MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                     May 20 2019, 9:18 am
regarded as precedent or cited before any
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
Christopher Sturgeon                                    Curtis T. Hill, Jr.
Clark County Public Defender Officer                    Attorney General of Indiana
Jeffersonville, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Harry Truman Smith,                                     May 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2493
        v.                                              Appeal from the Clark Circuit
                                                        Court
State of Indiana,                                       The Honorable Andrew Adams,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        10C01-1510-F1-3



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019                  Page 1 of 10
[1]   Harry Truman Smith appeals his sentence for two counts of child molesting.

      Smith raises three issues which we revise and restate as whether his sentence is

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

      reverse and remand.


                                      Facts and Procedural History

[2]   “[A] couple [of] days” prior to October 7, 2015, Smith, born on November 2,

      1948, wrestled with E.B., who was the daughter of his niece and seven years

      old, and he fondled her vagina with the intent to arouse or satisfy sexual

      desires. Appellant’s Appendix Volume II at 9. On October 7, 2015, Smith

      again fondled E.B.’s vagina with the intent to arouse or satisfy sexual desires.


[3]   On October 8, 2015, the State charged Smith with one count of child molesting

      as a level 1 felony and one count of child molesting as a level 4 felony. On

      August 10, 2016, two competency evaluation reports were submitted to the

      court. The first report, dated June 16, 2016, and signed by Dr. Mary L.

      Bouldin, indicates that Smith stated he had received a seventh grade education

      and that his ex-wife taught him how to read and write, that he “was in rehab for

      over a year after a severe motor vehicle accident with a traumatic brain injury,

      after he was in a coma for 21 days,”and that he was able to read and write

      before the accident but could not read and write currently. Id. at 45. The report

      also states that “[d]ue to [Smith’s] significant memory deficits he does not

      appear competent to stand trial or is . . . likely to be rendered competent.” Id. at

      47. The second report, dated July 5, 2016, and signed by Dr. Asad Ismail,

      indicates that Smith “at this point is not competent to stand trial” and, “because
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019   Page 2 of 10
      of cognitive impairment and traumatic brain injury, he would not be able to

      defend himself or cooperate.” Id. at 49. Following a competency hearing, the

      court found Smith temporarily unable to stand trial and sent Smith to the

      Logansport State Hospital for confinement for further evaluation and treatment.

      A comprehension to stand trial report, signed by licensed psychologist Robert

      E. Connell, indicates that Smith was prescribed Prozac for mood stability

      beginning on February 24, 2017, and was referred to legal education and other

      therapeutic programming.


[4]   In April 2017, a letter from the Indiana Family and Social Services

      Administration addressed to the court states that Smith had “attained the ability

      to understand the proceedings and assist in the preparation of his defense,” and

      he was transported to the Clark County Jail. Id. at 67. On August 10, 2017, he

      filed a Notice of Intent to Interpose an Insanity Defense, and following a status

      conference on September 7, 2017, the court appointed Drs. Bouldin and Ismail to

      examine and evaluate Smith. On December 6, 2017, Dr. Bouldin filed an

      evaluation, which indicates in part that:


              Although technically [Smith] does not appear to meet the insanity
              defense, his dementia diagnosis does appear mitigating in the
              ongoing legal proceedings against him. In particular, it would be
              relevant as to whether he had been charged with previous crimes
              of a similar nature prior to his development of dementia or the
              dementia may have led to impairment in judgement [sic] and
              impulse control that played a role in the current proceedings.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019   Page 3 of 10
      Id. at 98. On February 16, 2018, Dr. Ismail filed an evaluation, which indicates

      that, in his opinion, “considering his traumatic brain injury and dementia,

      [Smith] is not competent to stand trial. His dementia is definitely [a]ffecting his

      insight and also his ability to understand the ongoing legal proceedings against

      him.” Id. at 143.


[5]   On April 30, 2018, the parties filed a plea agreement, which states that Smith

      agreed to enter a plea of guilty to “Count 1: Am. Child Molest Level 4 fel.” and

      “Count 2: Child Molest Level 4 fel.” pursuant to “I.C. 35-42-4-3(b).” Id. at 162.

      The plea agreement also states “Blind plea sentence to court.” Id. At a July 12,

      2018 hearing, Smith pled guilty to two counts of child molesting as level 4

      felonies, and the court advised him of his rights and took testimony regarding

      the agreement. Smith stated he was treated for “[b]rain injury” and answered

      affirmatively that he had “been treated for any mental illness or now suffered

      from any mental or emotional disability.” Transcript Volume II at 19. He

      stated “Well, I’m going to try” when asked if he understood the process that

      was being undertaken, and the court indicated that, at any time Smith had a

      question, he could ask his attorney or ask the court after he consulted with his

      attorney. Id. The court asked whether Smith understood what aggravating and

      mitigating circumstances were and, when Smith indicated that he did not, it

      provided definitions. When the court asked if Smith had an opportunity to

      discuss the plea agreement with his lawyer, Smith stated first that he had not

      and then indicated “Oh, yeah, yeah” after his attorney stated “We just talked

      about it here.” Id. at 22. After the court established a factual basis for the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019   Page 4 of 10
      charges, the State “move[d] to admit the Probable Cause Affidavit based on the

      factual basis,” the court asked if there was any objection and Smith’s counsel

      stated, “[n]o objection,” and the court admitted the probable cause affidavit “in

      support of the factual basis.” Id. at 25.


[6]   At sentencing, the court discussed the presentence investigation report (the

      “PSI”), which states in part that the Probation Department recommended

      “Count I[,] Level 4 Felony: 8 years, 2 suspended[;] Count II[,] Level 4 Felony;

      8 years, 2 suspended[;] Concurrent.” Appellant’s Appendix Volume II at 161.

      Smith answered affirmatively when his counsel asked him if he wanted to

      apologize to his niece and her daughter. When the court asked for argument,

      Smith’s counsel stated in part that Smith’s “mental faculties have failed and

      that, at one point, he was deemed to be incompetent and sent to the State

      Mental Health Hospital,” which “certainly, played a major part, . . . in the

      crime”; that, “[t]hough it wasn’t enough to raise to the level of insanity or

      something like that, it was evident that [Smith] was incompetent for a period of

      time”; and that “working with him, he’s, you see that . . . he can’t read, his

      mental education, he’s not very well equipped to deal with the declining fact

      he’s in his age.” Transcript Volume II at 34. The Court found “that [E.B.] is

      under twelve (12) years old” as an aggravating factor and that Smith “has no

      history of delinquent or criminal activity and has led a law biding [sic] life for a

      substantial period for [sic] the commission of the crime” to be mitigating

      factors. Id. at 35. It sentenced Smith to eight years to the Indiana Department




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019   Page 5 of 10
      of Correction with two years suspended to strict terms of probation on each

      count, and ordered the sentences to run consecutively. Id.


[7]   Smith filed a motion to correct errors. Following a hearing, the court denied

      the motion.


                                                       Discussion

[8]   The issue is whether Smith’s sentence is inappropriate in light of the nature of

      the offense and his character. 1 Ind. Appellate Rule 7(B) provides that we “may

      revise a sentence authorized by statute if, after due consideration of the trial

      court’s decision, [we find] that the sentence is inappropriate in light of the

      nature of the offense and the character of the offender.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

      The Indiana Supreme Court has observed that our criminal justice system has

      not always “adequately and properly respond[ed] to and treat[ed] those with

      mental health issues.” Wampler v. State, 67 N.E.3d 633, 634 (Ind. 2017).


[9]   With respect to the nature of the offense, Smith argues, “[without] minimizing

      the wrongfulness of the behavior,” that the offenses for which he was convicted

      are “not the worst of these types of offenses” as defined statutorily. Appellant’s




      1
        To the extent that Smith argues the trial court abused its discretion by accepting his plea of guilty, we note
      that a conviction based upon a guilty plea “may not be challenged by motion to correct errors and direct
      appeal” and that “[t]he proper avenue for challenging one’s conviction pursuant to a guilty plea is through
      filing a petition for post-conviction relief and presenting evidence at a post-conviction proceeding.” Hayes v.
      State, 906 N.E.2d 819, 821 n.1 (Ind. 2009) (quoting Tumulty v. State, 666 N.E.2d 394, 395-396 (Ind. 1996)).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019                         Page 6 of 10
Brief at 17-18. He contrasts Ind. Code § 35-42-4-3(a), which provides that a

“person who, with a child under fourteen (14) years of age, knowingly or

intentionally performs or submits to sexual intercourse or other sexual conduct

(as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony,” 2

with Ind. Code § 35-42-4-3(b), under which he was convicted of two counts of

level 4 felonies and received enhanced sentences of eight years for each. 3 In his

reply brief, he contends that the offenses for which he was convicted resulted in

no physical injury and were committed against the same child “over a short

period of time.” Appellant’s Reply Brief at 4. With respect to his character,

Smith argues that the sentence was inappropriate given that he “was sixty nine

years old, only had a seventh grade education, had suffered a traumatic brain

injury, had dementia, and had no prior [criminal] record.” Appellant’s Brief at

at 4. The State responds that Smith “showed no genuine remorse for molesting

his 7-year-old niece,” acknowledges that Smith has serious cognitive and

functioning issues, and contends that Smith did not prove “that his cognitive




2
  Ind. Code § 35-31.5-2-221.5 provides that “[o]ther sexual conduct” means an act involving: “(1) a sex organ
of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of
a person by an object.” Ind. Code § 35-50-2-5 provides that a person who commits a level 3 felony after June
30, 2014, “shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory
sentence being nine (9) years.”
3
  Ind. Code § 35-42-4-3(b) provides in relevant part that a “person who, with a child under fourteen (14) years
of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to
arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Level
4 felony.” Ind. Code § 35-50-2-5.5 provides that a “person who commits a Level 4 felony shall be imprisoned
for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.”

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019                        Page 7 of 10
       problems had any influence on his decision to coerce [a] seven-year-old family

       member to submit to child molesting.” Appellee’s Brief at 12.


[10]   Our review of the nature of the offenses reveals that Smith fondled the daughter

       of his niece twice, a couple of days apart. Our review of the character of the

       offender reveals that Smith pled guilty, and that the plea agreement provided

       for a “Blind plea sentence.” Appellant’s Appendix Volume II at 162. The PSI

       indicates that Smith has no prior criminal history and that his overall risk

       assessment score using the Indiana risk assessment system places him in the low

       risk to reoffend category. At sentencing, the court found that Smith had no

       history of delinquent or criminal activity and had led a law-abiding life for a

       substantial period before the commission of the offenses. After due

       consideration, we conclude that Smith’s sentence is inappropriate and that the

       sentences of eight years with two years suspended for each count should be

       served concurrently. See Wampler, 67 N.E.3d at 634-635 (noting that Wampler

       was initially found incompetent to stand trial, received treatment, and was later

       found competent, and revising his aggregate sentence).


[11]   For the foregoing reasons, we reverse Smith’s sentence and remand this case to the trial

       court for entry of an amended sentencing order and any other necessary documents.


[12]   Reversed and remanded.


       Mathias, J., concurs.


       May, J., dissents with opinion.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019   Page 8 of 10
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Harry Truman Smith,                                     May 20, 2019
       Appellant-Defendant,                                    Court of Appeals Case No.
                                                               18A-CR-2493
               v.                                              Appeal from the Clark Circuit
                                                               Court
       State of Indiana,                                       The Honorable Andrew Adams,
       Appellee-Plaintiff.                                     Judge
                                                               Trial Court Cause No.
                                                               10C01-1510-F1-3



       May, Judge, dissenting.


[13]   I respectfully dissent because I would not reduce Smith’s sentence for two

       counts of Level 4 felony child molesting from sixteen years to eight years.


[14]   At sentencing, the victim’s mother, who is Smith’s niece and had been his

       caretaker until these molestations occurred, testified:


               [H]e has no remorse for what he chose to do to my seven (7) year
               old daughter. When we were in Court the last time, I heard him
               say to his attorney that it wasn’t his fault. It wasn’t only him.
               He was blaming my child for these acts, that she was involved,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019        Page 9 of 10
               when she is not old enough to even have knowledge of what
               something like that was. And also, he told her if she did not do
               what adults told her to do, that the devil would get her. That was
               what kept her afraid. He told her that, if she broke promises that
               she would have to go to the devil. We are still, today, trying to
               get her to understand that that’s not true. She has nightmares.
               Anytime she sees someone that looks like him, she’ll have a
               nightmare that night. I loved you, Truman, but she did not, you
               had no right to violate that trust that I’ve given you my entire life.


       (Tr. Vol. II at 31.)


[15]   While the record demonstrates Smith has dementia and cognitive deficits from

       traumatic brain injury, there is no suggestion that these memory or processing

       issues were responsible for Smith being unable to appreciate the heinous

       wrongfulness of his touching his seven-year-old great-niece’s vagina on multiple

       occasions. Were there such evidence, I would question whether Smith should

       have been advised to plead guilty, but I would not question that society should

       be protected from Smith for at least sixteen years.


[16]   As I find nothing inappropriate about Smith’s sentence, I respectfully dissent.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2493 | May 20, 2019   Page 10 of 10
