MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Jun 09 2017, 9:33 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Anthony S. Churchward, P.C.
                                                         Eric P. Babbs
Fort Wayne, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony D. Thomas,                                       June 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1701-CR-66
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1608-F4-52



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017         Page 1 of 5
                                Case Summary and Issue
[1]   Anthony Thomas pleaded guilty to three counts of sexual misconduct with a

      minor as Level 4 felonies, one count of the same as a Level 5 felony, and one

      count of contributing to the delinquency of a minor as a Class A misdemeanor.

      Thomas also admitted he is a repeat sexual offender. The trial court sentenced

      Thomas to an aggregate sentence of eighteen years in the Indiana Department

      of Correction. On appeal, Thomas raises one issue for our review: whether his

      sentence is inappropriate in light of the nature of the offenses and his character.

      Concluding his sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   In July 2016, Thomas and fourteen-year-old B.W. were present in the same

      home when Thomas provided B.W. with alcohol and marijuana. At some

      point, Thomas took B.W. to a bedroom and demanded she remove her

      clothing. Thomas then proceeded to perform oral sex, digital penetration, and

      sexual intercourse with B.W. despite B.W.’s requests he stop. Thomas also

      later asked B.W. not to tell anyone, and when questioned by law enforcement,

      Thomas denied B.W.’s allegations.


[3]   On August 2, 2016, the State charged Thomas with three counts of sexual

      misconduct with a minor as Level 4 felonies, one count of the same as a Level 5

      felony, and one count of contributing to the delinquency of a minor as a Class

      A misdemeanor. The State also alleged Thomas was a repeat sexual offender.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017   Page 2 of 5
      Without the benefit of a plea agreement, Thomas pleaded guilty as charged. At

      the sentencing hearing, the parties agreed that given the fact Thomas’

      convictions arose out of only one episode of criminal conduct, the maximum

      sentence the trial court could impose was fifteen years, see Ind. Code § 35-50-1-

      2(d)(3), in addition to a six-year enhancement due to Thomas’ status as a repeat

      sexual offender, see Ind. Code § 35-50-2-14(f). The trial court then sentenced

      Thomas to twelve years for the underlying offenses plus a six-year enhancement

      due to his status as a repeat sexual offender for an aggregate sentence of

      eighteen years. This appeal ensued.



                                 Discussion and Decision
[4]   Indiana Appellate Rule 7(B) states, “The 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.” On appeal, the defendant bears

      the burden of persuading this court his or her sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a

      sentence as inappropriate 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The

      principal role of appellate review is to “leaven the outliers,” not to achieve the

      perceived “correct” result in each case. Id. at 1225.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017   Page 3 of 5
[5]   The advisory sentence is the starting point the legislature selected as an

      appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d

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

      was convicted of three Level 4 felonies, one Level 5 felony, and one Class A

      misdemeanor. A person who commits a Level 4 felony shall be imprisoned for

      a fixed term of between two and twelve years, with the advisory sentence being

      six years. Ind. Code § 35-50-2-5.5. A person who commits a Level 5 felony

      shall be imprisoned for a fixed term of between one and six years, with the

      advisory sentence being three years. Ind. Code § 35-50-2-6(b). And a person

      convicted of a Class A misdemeanor faces a maximum sentence of one year.

      Ind. Code § 35-50-3-2. Excluding the repeat sexual offender enhancement, the

      trial court sentenced Thomas to an aggregate sentence of twelve years.


[6]   As to the nature of the offense, we note Thomas first provided B.W. with

      intoxicating substances. He then proceeded to perform numerous sexual acts

      on B.W. without B.W.’s consent and contrary to her requests that he stop. In

      addition, Thomas asked B.W. to keep the misconduct a secret. As to his

      character, we acknowledge Thomas pleaded guilty thereby indicating some

      ability to take responsibility for his conduct, but note this was only done after

      he had already denied any culpability to law enforcement. In addition, Thomas

      has an extensive criminal history, which includes previous convictions for

      sexual misconduct with a minor, battery, invasion of privacy, criminal

      conversion, criminal mischief, and criminal trespass. Thomas has not

      persuaded us his sentence is inappropriate.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017   Page 4 of 5
                                              Conclusion
[7]   We conclude Thomas’ sentence is not inappropriate in light of the nature of the

      offenses and his character. Accordingly, we affirm.


[8]   Affirmed.


      Vaidik, C.J., and Bailey, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-66 | June 9, 2017   Page 5 of 5
