MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Feb 16 2017, 6:41 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Theron Hunter,                                           February 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         69A04-1608-CR-1792
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Sharp,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         69C01-1601-F5-3



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017   Page 1 of 7
                                                 Case Summary
[1]   Theron Hunter pled guilty to level 5 felony failure to register as a sex offender

      with a prior conviction and was sentenced to six years executed. He now

      appeals, claiming that the sentence is inappropriate in light of the nature of the

      offense and his character. We affirm.


                                    Facts and Procedural History
[2]   In January 2016, the State charged Hunter with level 5 felony failure to register

      as a sex offender with a prior conviction.1 The State later alleged that Hunter

      was a habitual offender based on two prior convictions for class C felony child

      molesting. In June 2016, Hunter agreed to plead guilty to the level 5 felony

      count, in exchange for which the State agreed to dismiss the habitual offender

      count. Sentencing was left to the trial court’s discretion. The court accepted

      Hunter’s plea and held a sentencing hearing. In its sentencing order, the court

      found Hunter’s criminal history to be a “significant aggravating factor” and

      noted that the presentence investigation risk assessment score put Hunter “in

      the High risk category to reoffend.” Appealed Order at 2. The court also

      acknowledged Hunter’s guilty plea but noted that he had “received a substantial

      benefit” with the dismissal of the habitual offender count, and therefore the

      court found “that the mitigating aspect of the plea is diminished in this




      1
        See Ind. Code § 11-8-8-17 (sex offender who knowingly or intentionally fails to register when required under
      this chapter commits level 6 felony; offense is level 5 felony if sex offender has prior unrelated conviction for
      offense under this section).

      Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017             Page 2 of 7
      context.” Id. at 3. The court found that the aggravating factors outweighed the

      mitigating factors and sentenced Hunter to six years executed. Hunter now

      appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[3]   Hunter asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),

      which provides that this 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.” The defendant bears the burden of persuading this Court that

      his sentence is inappropriate. Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct.

      App. 2015). The principal role of appellate review is to leaven the outliers, not

      to achieve the perceived correct result in each case. Id. at 973. “We consider

      not only the aggravators and mitigators found by the trial court, but also any

      other factors appearing in the record.” Wells v. State, 2 N.E.3d 123, 131 (Ind.

      Ct. App. 2014), trans. denied. “Whether a sentence is inappropriate ultimately

      turns on 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.”

      Brown v. State, 52 N.E.3d 945, 954 (Ind. Ct. App. 2016), trans. denied. The

      question is not whether another sentence is more appropriate but whether the

      sentence imposed is inappropriate. Helsley v. State, 43 N.E.3d 225, 228 (Ind.

      2015).




      Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017   Page 3 of 7
[4]   “The advisory sentence is the starting point the legislature selected as an

      appropriate sentence for the crime committed.” Blair v. State, 62 N.E.3d 424,

      430 (Ind. Ct. App. 2016). The crime that Hunter committed is failure to

      register as a sex offender with a prior conviction, which is a level 5 felony. Ind.

      Code § 11-8-8-17(b). The sentencing range for a level 5 felony is one to six

      years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b).


[5]   In determining the appropriateness of a deviation from the advisory sentence,

      one factor we consider is whether there is anything more or less egregious about

      the defendant’s offense “that makes it different from the ‘typical’ offense

      accounted for by the legislature when it set the advisory sentence.” Wells, 2

      N.E.3d at 131. In a letter attached to the presentence investigation report,

      Hunter claimed that he had registered with local authorities only two days after

      the deadline,2 that he had been working a “split schedule” six or seven days a

      week3 and caring for a terminally ill friend during his free time, and that the

      registration date “slipped [his] mind temporarily” because he had been

      “stressed and challenged at and around the time of this violation.” Appellant’s

      App. Vol. 2 at 57. Hunter relies on this letter in arguing that “[t]he nature of

      [his] offense is that an offender accidentally forgot his registration date and




      2
        The sentencing transcript indicates that Hunter was required to register every ninety days because of his
      status as a sexually violent predator, which was due to the age of his niece, who was one of his victims. Tr.
      at 10, 15-16.
      3
       According to the letter, Hunter worked from 7:00 to 10:00 a.m., 3:00 to 6:00 p.m., and 9:30 to 10:00 p.m.
      Appellant’s App. at 57.

      Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017            Page 4 of 7
      completed his requirement two days after the deadline.” Appellant’s Br. at 9.

      We note that Hunter’s version of events was not submitted under oath subject

      to the penalties for perjury. The trial court was not required to believe it in any

      event, and the sentencing order does not indicate that it did. 4 Given Hunter’s

      prior conviction for failure to register, the court may well have been skeptical of

      Hunter’s claims. The nature of the offense may not be particularly egregious,

      but we must also account for Hunter’s character in determining the

      appropriateness of his sentence.5


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

      defendant’s criminal history. The significance of a criminal history in assessing

      a defendant’s character varies based on the gravity, nature, and number of prior

      offenses in relation to the current offense.” Wells, 2 N.E.3d at 131 (citation

      omitted). In 1994, Hunter was convicted of class C felony child molesting. 6 He

      violated his probation for that offense by committing another class C felony




      4
        For this reason, we are unpersuaded by Hunter’s reliance on Douglas v. State, 878 N.E.2d 873 (Ind. Ct. App.
      2007), as it relates to his character. We also find Douglas unpersuasive because it involves a first offense for
      failure to register.
      5
        The State argues that “[t]his is [Hunter’s] second charge for failing to register as a sex offender as required
      by the court, which makes this crime particularly egregious.” Appellee’s Br. at 10. Without wishing to
      minimize Hunter’s crime, we disagree. The legislature made a first offense punishable as a level 6 felony and
      accounted for the seriousness of a second offense by elevating it to a level 5 felony. Ind. Code § 11-8-8-17. If
      this were Hunter’s third offense, we might find the State’s argument more persuasive.
      6
       According to Hunter, this conviction triggered his obligation to register as a sex offender. Appellant’s Br. at
      8. Hunter asserts that the trial court “could not use the triggering offense to enhance a sentence.” Id. (citing
      Douglas, 878 N.E.2d at 881). The trial court did not rely solely on the 1994 child molesting conviction to
      enhance Hunter’s sentence, and the court was well within its discretion in using Hunter’s second child
      molesting conviction and probation violation to impose a sentence greater than the advisory term.

      Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017              Page 5 of 7
      molestation, for which he was convicted in 2000. In 2013, he was convicted of

      class D felony failure to register as a sex offender and also was found to be a

      habitual offender. In its sentencing order, the trial court stated that “[t]he sole

      purpose of the Sex and Violent [Offender] Registry is to protect the community

      and keep contact with individuals who have been convicted of certain offenses”

      and found Hunter’s criminal history to be “a significant aggravating factor in

      this context.” Appealed Order at 2. The court also noted that the presentence

      investigation risk assessment score put Hunter “in the High risk category to

      reoffend.” Id.


[7]   Hunter is a repeat offender in the truest sense of the phrase, having twice

      committed both child molesting and failure to register as a sex offender. He

      victimized some of the most vulnerable members of society and then failed to

      comply with the registration requirements that are designed to protect the

      public from sexual predators like him. After Hunter was convicted of his first

      child molesting offense, he took advantage of the trial court’s leniency and

      violated his probation by committing a second molestation. Hunter accepted

      responsibility for his current offense and conserved judicial resources by

      pleading guilty, but, as the trial court correctly observed, he received a

      substantial benefit in return when the State agreed to dismiss the habitual

      offender count. Clearly, Hunter learned nothing from his prior contacts with

      the criminal justice system, and he is unable to obey the law even under close

      judicial supervision. In sum, Hunter has failed to persuade us that his sentence




      Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017   Page 6 of 7
      is inappropriate in light of the nature of the offense and his character.

      Therefore, we affirm.


[8]   Affirmed.


      Riley, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017   Page 7 of 7
