As to Shearer’s character, we recognize that the car accident has affected his life:

he has had multiple surgeries, has been diagnosed with post-traumatic stress disorder, has

poor impulse control, and has reported attempting suicide over thirty times. We also

acknowledge that he has a supportive family. Nevertheless, Shearer’s character reflects a

degree of lawlessness and disregard for others.           His criminal history includes

misdemeanor convictions for minor in possession, abandonment or neglect of an animal,

and receiving stolen property. Shearer has also entered into a Deferred Prosecution

Agreement for check deception and appeared for a violation of that agreement. The

presentence investigation report shows that a pretrial conference had been scheduled for

that matter.   Evaluations from the Bowen Center indicate that Shearer has shot a

neighbor’s dog and exhibited violent behavior toward his goat on the 4-H fairgrounds.

Shearer’s driver’s license has been suspended seven times, and he has thirteen

convictions on his driving record. As indicated above, Shearer has some substance abuse

issues. He has two children by two different women, and the presentence investigation

report shows that Shearer was behind on his child support payments and had no source of

income.

       Shearer’s accident has clearly had an impact on his life, but it does not excuse his

conduct or his character. Shearer has failed to persuade us that his advisory sentence of

ten years, with two years suspended to probation, is inappropriate.



                                            8
                                    CONCLUSION

      For the reasons stated, we affirm Shearer’s ten-year sentence.

      Affirmed.

DARDEN, J., and BARNES, J., concur.




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