Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Apr 29 2014, 10:11 am
any 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:

KRISTIN A. MULHOLLAND                               GREGORY F. ZOELLER
Appellate Public Defender                           Attorney General of Indiana
Crown Point, Indiana
                                                    RICHARD C. WEBSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DERRICK A. HICKS,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )         No. 45A03-1307-CR-265
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Diane Ross Boswell, Judge
                               Cause No. 45G03-1206-FA-17


                                          April 29, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Derrick A. Hicks appeals his sentence of seventy years after his plea of guilty to Class

A felony child molesting,1 Class B felony incest,2 Class B felony sexual misconduct with a

minor,3 and the finding that he is an habitual offender.4 Hicks alleges his sentence is

inappropriate in light of his character and the nature of his offenses. We affirm.

                             FACTS AND PROCEDURAL HISTORY

        From December 10, 2010, to April 7, 2012, Derrick Hicks resided in East Chicago

with his daughter, M.W. Throughout this time, Hicks engaged in sexual intercourse with

M.W. multiple times, and M.W. gave birth to Hicks’ child. At the beginning of this period,

Hicks was over the age of twenty-one and M.W. was under fourteen.

        Hicks was charged with Class A felony child molesting, Class B felony incest, Class B

felony sexual misconduct with a minor, Class D felony intimidation,5 Class D felony battery,6

Class D felony obstruction of justice,7 and was alleged to be an habitual offender. On

January 17, 2013, Hicks agreed to plead guilty to the counts of child molesting, incest, and

sexual misconduct with a minor in exchange for the dismissal of the other charges. On

March 28, 2013, Hicks moved to withdraw his plea and he requested a new public defender.

        The trial court denied the motion and Hicks again agreed to plead guilty. After




1
  Ind. Code § 35-42-4-3.
2
  Ind. Code § 35-46-1-3.
3
  Ind. Code § 35-42-4-9.
4
  Ind. Code § 35-50-2-8.
5
  Ind. Code § 35-45-2-1.
6
  Ind. Code § 35-42-2-1.
7
  Ind. Code § 35-44.1-2-2.
                                               2
making findings of mitigating and aggravating circumstances,8 the court sentenced Hicks to

thirty years for child molestation, ten years for incest, and ten years for sexual misconduct

with a minor. The incest sentence would be served consecutively to the child molestation

sentence, and the sexual misconduct with a minor sentence would be served concurrently

with the sentence for incest, for a sentence of forty years. The court also found Hicks to be

an habitual offender and enhanced his sentence by thirty years, for an aggregate sentence of

seventy years.

                                  DISCUSSION AND DECISION

        We may revise a sentence 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) (emphasis added). The appellant bears

the burden of demonstrating the sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). We do not give complete deference to the trial court, but we

recognize “the unique perspective a trial court brings to its sentencing decisions” and give

due consideration to its decision. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.

2008) (quoting Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007)).

        In analyzing the “nature of the offense” prong of a Rule 7(B) analysis, the advisory

sentence is the starting point that the legislature has determined to be appropriate for a given



8
 The trial court found as a mitigating factor that Hicks did not have the benefit of a plea agreement. It found
as aggravating factors that the “harm suffered by the victim of the offense was greater than the elements
necessary to prove the commission of the crime; in that it lasted over an extended period of time and that a
child was conceived out of those sexual encounters,” that Hicks had two prior felony convictions, and that
Hicks was in a position of trust with the victim. (App. at 51.)
                                                      3
crime. Anglemyer v. State, 868 N.E.2d 482, 494, clarified on reh’g, 875 N.E.2d 218 (Ind.

2007). The advisory sentence for a Class A felony is thirty years with a range of twenty to

fifty years. Ind. Code § 35-50-2-4. The advisory sentence for a Class B felony is ten years

with a range of six to twenty years. Ind. Code § 35-50-2-5. The sentence enhancement for

an habitual offender finding is “an additional fixed term that is not less than the advisory

sentence for the underlying offense nor more than three (3) times the advisory sentence for

the underlying offense. However, the additional sentence may not exceed thirty (30) years.”

Ind. Code § 35-50-2-8.

       Our analysis of the “nature of the offense” requires us to look at the extent and

depravity of the offense rather than comparing the facts at hand to other cases. Brown v.

State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied. Hicks was the victim’s

father. For several years, he sexually molested his daughter beginning at a time when she

was under the age of fourteen, and she became pregnant with Hicks’ child.

       In light of the nature of the offense, Hicks’ sentence was not appropriate. The trial

court sentenced Hicks to the advisory sentence for each count -- thirty years for the Class A

felony count, ten years for both Class B felony counts, and thirty years for the habitual

offender finding attached to the Class A felony child molestation count. The depravity and

extent of the crime permit the sentence imposed. Cf. Brown, 760 N.E.2d at 247.

       In looking at the character of an offender, we consider the defendant’s age, criminal

history, background, and remorse. James v. State, 868 N.E.2d 543, 548-49 (Ind. Ct. App.

2007). Hicks’ character does not require a reduction in his sentence. While we acknowledge

                                             4
Hicks’ testimony regarding his harsh treatment as a child, Hicks, in his forties, has numerous

criminal convictions. Two are the felonies supporting the habitual offender finding.9 His

most recent conviction is based on the sexual molestation of his daughter over the course of

multiple years. While Hicks argues his apology letter demonstrates remorse for his crime, it

does not lessen the effects his actions had on his daughter. Hicks’ character does not support

finding his sentence is inappropriate.

        Hicks has not demonstrated that his sentence is inappropriate based on his character

and the nature of the offense. Accordingly, we affirm.

        Affirmed.

VAIDIK, C.J., and RILEY, J., concur.




9
 Hicks argues that, under Frye v. State, these felonies are significantly old so as to not be given much weight.
Frye v. State, 837 N.E.2d 1012 (Ind. 2005) (reh’g. denied). However, Frye is distinguishable. In Frye, our
Indiana Supreme Court reduced Frye’s burglary sentence from forty years to twenty-five. Id. at 1015. The trial
court calculated Frye’s forty year sentence based on ten years for the burglary offense, five years for an
enhancement, and twenty-five years because Frye was an habitual offender. Id. at 1014. There the trial court
increased the habitual offender enhancement over the presumptive sentence, which the Supreme Court found
inappropriate in light of the nature of the offense or Frye’s character. Id. Here, however, the trial court did not
exceed the presumptive sentence for the habitual offender finding, but rather followed the language of the
statute which provides an “additional fixed term that is not less than the presumptive sentence for the
underlying offense.” Ind. Code § 35-50-2-8(h). As the trial court followed the language of the statute, we find
no error.
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