Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                     Jan 31 2014, 9:06 am
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:

ERIC K. KOSELKE                                 GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                MICHELLE BUMGARNER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

JUAN Q. BEAMON,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1307-CR-599
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Sheila A. Carlisle, Judge
                      The Honorable Stanley E. Kroh, Commissioner
                           Cause No. 49G03-1110-FB-76850


                                     January 31, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

       Appellant-Defendant, Juan Q. Beamon (Beamon), appeals his sentence for sexual

misconduct with a minor, a Class C felony, Ind. Code § 35-42-4-9(b)(1), and his

adjudication as an habitual offender.

       We affirm.

                                         ISSUES

       Beamon raises two issues on appeal, which we restate as:

       (1) Whether the trial court vindictively re-sentenced Beamon on remand when the

          individual and aggregate sentence on re-sentencing was less than the original

          sentence imposed and within the statutory range; and

       (2) Whether Beamon’s sentence is inappropriate in light of the nature of the

          offense and his character.

                        FACTS AND PROCEDURAL HISTORY

       The facts underlying Beamon’s conviction, as found by this court in his initial

direct appeal, are as follows:

       On October 12, 2011, Beamon and his cousin J.W., the mother of fifteen-
       year-old K.P., went to a bar to celebrate J.W.’s fortieth birthday. K.P. and
       her sister C.W. remained in J.W.’s apartment. K.P. went to sleep clothed,
       but took her clothes off at some point because she became hot. At some
       point, J.W. and Beamon returned to the apartment, and J.W. fell asleep on
       the couch.

       K.P. awoke because she was being touched and saw Beamon crouched over
       the top of her. K.P. said, “Dude, what the F are you doing? I’m not my
       mother.” Beamon did not respond verbally, but left the room. K.P. put her
       “clothes back on and wrapped up and turned and faced the wall.” K.P. did
       not tell anyone at that point because she was scared. K.P. fell back to sleep.



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       K.P. awoke again and discovered that her shorts and underwear were at her
       knees and Beamon was touching her vagina area. K.P. lay on her back and
       Beamon “had his hand in [her] vagina area.” K.P. said, “Dude, what are
       you doing?” Beamon then stood up, shook his head, and walked out of
       K.P.’s room. K.P. did not leave her room because she was scared, but she
       called her mother and tried to listen to see if she heard her mother’s phone,
       but she did not hear it. K.P. then called C.W. and stated: “Can you come
       and get me?” K.P. told her sister that Beamon “was touching [her] ‘coota
       mama,’” which was a term K.P. used for vagina.

       C.W. called some other family members who came over to the apartment.
       Rheagan Gilmore, a relative of K.P., came over and asked where Beamon
       was located, and her son told her that Beamon was in the back room.
       Gilmore went into the back room, found Beamon shirtless on the floor,
       struck Beamon with a “little bat” and told him to “get up and get the f—
       out.” Beamon then exited the apartment, K.P. then told Gilmore what
       happened, and Gilmore called the police.

Beamon v. State, No. 49A02-1207-CR-571, at *1 (Ind. Ct. App., Feb. 25, 2013) (internal

citations omitted).

       On October 31, 2011, the State filed an Information charging Beamon with Count

I, sexual misconduct with a minor, a Class B felony, I.C. § 35-42-4-9(a)(1) and Count II,

sexual misconduct with a minor, a Class C felony, I.C. § 35-42-4-9(b)(1). Additionally,

the State filed an habitual offender information. On June 6, 2012, Beamon was found

guilty as charged. On June 29, 2012, following a sentencing hearing, the trial court

vacated the judgment of conviction on Count II due to double jeopardy concerns and

sentenced Beamon to sixteen years for the Class B felony, enhanced by ten years due to

his status as an habitual offender, for an aggregate sentence of twenty-six years. The trial

court suspended three years of his sentence.

       Beamon appealed. On direct appeal, Beamon challenged the sufficiency of the

evidence supporting his conviction for Class B felony child molesting. We found the


                                               3
evidence insufficient to support his conviction and ordered the trial court to reverse

Beamon’s Class B felony conviction and enter judgment on the previously vacated

conviction of sexual misconduct of a minor as a Class C felony. See Slip Op. at *6.

       On remand and during the re-sentencing hearing on June 12, 2013, the trial court

found Beamon’s criminal history as a significant aggravator and sentenced him to seven

years for sexual misconduct with a minor, as a Class C felony, enhanced by eight years

for the habitual offender adjudication, for an aggregate sentence of fifteen years.

       Beamon now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                 I. Vindictive Sentencing

       Beamon first contends that the trial court vindictively sentenced him when it

proportionally doubled his habitual offender enhancement during the re-sentencing

hearing without finding any additional aggravators. Pursuant to Ind. Code § 25-50-2-

8(h), the sentence for an habitual adjudication “is not less than the advisory sentence for

the underlying offense and not more than three (3) times the advisory sentence for the

underlying offense[.]” As the advisory sentence for a Class B felony is ten years,

Beamon received the advisory term as his habitual offender sentence at the original

hearing. However, on re-sentencing, he received twice the advisory sentence for a Class

C felony—the advisory sentence being four years—as his habitual offender sentence

enhancement. Beamon maintains that this amounted to vindictive re-sentencing that is

prohibited by the Fifth and Fourteenth Amendments to the United States Constitution.




                                             4
       “While sentencing discretion permits consideration of a wide range of information

relevant to the assessment of punishment, . . . it must not be exercised with the purpose of

punishing a successful appeal.” Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989). “Due process of law, then, requires that vindictiveness against a

defendant for having successfully attached his first conviction must play no part in the

sentence he receives after a new trial.” Id. Whenever a trial court imposes a more severe

sentence upon a defendant, the reasons for doing so must be clear, or the presumption

arises that there has been a vindictive purpose. See id. “Once this presumption blossoms,

the prosecution must proffer evidence to overcome it; elsewise, vindictiveness is deemed

established, and the due process clause requires invalidation of the challenged action.”

Sanjari v. State, 981 N.E.2d 578, 581 (Ind. Ct. App. 2013), trans. denied (citing U.S. v.

Pimienta-Redondo, 874 F.2d 9, 13 (1st Cir. 1989)).

       In analyzing the issue of presumed vindictive re-sentencing in Sanjari, we

acknowledged

       that a trial court is likely to view individual sentences in a multi-count
       proceeding as part of an overall plan, a plan that can be overthrown if one
       of more of the convictions is reversed or reduced in degree. We join with
       those courts who allow the trial court flexibility upon remand, including the
       ability to increase sentences for individual convictions without giving rise
       to a presumption of vindictive sentencing, so long as the aggregate sentence
       is no longer than originally imposed.

Id. at 583. In other words, in alleged vindictive re-sentencing cases, the aggregate

sentence of the conviction is the key. See id. at 582.

       Here, Beamon’s original aggregate sentence was twenty-six years, whereas his

aggregate re-sentence amounted to fifteen years. During each sentence, the trial court


                                             5
suspended three years. Moreover, even though Beamon brought the proportionality of

the habitual offender sentence to the trial court’s attention at re-sentencing, the trial court

specifically considered the argument and found that the eight-year habitual offender

sentence was appropriate from “the facts and argument and circumstances presented” at

the hearing. (Re-Sent. Transcript p. 15). Therefore, we conclude that the trial court was

not vindictive in resentencing Beamon.

                                    II. Appropriateness

       Next, Beamon challenges the appropriateness of his sentence in light of the nature

of the offense and his character. We 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. Ind.

Appellate Rule 7(B).        Although appellate review of sentences must give due

consideration to the trial court’s sentence because of the special expertise of the trial

bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise

sentences when certain broad conditions are satisfied. Shouse v. State, 849 N.E.2d 650,

660 (Ind. Ct. App. 2006), trans. denied. Whether we regard a sentence as appropriate at

the end of the day turns on our sense of the culpability of the defendant, the severity of

the crime, the damages done to others, and myriad of other factors that some to light in a

given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the

“due consideration” we are required to give to the trial court’s sentencing decision, “we

understand and recognize the unique perspective a trial court brings to its sentencing

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


                                              6
       With respect to the nature of the crime, we note that Beamon entered the bedroom

of a sleeping minor relative and forced himself on her, not once but twice. These events

occurred while other relatives, including other minor children, were in the home.

Turning to Beamon’s character, we note his extensive criminal history, beginning at age

thirteen.   He amassed fourteen juvenile arrests, four felony convictions, and ten

misdemeanor convictions. Beamon admitted to using Vicodin and has had urine screens

test positive for marijuana. Prior attempts at rehabilitation have failed and Beamon has

had his probation and community correction sentences revoked. In light of the facts

before us, we cannot conclude that Beamon’s sentence is inappropriate in light of the

nature of the crime and his character.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court did not vindictively re-

sentence Beamon and Beamon’s sentence is not inappropriate in light of the nature of the

offense and the character of the offender.

       Affirmed.

VAIDIK, C.J. and MAY, J. concur




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