MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                        Oct 23 2019, 10:12 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
A. David Hutson                                          Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandin C. Wilson,                                       October 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-538
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Andrew Adams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         10C01-1704-F1-1



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019                   Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Brandin Wilson (Wilson), appeals his sentence following

      his guilty plea to two Counts of child molesting, Level 1 felonies, Ind. Code §

      35-42-4-3(a)(1); and one Count of child molesting, a Level 4 felony, I.C. § 35-

      42-4-3(b)


[2]   We affirm, in part, reverse, in part, and remand with instructions.


                                                   ISSUES
[3]   Wilson presents two issues on appeal, which we restate as:


          (1) Whether Wilson’s sentence is inappropriate in light of the nature of the

              offenses and his character; and


          (2) Whether Wilson’s sentence for the Level 4 felony child molesting

              conviction exceeds the maximum sentence authorized by law.


                      FACTS AND PROCEDURAL HISTORY
[4]   On April 8, 2017, Wilson left home in Jeffersonville, Indiana with his thirteen-

      year-old stepdaughter, L.M. Wilson told L.M.’s mother that he was going to a

      nearby liquor store with L.M. Instead, Wilson drove L.M. to another location,

      fondled her, and then had sexual intercourse with her in the back of his van.

      When L.M.’s mother became suspicious because the trip was taking long, she

      called Wilson. Wilson stated that the delay was due to the fact that he could


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 2 of 13
      not locate his wallet. After being gone for two hours, L.M.’s mother found

      Wilson’s wallet at home. Inside Wilson’s wallet, L.M.’s mother found “a

      sexual agreement” dated February 13, 2017, between Wilson and L.M. which

      stated in part, “if anyone [sic] of us backs [out] then there will be serious

      consequences for the one who backs out of the deal.” (Appellant’s App. Conf.

      Vol. II, p. 21). Included in the agreement were “sexual stipulations” that L.M.

      had to “meet on a weekly basis.” (Appellant’s App. Conf. Vol. II, p. 21). In

      exchange for the sexual acts, the agreement specified “payment” to L.M. in the

      form of “rewards.” (Appellant’s App. Conf. Vol. II, p. 21).


[5]   The following day, after Wilson had left for work, L.M.’s mother took L.M. to

      the hospital. After the hospital visit, L.M. and her mother went to the

      Jeffersonville Police Department. L.M. informed the police and the

      Department of Child Services that while the sexual agreement was dated

      February 13, 2017, the “sexual contact with [] [Wilson] had been on-going for

      several years.” (Appellant’s App. Conf. Vol. II, p. 21). Wilson was later

      arrested and questioned. At first, Wilson denied engaging in any sexual acts

      with L.M., however, he subsequently admitted to having sexual intercourse

      with L.M. in the van on April 7, 2017, and to writing the sexual agreement.


[6]   On April 13, 2017, the State filed an Information, charging Wilson with Level 1

      felony child molesting and Level 4 felony child molesting. On August 11, 2017,

      the State filed an amended Information, adding two Counts of Class A felony

      child molesting and four Counts of Level 1 felony child molesting.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 3 of 13
[7]   On November 15, 2018, Wilson entered into a “blind plea,” whereby he agreed

      to plead guilty to two Counts of Level 1 felony child molesting and one Count

      of Level 4 felony child molesting. (Appellant’s App. Vol. II, p. 119). In

      exchange, the State agreed to dismiss the remaining charges, two Class A

      felonies and three Level 1 felonies. The parties also agreed to cap Wilson’s

      sentence at eighty-five years. The trial court subsequently ordered a

      presentence investigation report (PSI).


[8]   On January 31, 2019, the trial court conducted a sentencing hearing, and for

      unknown reasons, the sentencing record was not saved. On February 22, 2019,

      the trial court conducted another sentencing hearing for purposes of

      formulating a record. After accepting his guilty plea, the trial court determined

      that the aggravating factors included that Wilson had violated a position of trust

      and that he had threatened L.M. to ensure her silence. The trial court found it

      mitigating that Wilson had a limited criminal history, and he had taken

      responsibility by pleading guilty. The trial court then sentenced Wilson to

      consecutive forty-year sentences with five years suspended to probation for the

      two Level 1 felonies, and to a concurrent eighteen-year sentence with three

      years suspended to probation for the Level 4 felony conviction. Wilson’s

      aggregate sentence is eighty years.


[9]   Wilson now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 4 of 13
                               DISCUSSION AND DECISION
                                           I. Inappropriate Sentence

[10]   Wilson argues that his aggregate eighty-year sentence for his two Level 1 felony

       and one Level 4 felony child molesting convictions is inappropriate.

       Specifically, he contends that his consecutive sentences were inappropriate

       because he had no prior criminal convictions, he pleaded guilty, and he did not

       physically harm L.M.


[11]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied. Whether a sentence is inappropriate turns on “the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at

       1224.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 5 of 13
[12]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       For his Level 1 felony child molesting offenses, Wilson faced a sentencing

       range of twenty to forty years, with the advisory sentence being thirty years.

       I.C. § 35-50-2-4. The trial court sentenced Wilson to consecutive forty-year

       terms, with ten years suspended to probation, for the two Level 1 felonies. For

       his Level 4 felony child molesting conviction, Wilson faced a sentencing range

       of two to twelve years, with the advisory sentence being six years. I.C. § 35-50-

       2-5.5. The trial court sentenced Wilson to a concurrent sentence of eighteen

       years with three years suspended to probation, for an aggregate sentence of

       eighty years. 1


[13]   Regarding the nature of Wilson’s offenses, on April 8, 2017, while Wilson was

       having sexual intercourse with L.M. in the back of his van, L.M.’s mother

       found a sexual agreement in Wilson’s wallet indicating that Wilson and L.M.

       had an ongoing sexual relationship. The agreement contained sexual

       stipulations which L.M. had to meet on a weekly basis, and in exchange for the

       sexual acts, Wilson offered payments in the form of rewards. The sexual

       agreement also threatened “serious consequences” if L.M. failed to attain her

       weekly target. (Appellant’s App. Vol. II, p. 22). While the agreement was

       dated February 13, 2017, when L.M. was questioned by the police about the



       1
           This sentence exceed the statutory limits, and we will address that issue in the section below.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019                       Page 6 of 13
       abuse, L.M. stated that it had been going on for years. It appears that Wilson

       began having sexual intercourse with L.M. when she was about nine years old,

       and it lasted for nearly four and one-half years before the abuse was detected.


[14]   As for his character, we note that Wilson maintained steady employment prior

       to being charged with the instant offenses. Wilson’s friends and family also

       attested to his positive character traits. While the trial court noted that Wilson’s

       criminal history was limited, Wilson had been previously charged with sexual

       misconduct with a minor in 2002, albeit those charges had been dismissed.

       This indeed reflects poorly on Wilson’s character. See Cotto v. State, 829 N.E.2d

       520, 526 (Ind. 2005) (holding that while a record of arrests may not be used as

       evidence of criminal history, it can be “relevant to the trial court’s assessment of

       the defendant’s character in terms of the risk that he will commit another

       crime.”). While it is true that Wilson accepted responsibility for his actions by

       pleading guilty, Wilson obtained a significant benefit by doing so. As noted,

       Wilson had been charged with two other Class A felonies, and three Level 1

       felonies. In exchange for his plea, the State dismissed those charges.

       Furthermore, Wilson’s potential sentencing exposure was further limited by the

       terms of his plea agreement which capped his sentence at eighty-five years. The

       trial court sentenced Wilson in accordance with this agreement, imposing an

       aggregate term of less than the maximum permitted under the terms of the

       agreement.


[15]   Nevertheless, Wilson attempts to minimize the nature of his offenses by arguing

       that the molestations were directed to one victim. Therefore, he suggests that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 7 of 13
       the imposition of consecutive sentences was inappropriate and cites cases where

       this court and our supreme court have revised consecutive sentences to

       concurrent sentences where the sentences for child molesting convictions

       involved the same victim. In particular, Wilson relies on Monroe v. State, 886

       N.E.2d 578 (Ind. 2008), Harris v. State, 897 N.E.2d, 927 (Ind. 2008), and Laster

       v. State, 918 N.E.2d, 428 (Ind. 2003).


[16]   In Monroe v. State, 886 N.E.2d 578 (Ind. 2008), Monroe was convicted of five

       Counts of Class A felony child molesting. Id. The trial court sentenced him to

       twenty-two years on each Count with two years suspended to probation and

       ordered the sentences to be served consecutively for an aggregate sentence of

       100 years. Id. In considering the nature of the offenses on appeal, our supreme

       court noted that Monroe was in a position of trust with his victim and molested

       the child repeatedly for over two years. Id. at 580. However, the court also

       observed that the five Counts were identical and involved the same child. Id.

       Regarding Monroe’s character, the court noted that although he had a prior

       criminal history, all of his convictions were driving related, so his criminal

       history did not justify the imposition of consecutive sentences. Id. Based on

       these facts and circumstances, the supreme court concluded that the nature of

       the offenses and Monroe’s character warranted enhanced, but not consecutive,

       sentences. Id. at 581. The supreme court revised Monroe’s sentence to a

       maximum fifty-year term for each of the five Counts but ordered that they be

       served concurrently. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 8 of 13
[17]   In Harris v. State, 897 N.E.2d 927 (Ind. 2008), the defendant was convicted of

       two Counts of child molesting, Class A felonies, and was sentenced to

       consecutive terms of fifty years on each Count. Three aggravators were present

       in Harris: (1) the defendant was in a position of trust; (2) the defendant

       committed multiple acts of sexual misconduct other than the crimes charged;

       and (3) the defendant’s criminal history. Our supreme court found “the

       ongoing nature of Harris’s crimes coupled with his position of trust sufficiently

       aggravating to justify enhanced sentences.” Id. at 930. However, the court also

       observed that the two Counts of child molestation were identical and involved

       the same child. Id. And although the defendant had a criminal history, the

       court found that history sufficiently different in nature and gravity such that it

       was not a significant aggravator. Id. In the end, our supreme court held the

       aggravating circumstances were sufficient to warrant enhanced sentences but

       not consecutive ones, and the court revised the defendant’s sentence to fifty

       years on each Count to be served concurrently. Id.


[18]   Finally, in Laster v. State, 918 N.E.2d, 428 (Ind. Ct. App. 2009), Laster was

       convicted of two Counts of child molesting, Class A felonies, and four Counts

       of child molesting, Class C felonies. Id. at 430. The trial court found the

       following mitigating circumstances: (1) that a lengthy incarceration would

       place a burden on Laster’s family; and (2) Laster had no criminal history. Id. at

       432. The trial court, however, imposed consecutive thirty-year sentences for

       each of the two Class A felony child molesting convictions, and four-year terms

       for each of the four Class C felony convictions, with one of those terms to be

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 9 of 13
       served consecutively and the remainder to be served concurrently with the

       remaining terms, for an aggregate sentence of sixty-four years. Id. On appeal,

       this court found that the circumstances in Laster warranted a similar result to

       that reached by our supreme court in Harris. Id. We determined given that

       Laster’s lack of criminal history and steady employment together with the facts

       that there was one victim and no uncharged sexual misconduct, his consecutive

       sentences were inappropriate. Id. Thus, we revised Laster’s sentences to

       concurrent terms of thirty-six years on each of the two Class A felony

       convictions and six years on each of the four class C felony convictions. Id.


[19]   In response, the State argues that Wilson’s threat to force L.M. into submission

       and silence, sets Wilson’s case apart from Harris, Monroe, and Laster. In Ludack

       v State, 967 N.E.2d 41,49 (Ind. Ct. App. 2012), we noted that “[w]hether the

       counts involve one or multiple victims is highly relevant to the decision to

       impose consecutive sentences if for no other reason than to preserve potential

       deterrence of subsequent offenses. Similarly, additional criminal activity

       directed to the same victim should not be free of consequences.” (citing

       Cardwell, 895 N.E.2d at 1225.) Here, one of the factors cited in Ludack,

       additional criminal activity directed to the same victim, is relevant in the

       present case. The record shows that in 2017, Wilson’s abuse of L.M. was

       accompanied by threats, as evidenced by the sexual agreement drafted by

       Wilson in February 2017. Such threats were reprehensible attempts by Wilson

       to control L.M. and to maintain L.M.’s silence as he continued to molest her.

       There is no indication that the molestation otherwise would have stopped, and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 10 of 13
       it only stopped after he was detected. At sentencing, the trial court discussed

       the fact that Wilson had threatened L.M. when it discussed the undisputed

       position of trust aggravating circumstance and in reference to the nature and

       circumstances of the crimes.


[20]   In 2002, Wilson was charged with two Counts of sexual misconduct with a

       minor, however, those charges were later dismissed. We find that Wilson’s

       past criminal history, even though limited, separates his case from the cited

       cases since Wilson’s prior criminal record relates to sexual offenses. For

       instance, in Laster, Laster had no criminal history. Laster, 918 N.E.2d at 436.

       In Monroe, Monroe’s criminal history consisted only of driving-related offenses.

       Monroe, 886 N.E.2d at 580. Finally, in Harris, our supreme court observed that

       while Harris had a criminal history, none of them were prior sex offenses and

       that factor warranted a reduced sentence—two Class D felony theft convictions

       and numerous driving traffic violations. Harris, 897 N.E.2d at 930.


[21]   Wilson’s preying upon his stepdaughter spanned close to half a decade. He

       robbed a young, innocent girl of her childhood and forced her to experience

       things that no child should experience. Wilson also made L.M. sign an

       agreement where she stipulated to meeting Wilson’s sexual needs on a weekly

       basis. All things considered, we cannot say that Wilson’s eighty-year aggregate

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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 11 of 13
                                          II. Level 4 Felony Sentence

[22]   Lastly, Wilson argues, and the State concedes, that the trial court erred by

       sentencing him in excess of the statutory maximum sentence for a Level 4

       felony. A sentence that is contrary to or violative of a penalty mandated by

       statute is illegal in the sense that it is without statutory authorization. A

       sentence that exceeds statutory authority constitutes fundamental error.” Reffett

       v. State, 844 N.E.2d 1072, 1073 (Ind. Ct. App. 2006) (citations omitted).


[23]   For his Level 4 felony child molesting conviction, Wilson faced a sentencing

       range of two to twelve years, with the advisory sentence being six years. I.C. §

       35-50-2-5.5. The trial court sentenced Wilson to a concurrent eighteen-year

       sentence with three years suspended to probation. This is an illegal sentence

       since it is in excess of the statutory maximum, i.e., three years above the

       maximum sentence for a Level 4 felony. Thus, we reverse the sentence

       imposed, and remand to the trial court for a sentencing order that does not

       exceed the statutory maximum.


                                             CONCLUSION
[24]   Based on the foregoing, we conclude that the eighty-year aggregate sentence is

       not inappropriate considering the nature of the offenses and his character.

       Further, we conclude that Wilson’s Level 4 felony sentence exceeds the

       statutory maximum, therefore we reverse, and we remand to the trial court to

       enter a sentence that does not exceed the statutory maximum.


[25]   Affirmed, in part, reversed, in part, and remanded with instructions.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 12 of 13
[26]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-538 | October 23, 2019   Page 13 of 13
