MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Oct 30 2019, 8:46 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Thomas Lowe                                           Curtis T. Hill, Jr.
Lowe Law Office                                          Attorney General of Indiana
New Albany, Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael James Begin, Jr.,                                October 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1185
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Andrew Adams,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Steven M. Fleece,
                                                         Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         10C01-1710-F4-94



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019                Page 1 of 8
                                          Statement of the Case

[1]   Michael Begin, Jr. (“Begin”) appeals the sentence imposed after he pled guilty

      to twenty (20) counts of Level 4 felony child molesting.1 Begin argues that his

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

      Concluding that Begin’s sentence is not inappropriate, we affirm his sentence.


[2]   We affirm.


                                                     Issue

                                   Whether Begin’s sentence is inappropriate.


                                                     Facts

[3]   As a student at Jeffersonville High School, Begin enrolled in an early childhood

      education program. This program allowed Begin to volunteer as a teacher’s

      assistant at a local elementary school. Begin also worked as a children’s

      caretaker at a YMCA. Begin utilized his positions to molest four children at the

      elementary school and fifteen children at the YMCA. Begin also molested one

      child, the daughter of a family friend, in her home. The ages of the children

      ranged from three (3) to eight (8) years old.




      1
          IND. CODE § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019   Page 2 of 8
[4]   Whether at the elementary school, the YMCA, or the child’s home, Begin

      would sit next to his victim, stick his hand down into her underwear, and touch

      and rub her vaginal and buttocks areas. He penetrated a victim’s vagina with

      his finger at least four times. Sometimes the child would resist but Begin would

      frequently ignore the efforts and continue molesting his victim. On at least one

      occasion, he molested two children at one time. Despite Begin’s attempts to

      avoid detection, several of the crimes were caught on video at both the

      elementary school and the YMCA.


[5]   In October 2017, the State initially charged Begin with two counts of child

      molesting as Level 4 felonies. However, the charging information was

      amended three times, each amendment adding additional charges as more

      victims came to light. The final charging information was filed in November

      2018 and included a total of twenty-seven (27) counts of child molesting: four

      as Level 3 felonies and twenty-three as Level 4 felonies. During the pendency

      of the case, two doctors found Begin competent to stand trial.


[6]   In January 2019, Begin pled guilty to twenty (20) counts of Level 4 felony child

      molesting. The twenty counts represent twenty different victims. In his plea

      agreement, Begin admitted to the allegations contained in the State’s third

      amended information and the probable cause affidavits. Under the plea

      agreement, the parties agreed that Counts one (1), two (2), three (3), four (4),

      five (5), six (6), seven (7), twelve (12), thirteen (13), and fourteen (14) would run

      consecutive to each other. Additionally, Counts fifteen (15), sixteen (16),

      seventeen (17), eighteen (18), nineteen (19), twenty (20), twenty-one (21),

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019   Page 3 of 8
      twenty-three (23), twenty-four (24), and twenty-seven (27) would run

      consecutive to each other, but those ten counts would run concurrent with

      Counts one (1), two (2), three (3), four (4), five (5), six (6), seven (7), twelve

      (12), thirteen (13), and fourteen (14). The agreement further stated that the

      sentencing range for the trial court was between two (2) and 120 years.


[7]   In April 2019, the trial court held a sentencing hearing. During the hearing,

      several of the parents of Begin’s twenty victims testified about the trauma and

      devastating effects Begin’s action had had on their children. The trial court

      identified the following six aggravating factors: (1) the significant harm,

      misery, loss, or damage done to the victims; (2) the “young age of the victims”

      in comparison to the requirements of the statute; (3) the acts were crimes of

      violence; (4) some crimes were committed in the presence of other children; (5)

      Begin was in a position of care, custody, or control of the victims; and (6) Begin

      encouraged the victims to not report the crimes. (Tr. 45). The trial court then

      identified the following two mitigating factors: (1) Begin’s lack of prior

      criminal or delinquent history and (2) his expression of remorse. The trial court

      then found that “the aggravators clearly outweigh the mitigating factors.” (Tr.

      46). The trial court sentenced Begin to twelve (12) years with ten (10) years

      executed and two (2) years suspended for each count, for an aggregate sentence

      of 120 years with 100 years executed and 20 years suspended to probation.

      Begin now appeals.


                                                  Decision


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019   Page 4 of 8
[8]   Begin argues that his aggregate sentence of 120 years, with 100 years executed

      and 20 years suspended to probation, is inappropriate.2 He requests that we

      “revise his sentence to the advisory sentence for each count[.]” (Begin’s Br. 28).

      “This Court may revise a sentence if it is inappropriate in light of the nature of

      the offense and the character of the offender. Ind. Appellate Rule 7(B). “The

      7(B) ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s

      judgment, not unlike the trial court’s discretionary sentencing determination.”

      Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,

      though, we conduct that review with substantial deference and give due

      consideration to the trial court’s decision—since the principal role of our review

      is to attempt to leaven the outliers, and not to achieve a perceived correct

      sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citation

      omitted). “Appellate Rule 7(B) analysis is not to determine whether another

      sentence is more appropriate but rather whether the sentence imposed is

      inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

      quotation marks and citation omitted), reh’g denied. The defendant has the

      burden of persuading the appellate court that his sentence is inappropriate.

      Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a

      sentence as inappropriate turns on the “culpability of the defendant, the severity




      2
        Begin sets forth his appellate argument as solely a challenge to the inappropriateness of his sentence.
      However, Begin challenges three of the aggravators found by the trial court. Because Begin has neither set
      forth the specific standard utilized in addressing aggravators and mitigators nor presented a cogent argument,
      we conclude that he has waived appellate review of this issue. See Ind. Appellate Rule 46(A)(8)(a); King v.
      State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (Noting that our supreme court has made clear that
      inappropriate sentence and abuse of discretion claims are to be analyzed separately.”).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019                   Page 5 of 8
       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).


[9]    When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crimes committed. Childress, 848 N.E.2d 1081.

       Here, Begin pled guilty and was convicted of twenty (20) Level 4 felonies. The

       sentencing range for a Level 4 felony is “for a fixed term of between two (2) and

       twelve (12) years, with the advisory sentence being six (6) years.” I.C. § 35-50-

       2-5.5. The trial court imposed consecutive sentences of twelve (12) years with

       ten (10) years executed and two (2) years suspended for ten of his Level 4 felony

       convictions, and concurrent twelve (12) year sentences with two (2) years

       suspended for the other ten Level 4 felony convictions. Accordingly, the trial

       court imposed an aggregate sentence of 120 years with 100 years executed and

       twenty (20) suspended to probation.


[10]   The nature of Begin’s numerous child molesting offenses is beyond troubling.

       As this Court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, Begin

       molested several children at an elementary school and a YMCA. He also

       molested one child inside her home. In total, Begin molested twenty different

       children by touching and fondling their vaginal and buttocks area. He also

       penetrated the vagina of at least four victims with his finger. Begin served as a

       teacher’s assistant and a caretaker and used his positions of trust and authority

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019   Page 6 of 8
       to abuse nineteen of his twenty victims. Begin’s offenses had a devastating

       effect on his young victims, who continue to suffer from his actions in a variety

       of ways. See Lasley v. State, 510 N.E.2d 1340, 1342 (Ind. 1987) (sexual

       victimization of children often leaves permanent psychological damage that is

       more devastating than physical injuries).


[11]   As for his character, Begin argues that his lack of criminal history warrants a

       reduced sentence. Begin is correct that when considering the character of the

       offender prong of our inquiry, one relevant consideration is the defendant’s

       criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).

       Here, however, the evidence in the record regarding his manipulative efforts

       and actions is more persuasive of Begin’s character than his prior good

       behavior. As detailed above, Begin actively sought and leveraged his

       community involvement to molest twenty different children. Based on the

       nature of the offenses and his character, Begin has failed to persuaded us that

       his sentence is inappropriate.3




       3
         Begin also argues that his sentence is a “de facto life sentence . . . [that] violates Art. 1, § 16 of the Indiana
       Constitution and the Eighth and Fourteenth Amendments to the United States Constitution[.]” (Begin’s Br.
       24). Although he cites Brown v. State, 10 N.E.3d 1 (Ind. 2014), he expressly limits his analysis to the Eighth
       Amendment and does not premise his argument on the Indiana Constitution. See Id. at 8 (revising 150 year
       sentence for a sixteen-year-old defendant to 80 years under Rule 7(B)). Thus, he has waived a constitutional
       claim based on Article 1, Section 16 of the Indiana Constitution by failing to allege a violation separate from
       the Eighth Amendment. See Ind. App. R. 46(A)(8)(a).
       To the extent that Begin claims his sentence violates the U.S. Constitution, we disagree. Begin relies upon
       Miller v. Alabama, 567 U.S. 460 (2012) and Graham v. Florida, 560 U.S. 48 (2010). In Miller, the Supreme
       Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without
       possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479. In Graham, the Supreme Court barred
       the imposition of LWOP for a juvenile convicted of a single non-homicide offense. Graham, 560 U.S. at 74-
       75. Miller and Graham are distinguishable from the instant case because they dealt with LWOP for juvenile

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019                         Page 7 of 8
[12]   Affirmed.


       Robb, J., and Mathias, J., concur.




       offenders. Here, Begin did not receive a mandatory sentence of LWOP. Additionally, Begin committed at
       least half of his crimes as an adult. We note that recently in Wilson v. State, 128 N.E.3d 492, 501 (Ind. Ct.
       App. 2019), another panel of our Court held that “Miller applies to sentences for juveniles that amount to a
       life sentence, regardless of the label applied by the trial court or the State.” Our Indiana Supreme Court has
       granted transfer in Wilson, thus that case and any holding therein has been vacated. See Ind. App. R. 58(A).
       Accordingly, we conclude that Begin did not receive a sentence that implicates the constitutional concerns
       analyzed in Graham and Miller.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1185 | October 30, 2019                    Page 8 of 8
