MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                   Jan 23 2020, 9:17 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Noah T. Williams                                         Curtis T. Hill, Jr.
Monroe County Public                                     Attorney General of Indiana
Defender’s Office
                                                         Lauren A. Jacobsen
Bloomington, Indiana                                     Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Golby Desroches,                                         January 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1919
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Valeri Haughton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         53C02-1705-F3-513



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020                     Page 1 of 11
[1]   Golby Desroches appeals the sentence imposed by the trial court after he

      pleaded guilty to Level 4 felony burglary and Level 6 felony sexual battery,

      arguing that the trial court erred in its sentencing and that the sentence is

      inappropriate in light of the nature of the offenses and his character. Finding no

      error and the sentence not inappropriate, we affirm.


                                                     Facts
[2]   Desroches and M.M. were in an on-again, off-again sexual relationship until it

      ended sometime in 2017. On May 7, 2017, Desroches and M.M. were spending

      time at a bar in Bloomington “drinking . . . and having fun and dancing.” Tr.

      Vol. I p. 29. During this time, Desroches saw M.M. drinking a significant

      amount of alcohol. The two parted ways, and M.M. went home to her

      apartment to sleep. Later that evening, Desroches went to M.M.’s apartment

      uninvited. He first knocked on the door, but no one answered. Desroches then

      opened and climbed through M.M.’s living room window. Once inside,

      Desroches was confronted by M.M.’s roommate, who led Desroches back to

      M.M.’s bedroom after Desroches told her that M.M. had invited him over.


[3]   Desroches entered M.M.’s bedroom, saw M.M. sleeping, laid down on the bed

      next to her, and removed her clothing. Desroches then slipped his fingers inside

      M.M.’s vagina and fondled her. Thereafter, Desroches put his penis inside her

      vagina and had sexual intercourse with M.M. while she was unconscious. After

      receiving a call on his cell phone, Desroches stopped what he was doing and

      left M.M.’s residence through the front door. M.M. woke up later that day and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 2 of 11
      admitted that she “didn’t remember much of what happened the night before.”

      Id. at 14. However, M.M. did testify that she “felt . . . weird in [her] genital

      area, and [she] felt like something had happened[.]” Id. M.M.’s roommate told

      her that Desroches had been at their apartment the night before, so M.M. texted

      Desroches for clarification.


[4]   Desroches eventually responded to M.M.’s texts and repeatedly denied that he

      had been over at her apartment. M.M. continued to press Desroches on the

      matter until Desroches admitted that he had come over, but that nothing had

      happened. Still uneasy, M.M. went to the hospital, completed a rape kit, and

      discovered that someone had had sexual intercourse with her. After a “couple

      hours,” id. at 17, Desroches confessed that he had touched M.M.

      inappropriately. Desroches then contacted a friend and “told him about [the

      inappropriate touching] and he said, if there’s anything he could do, like talk to

      her, since me and her were like near each other, and trusted each other[.]” Id. at

      30. Desroches gave M.M.’s cell phone number to his friend, who contacted

      M.M. and told her that “[she] shouldn’t go to court.” Id.


[5]   Soon enough, on May 9, 2017, Bloomington Police Department Detective

      Robert Shrake interviewed Desroches, who admitted that he had assaulted

      M.M. without her consent and after she had consumed alcohol. On May 25,

      2017, the State charged Desroches with two counts of Level 3 felony rape and

      one count of Level 4 felony burglary. Shortly thereafter, Desroches absconded.

      Desroches was finally arrested on January 26, 2019.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 3 of 11
[6]   On July 16, 2019, Desroches entered into an open plea agreement, pursuant to

      which he would agree to plead guilty to Level 4 felony burglary and a new

      charge of Level 6 felony sexual battery in exchange for dismissal of the other

      charges, including those from an unrelated cause number. That same day, the

      trial court sentenced Desroches to an aggregate term of eight years, with six

      years to be executed in the Department of Correction (DOC) and two years

      suspended to probation. Desroches now appeals.


                                   Discussion and Decision
                                    I. Sentencing Statement
[7]   First, Desroches argues that the trial court’s sentencing statement is inadequate

      because it failed to cite evidence in support of its use of certain aggravators and

      it omitted several mitigators allegedly supported by the record.


[8]   Sentencing decisions are left to the sound discretion of the trial court. Smallwood

      v. State, 773 N.E.2d 259, 263 (Ind. 2002). We will reverse a sentencing decision

      regarding certain aggravating and/or mitigating factors only if the decision is

      clearly against the logic and effect of the facts and circumstances before the trial

      court and all reasonable inferences drawn therefrom. Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.


[9]   “[T]rial courts are required to enter sentencing statements whenever imposing a

      sentence for a felony offense.” Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct.

      App. 2012). “The statement must include a reasonably detailed recitation of the

      trial court’s reasons for imposing a particular sentence.” Id. “In reviewing a
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 4 of 11
sentencing decision . . . we are not limited to the written sentencing statement

but may consider the trial court’s comments in the transcript of the sentencing

proceedings.” Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). Though the trial

court’s written sentencing order does not list the aggravators and mitigators, the

trial court stated them in its oral sentencing statement, in pertinent part, as

follows:


        Mr. Desroches, um, while I think its [sic], I supposed, a good
        thing that there are no other convictions, I believe that you took
        advantage of the situation. You went in through a window. The
        reason you interacted with [M.M.’s] roommate wasn’t because
        you sought her out, or asked if anything was okay, was [amiss],
        you ran into her. Not physically, but you know you encountered
        her, kind of by happenstance. You went in through a window, I
        quite frankly do not believe that you thought that something was
        wrong. I just don’t believe that. I think that you went in through a
        window because nobody answered the door and you decided that
        this was something that you wanted to do. And, since you knew
        she had been drinking, and was very likely intoxicated, um, she
        was at best, and I think you kind of indicated, groggy and unaware
        of what was going on. I’m further not convinced that, I think that
        you know, Mr. Williams said that you weren’t, you were not
        much of a criminal, which may be true, on the other hand, you
        knew that you had done something wrong, you said you didn’t
        realize you’d done anything wrong, but I don’t believe that
        because, you initially denied it. You denied it to her, when she
        asked you about it. You denied that anything had happened.
        Ultimately, the facts proved that something had happened, and
        because of that, you were kind of confronted with fessing up, I
        suppose to what had, you had actually done. I think the idea that
        taking advantage of someone that you trusted, that you had [at]
        least some relationship with, is a pretty horrible betrayal of trust.
        Now what you did, that’s a violation that is traumatizing,
        troubling, um, and not something that I can easily dismiss with a
        basically a symbolic slap on the wrist. I just can’t do that. Um, I
        think it’s a very serious crime, quite frankly and the fact that you
        went through a window to commit it, made sound like not a big
        deal to some people, but it sounds like a very big deal to me. . . .
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 5 of 11
                                                    ***

               Um, I think I probably need to say for the record, that because this
               is, although you won’t be serving that as an executed portion of
               the sentence, I mean I’m only sentencing him to serve as an
               executed part the advisory, . . . but because the Court did take
               judicial notice of the probable cause in the other, in the other case .
               . . I felt that that was an aggravator and I also, um, well I guess I’ll
               say, just that, although, I, I would have initially been inclined to
               perhaps sentence him to more, but I did, believe it or not, take into
               account the mitigators, so for that reason, that’s the basis for the
               Court’s sentence. And I feel I should say that on the record, so
               that everybody is clear on that.


       Tr. Vol. I p. 36-37; 41.


[10]   The crux of Desroches’s argument is that the trial court failed to cite evidence in

       support of certain aggravators (the nature of Desroches’s criminal actions, a

       previous probable cause affidavit, and Desroches’s betrayal of M.M.’s trust) and

       failed to take into account mitigators that Desroches claimed were apparent

       from the record (Desroches’s cooperation with authorities and willingness to

       plead guilty, his lack of any prior criminal conviction, and the presentence

       investigation report showing that Desroches would benefit from probation

       rather than incarceration).


[11]   The record is replete with evidence to support the trial court’s aforementioned

       sentencing statement. Though the trial court did not explicitly state the

       aggravators and mitigators in a written sentencing order, the trial court was

       clear in its oral sentencing statement so that all parties understood how it would

       render Desroches’s final sentence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 6 of 11
[12]   There is evidence to show that Desroches did betray M.M., there was a prior

       criminal charge levied against Desroches, and the particular nature and

       circumstances of this crime were appalling. In its sentencing statement, the trial

       court admonished Desroches for his heinous acts, for having engaged in

       criminal behavior in the past, and for having taken advantage of his relationship

       with M.M. While Desroches claims that he only seeks clarity from the trial

       court’s sentencing statement, this strategy is nothing more than an attempt to

       have us reweigh the evidence, which we may not do. See Echols v. State, 722

       N.E.2d 805, 808 (Ind. 2000) (reiterating that “sentencing decisions lie within

       the discretion of the trial court,” which include the trial court’s use or non-use

       of aggravators and mitigators).


[13]   Further, the trial court was under no obligation to give weight to the mitigators

       or the evidence supporting the mitigators as proffered by Desroches. See

       Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003) (holding that “[a]

       sentencing court need not agree with the defendant as to the weight or value to

       be given to proffered mitigating facts[]”); see also Echols, 722 N.E.2d at 808

       (concluding that “a trial court [is not] required to find mitigating circumstances

       where there are none[.]”).


[14]   Though Desroches believes that his willingness to plead guilty and his

       cooperation with law enforcement were significantly mitigating, the trial court

       clearly did not agree. And based on the record, the trial court did not err in

       reaching that determination. First, a trial court need not give excessive weight

       to a criminal defendant’s willingness to plead guilty, especially when he

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 7 of 11
       receives a substantial benefit by doing so. See Sanchez v. State, 891 N.E.2d 174,

       176 (Ind. Ct. App. 2008); see also Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.

       App. 2007). Here, Desroches had three major felony charges dropped in

       exchange for pleading guilty and will serve only six years in the DOC.

       Moreover, the record does not show that Desroches fully complied with law

       enforcement. Immediately following his interview with Detective Shrake,

       Desroches absconded and was not arrested until nearly two years after the State

       charged him with multiple felonies. The trial court decided to not weigh those

       factors as mitigators, and we find that the trial court did not err in that respect.


[15]   Additionally, the trial court simply did not give much weight to the fact that

       Desroches has no prior criminal convictions and the fact that the presentence

       investigation report shows that Desroches would benefit from probation rather

       than incarceration. This was mainly because the trial court believed that the

       severity of Desroches’s criminal actions outweighed any possible mitigating

       factor. Likewise, we will not second-guess the trial court’s decision.


[16]   Thus, in looking at the trial court’s sentencing statement and the record as a

       whole, we find that the trial court was not vague in its sentencing statement and

       that it did not err in finding—or not finding—certain aggravators and mitigators

       when rendering Desroches’s sentence.


                                         II. Appropriateness
[17]   Next, Desroches argues that the sentence imposed by the trial court is

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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 8 of 11
[18]   Indiana Appellate Rule 7(B) states that a “Court 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.” The question is not whether another sentence is more

       appropriate, but whether the defendant’s specific sentence is inappropriate.

       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining

       whether the sentence is inappropriate, we will consider numerous factors such

       as 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

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


[19]   For a Level 4 felony offense, the maximum sentence is twelve years, and the

       minimum sentence is two years. Ind. Code § 35-50-2-5.5. The advisory sentence

       is six years. Id. For a Level 6 felony offense, the maximum sentence is two and

       one-half years, and the minimum sentence is six months. I.C. § 35-50-2-7(b).

       The advisory sentence is one year. Id. Here, the trial court imposed an

       aggregate term of eight years, with six years to be executed in the DOC and two

       years suspended to probation.


[20]   First, as to the nature of the offenses, Desroches entered M.M.’s residence

       without any invitation or consent to do so. After no one answered Desroches’s

       knocks at the door, he entered the residence through a living room window—a

       felony in and of itself—and lied to M.M.’s roommate just to get access to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 9 of 11
       M.M.’s bedroom. In other words, Desroches manipulated the situation so that

       he could take advantage of M.M. And to that point, Desroches was fully aware

       that M.M. had consumed a significant amount of alcohol and that she would be

       more intoxicated than usual. With this knowledge, Desroches fondled M.M.

       and had unprotected sex with her. And before M.M. awoke, Desroches left her

       bedroom and escaped through the front door. These actions are tantamount to

       a betrayal of M.M.’s and M.M’s roommate’s trust all for the purpose of sexual

       gratification. What Desroches did was, in blunt terms, abhorrent and

       psychologically traumatizing. Therefore, we find that the nature of the offenses

       does not render Desroches’s sentence inappropriate.


[21]   Next, as to his character, Desroches has displayed a pattern of deceitful

       behavior. After being confronted by M.M. with questions about what happened

       that evening, Desroches lied and said that he did not know what M.M. was

       talking about. Eventually, Desroches admitted that he was at M.M.’s

       apartment, but insisted that nothing happened. Then, only after M.M. had

       completed a rape kit did Desroches admit that he had touched her

       inappropriately. However, Desroches decided to enlist the help of a friend who

       contacted M.M. to convince her that she should not go to the police with this

       information. Moreover, it took the Bloomington Police Department nearly two

       years before they could find and arrest Desroches, who had absconded after he

       voluntarily told Detective Shrake what had occurred.


[22]   Though Desroches claims that he willingly cooperated with the police

       investigation and told officers everything he knew, it is not apparent that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 10 of 11
       Desroches has fully owned up to his actions or learned the error of his ways.

       Therefore, we find that Desroches’s character does not render his sentence

       inappropriate.


[23]   In sum, we will not revise Desroches’s sentence pursuant to Indiana Appellate

       Rule 7(B).


[24]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1919 | January 23, 2020   Page 11 of 11
