      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                 Dec 09 2015, 7:21 am
      regarded as precedent or cited before 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
      Marce Gonzalez, Jr.                                      Gregory F. Zoeller
      Dyer, Indiana                                            Attorney General of Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Harold Randy Hughes,                                     December 9, 2015
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1502-CR-56
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Salvador Vasquez,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               45G01-1309-FB-82



      Mathias, Judge.


[1]   Harold Randy Hughes (“Hughes”) pleaded guilty in Lake Superior Court to

      Class C felony sexual misconduct with a minor. He was ordered to serve seven


      Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015        Page 1 of 6
      and one-half years in the Department of Correction. Hughes appeals and argues

      that his sentence is inappropriate in light of the nature of the offense and the

      character of the offender.


[2]   We affirm.

                                    Facts and Procedural History

[3]   Hughes, who was sixty years old, engaged in sexual misconduct with fourteen-

      year-old N.J. Hughes met N.J. at a festival in Dyer, Indiana during the summer

      of 2013. Shortly thereafter, they began communicating via text messages and

      telephone calls. On August 10, 2013, Hughes arranged to pick N.J. up, and they

      returned to Hughes’ residence where Hughes engaged in sexual deviate conduct

      with N.J.


[4]   N.J.’s guardian tracked her to Hughes’ residence through her cell phone.

      Hughes refused to allow N.J.’s guardian into the residence. Hughes told her

      guardian to get off of his property. N.J.’s guardian returned to his vehicle and

      called the police.


[5]   When the police arrived, Hughes told the officer that he and N.J. had done

      nothing wrong and he was simply showing her how to use Facebook. Police

      officers then entered Hughes’ residence, located N.J. in Hughes’ bedroom, and

      returned her to her guardian.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015   Page 2 of 6
[6]    A no-contact order was entered against Hughes naming N.J. as the protected

       person. One week after N.J. was found at Hughes’ residence, Hughes violated

       the protective order and met N.J. in a park.


[7]    In September 2013, Hughes was charged with Class B felony sexual misconduct

       with a minor. Hughes later agreed to plead guilty to Class C felony sexual

       misconduct with a minor.

[8]    The sentencing hearing was held on January 16, 2015. At the hearing, the State

       entered portions of N.J.’s diary as an exhibit. In the diary, N.J. described

       numerous sex acts between herself and Hughes. Also, N.J.’s guardian testified

       to the negative effect Hughes’ criminal conduct has had on his family and N.J.,

       who was residing in a group home on the date of the sentencing hearing.


[9]    Hughes argued that he should be given a minimum sentence and claimed that

       fourteen-year-old N.J. was the aggressor in her relationship with sixty-year-old

       Hughes. Tr. p. 45. Furthermore, Hughes argued he just enjoyed the attention

       from N.J.; Hughes’ criminal sexual conduct has not had an impact on N.J.; and

       that N.J. “still indicates that she wants to have a relationship with him.” Tr. pp.

       51-52. Hughes also cited medical issues and the assistance he provides to his

       mother as reasons to impose a minimum sentence.


[10]   Before imposing his sentence, the trial court observed that Hughes is “extremely

       manipulative” and found his “character to be dishonest.” Tr. pp. 59-60. The

       court also noted Hughes was on probation for Class D felony operating while

       intoxicated when he committed this offense, and he was arrested for invasion of

       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015   Page 3 of 6
       privacy for violating the no-contact order protecting N.J. The court also declined

       to find Hughes’ guilty plea to be a significant mitigating circumstance.

       Thereafter, the trial court ordered Hughes to serve a seven-and-one-half-year

       sentence executed in the Department of Correction. Hughes now appeals.

                                        Discussion and Decision

[11]   Hughes argues that his seven-and-one-half-year sentence is inappropriate in

       light of the nature of the offense and the character of the offender. Even if a trial

       court acted within its statutory discretion in imposing a sentence, Article 7,

       Sections 4 and 6 of the Indiana Constitution authorize independent appellate

       review and revision of a sentence imposed by the trial court. Trainor v. State, 950

       N.E.2d 352, 355–56 (Ind. Ct. App. 2011), trans. denied (citing Anglemyer v. State,

       868 N.E.2d 482, 490 (Ind. 2007)). This authority is implemented through

       Indiana Appellate Rule 7(B), which provides that the court on appeal “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.”


[12]   Still, we must and should exercise deference to a trial court’s sentencing

       decision, because Rule 7(B) requires us to give ‘due consideration’ to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions. Id. Although we have the power to

       review and revise sentences, the principal role of appellate review should be to

       attempt to level the outliers, and identify some guiding principles for trial courts

       and those charged with improvement of the sentencing statutes, but not to
       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015   Page 4 of 6
       achieve what we perceive to be a “correct” result in each case. Fernbach v. State,

       954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008)).


[13]   Under Appellate Rule 7(B), the appropriate question is not whether another

       sentence is more appropriate; rather, the question is whether the sentence

       imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.

       2007). It is the defendant’s burden on appeal to persuade us that the sentence

       imposed by the trial court is inappropriate. Id. (citing Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006)).

[14]   Hughes’ seven-and-one-half-year sentence is six months less than the maximum

       eight-year sentence allowed for a Class C felony. See Ind. Code § 35-50-2-6(a)

       (“A person who commits a Class C felony (for a crime committed before July 1,

       2014) shall be imprisoned for a fixed term of between two (2) and eight (8)

       years, with the advisory sentence being four (4) years”).

[15]   First, we conclude that the nature of Hughes’ offense is particularly heinous.

       Hughes was sixty years old when he committed sexual misconduct with

       fourteen-year-old N.J. After meeting N.J. at a festival, he communicated with

       her via numerous text messages and phone calls. On August 10, 2013, he

       arranged to pick her up and take her to his residence where he engaged in sex

       acts with the child. When N.J.’s guardian located her at Hughes’s residence,

       Hughes ordered her guardian off of his property. Police officers were required

       to intervene to remove N.J. from Hughes’ home.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015   Page 5 of 6
[16]   At sentencing, the trial court observed that Hughes was manipulative and

       dishonest. He also demonstrated disregard for the law by violating a no-contact

       order against the victim in this case, which resulted in an invasion of privacy

       charge that was pending against him on the date of sentencing. Also, he was on

       probation for Class D felony operating while intoxicated when he committed

       this offense. Hughes also has a 2005 Class D felony conviction for operating

       while intoxicated and two misdemeanor convictions for the same conduct.


[17]   Although pleading guilty to the charged offense generally reflects well on the

       defendant’s character, in this case the trial court assigned only minimal

       mitigating weight to Hughes’ guilty plea. The record reflects that Hughes’

       decision to plead guilty was likely a pragmatic one and not a true expression of

       remorse. As the trial court noted, the evidence against Hughes supported the

       Class B felony sexual misconduct charge, the original charge in this case, and

       when he agreed to plead guilty to the C felony, Hughes’s maximum sentence

       decreased from twenty years to eight years.

[18]   For all of these reasons, we conclude that Hughes’ seven-and-one-half-year

       sentence is more than appropriate in light of the nature of the offense and the

       character of the offender.


[19]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1502-CR-56 | December 9, 2015   Page 6 of 6
