MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jan 31 2020, 10:30 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bryan M. Truitt                                          Curtis T. Hill, Jr.
Truitt Law Office                                        Attorney General of Indiana
Valparaiso, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David E. Allen,                                          January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-986
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael Bergerson,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         46D01-1801-FA-112



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020                  Page 1 of 8
                                             Case Summary
[1]   David E. Allen appeals his aggregate fifty-five-year sentence imposed by the

      trial court following his guilty plea to class A felony child molesting and level 4

      felony child molesting. He argues that his sentence is inappropriate in light of

      the nature of the offense and his character. Finding that Allen has not met his

      burden of demonstrating that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   M.A. is Allen’s granddaughter. In October 2017, eight-year-old M.A. told her

      mother that every time she stayed overnight at Allen’s house, he would sleep

      with her and place his hands on her “private area” through her clothes and rub

      her “pee pee.” Appellant’s App. Vol. 2 at 18 (probable cause affidavit). 1 M.A.

      told her mother that she cried “every time,” but Allen told her “it’s okay to

      cry.” Id. Allen began molesting M.A. when she was seven years old and

      stopped around her eighth birthday in September 2017. Allen told M.A. that it

      was “their secret and not to tell anyone.” Id. at 20. M.A. later learned at school

      that the touching was inappropriate. After M.A. reported the molestations, she

      had nightmares and trouble sleeping.


[3]   M.A.’s mother notified relatives about the allegations and began receiving

      messages about other family members who may have been molested by Allen.



      1
        Our recitation is based in part on the probable cause affidavit, which was attached to Allen’s
      presentence investigation report to set forth the circumstances attending the commission of the charged
      offenses. Appellant’s App. Vol. 2 at 49.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020              Page 2 of 8
      One relative, C.S.C., and another victim, S.K., came forward with allegations

      of sexual abuse by Allen.


[4]   C.S.C. is Allen’s stepgranddaughter. She told police that the first molestation

      happened the night after her mother and Allen’s son got married in 2000.

      C.S.C., who was then six years old, was asleep on a couch in Allen’s house.

      Allen began to rub her legs and back, then progressed to her vagina, which he

      rubbed under her clothes. C.S.C. stated that “it seemed every time she went

      there after that, he touched her.” Id. at 20. Allen would “put his tongue on her

      vagina and insert his fingers into her vagina.” Id. He would also approach her

      when she got out of the shower and make her “lay down on the bed and rub his

      testicles while he masturbated” and then he would “ejaculate on her stomach.”

      Id. C.S.C. stated that over the years, Allen tried to get her to perform oral sex

      on him and even bought flavored condoms. She said that on one occasion,

      Allen made her watch as he forced a ten-year-old autistic relative to perform

      oral sex on him. Allen then remarked to C.S.C., “[S]ee, he likes it.” Id. C.S.C.

      indicated that Allen would have her sit on him and put the “tip of his penis in

      her vagina.” Id. She stated that Allen had intercourse with her in 2005 when

      she was eleven years old. Id. C.S.C. said that Allen would “give her money and

      buy her things, like a necklace.” Id. C.S.C. never told anyone because she was

      “ashamed.” Id.


[5]   After hearing of the allegations, Allen attempted to commit suicide by

      overdosing on medications. While he was in the hospital, he admitted to his

      wife that he had molested M.A. and stated, “I don’t know why I did it.” Id. at

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020   Page 3 of 8
      18. He also confessed to his pastor that he “must have done it.” Id. at 19. After

      Allen’s suicide attempt, one of Allen’s sons told police that when he was

      around twelve years old, he was in Allen’s house and found a drawer that

      contained pictures of his preteen cousin, who is now deceased, posing

      completely nude.


[6]   The State charged Allen with eleven counts of class A felony child molesting

      and one count of level 4 felony child molesting involving M.A., C.S.C., S.K.,

      and two other children. 2 Pursuant to a written plea agreement, Allen pled

      guilty to performing deviate sexual conduct on C.S.C., a class A felony,

      between September 2000 and June 2001, and fondling M.A., a level 4 felony,

      between September and November 2016. The State agreed to dismiss the

      remaining charges. The agreement left sentencing to the trial court’s discretion

      except for a stipulation that the sentences run consecutively. During

      sentencing, the State read letters from family members which described how

      Allen’s acts had hurt and devastated the family. The trial court found as

      mitigating factors Allen’s lack of any significant criminal history, his low risk to

      reoffend, his guilty plea, and his poor physical and mental health. The trial

      court found as aggravating factors the scope and magnitude of Allen’s conduct

      involving multiple victims over many years, his violation of trust, and his lack

      of remorse. The trial court sentenced the seventy-two-year-old Allen to an



      2
        During a forensic interview, S.K. stated that Allen molested her from the time she was five years old until
      she was seven. She indicated that Allen forced her to touch his penis and had intercourse with her even
      though she cried and told him no. Allen told her not to tell anyone and would buy her gifts. Appellant’s
      App. Vol. 2 at 21.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020                     Page 4 of 8
      aggregate fifty-five year executed term and identified him as a credit restricted

      felon. This appeal ensued.


                                     Discussion and Decision3
[7]   Allen requests that we reduce his sentence pursuant to Indiana Appellate Rule

      7(B), which 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.” “Sentence review under Appellate Rule 7(B) is very deferential to

      the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Whether we

      regard a sentence as inappropriate “turns on our sense of the culpability of the

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

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

      1219, 1224 (Ind. 2008). The principal role of appellate review is to attempt to

      “leaven the outliers[.]” Id. at 1225. “The question under Appellate Rule 7(B) 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). Allen bears the burden of persuading us that his

      sentence is inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).




      3
        Indiana Appellate Rule 46(A)(7) states that an appellant’s summary of argument “should contain a
      succinct, clear, and accurate statement of the arguments made in the body of the brief.” Allen’s two-
      page summary of argument is just as long as the argument itself.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020              Page 5 of 8
[8]   Turning first to the nature of the offense, we observe that “the advisory sentence

      is the starting point the Legislature has selected as an appropriate sentence for

      the crime committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218. Allen was sentenced to forty-five years for the

      class A felony and ten years for the level 4 felony. The sentencing range for a

      class A felony is between twenty and fifty years, with the advisory sentence

      being thirty years. Ind. Code § 35-50-2-4(a). The sentencing range for a level 4

      felony is between two and twelve years, with a six-year advisory term. Ind.

      Code § 35-50-2-5.5. While Allen’s sentence exceeds the advisory sentences for

      the crimes charged, it is seven years below the maximum allowable sentence.

      As part of Allen’s plea agreement, he agreed to consecutive sentences.


[9]   When determining the appropriateness of a sentence that deviates from an

      advisory sentence, we consider whether there is anything more or less egregious

      about the offense as committed by the defendant that “makes it different from

      the typical offense accounted for by the legislature when it set the advisory

      sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). Allen

      acknowledges that his offenses are “depraved” and “vile” and that he should be

      punished. Appellant’s Br. at 7. However, Allen claims that the sentence is

      “excessive” and will basically have the effect of a life sentence. Id. Even if the

      trial court had sentenced Allen to the minimum of twenty years for the class A

      felony, Allen was designated a credit restricted felon and therefore would earn

      one day of good time credit for every six days served. Ind. Code § 35-50-6-3.1.

      And under the sentencing statutes in effect when Allen committed that crime,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020   Page 6 of 8
       the trial court was authorized to suspend only that part of the sentence above

       the minimum sentence. Ind. Code §35-50-2-2(b) (1999). Therefore, Allen

       would be required to serve a minimum of almost seventeen years executed for

       the class A felony alone.


[10]   Our review of Allen’s offenses indicates that he took advantage of his

       relationship with young, vulnerable children in order to fulfill his own

       despicable desires. Allen violated his position of trust with M.A. and C.S.C.

       Even though M.A. “cried out,” Allen continued to molest her for almost a year.

       Likewise, he molested C.S.C. for almost eight years. We agree with the trial

       court’s observation that Allen “used his family as a bre[e]ding ground for his

       uncontrollable deviancy.” Tr. Vol. 2 at 55. We find that the nature of the

       offenses does not warrant a reduction in his sentence.


[11]   Allen fares no better when we consider his character. Allen proclaims to be a

       “changed” man, and that he has “extreme remorse and shame.” Appellant’s Br.

       at 8. He also claims that he will be “extraordinarily vulnerable” in prison. Id.

       at 10. His self-serving argument is not well taken. Our review of the record

       indicates that he never apologized to his victims. In fact, during his sentencing

       hearing, he denied that he molested M.A. and C.S.C. as many times as they

       alleged, and stated, “I don’t know where they’re coming up with all this.” Tr.

       Vol. 2 at 39. Allen also contends that his sentence is inappropriate because of

       his lack of significant criminal history. However, the record indicates that

       Allen was convicted three times of operating a vehicle while intoxicated.

       Throughout Allen’s brief, he claims that his excessive drinking caused him to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020   Page 7 of 8
       not remember the molestations or specific acts. 4 This does not reflect favorably

       on his character. He also asserts that his “biography is not the worst of the

       worst justifying no chance at freedom.” Appellant’s Br. at 10. We disagree.

       Allen molested multiple victims, including family members, over many years.

       We agree with the trial court’s observation that Allen does not seem to

       understand or appreciate the “incalculable misery that he has caused his

       victims.” Appellant’s App. Vol. 2 at 55. 5


[12]   We conclude that Allen has failed to carry his burden to show that his sentence

       is inappropriate based on the nature of the offenses and his character.

       Therefore, we affirm.


[13]   Affirmed.


       May, J., and Pyle, J., concur.




       4
        Under Indiana Appellate Rule 7(B), our consideration of Allen’s criminal history encompasses his criminal
       conduct and is not limited to his prior convictions.
       5
        Allen also argues that the sentence is inappropriate in light of his poor physical and emotional health, but
       he does not explain how these relate to his character.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-986 | January 31, 2020                     Page 8 of 8
