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

THOMAS W. VANES                                     GREGORY F. ZOELLER
Crown Point, Indiana                                Attorney General of Indiana

                                                    AARON J. SPOLARICH
                                                    Deputy Attorney General

                                                                                     FILED
                                                    Indianapolis, Indiana

                                                                                  Oct 09 2012, 9:24 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                          CLERK
                                                                                        of the supreme court,
                                                                                        court of appeals and
                                                                                               tax court




JOHN RAY HENRY,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 45A03-1111-CR-533
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Diane Ross Boswell, Judge
                     Cause Nos. 45G03-0806-FA-24 & 45G03-0807-FA-27


                                         October 9, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                     STATEMENT OF CASE

          John Ray Henry (“Henry”) appeals the sentence he received after he pled guilty to two

counts of child molesting, class C felonies.1

          We affirm.

                                             ISSUE

                  Whether this court should remand for resentencing based on comments
                  by the trial court at the sentencing hearing.

                                FACTS AND PROCEDURAL HISTORY

          On June 24, 2008, the State filed an information alleging in Cause No. 45G03-0806-

FA-24 (“No. 24”) that Henry committed two counts of child molesting (class A and C

felonies) against victim D.A. and one count of child molesting (class C felony) against victim

J.L. The information stated that offenses involving D.A. occurred during a time period

extending from September 1, 2004 to December 31, 2004. The information also stated that

the offense involving J.L. occurred during a time period extending from January 1, 2006 to

November 21, 2007.

          On July 3, 2008, the State filed a second information alleging in Cause No. 45G03-

0807-FA-27 (“No. 27”) that Henry committed two counts of child molesting (class A and C

felonies) against victim N.S. The information stated that the offenses involving N.S.

occurred during a time period extending from January 1, 2004 to December 31, 2006.


1
    Ind. Code § 35-42-4-3(b).



                                                2
       Henry successfully moved to sever Counts 1 and 2 (pertaining to the molestation of

D.A.) from Count 3 (pertaining to the molestation of J.L.) in No. 24. Thereafter, on August

11-12, 2008, a jury trial was held on Counts 1 and 2 in No. 24, and the jury found Henry

guilty on both counts. After finding Henry’s criminal history and position of trust as

aggravators, the trial court sentenced Henry on September 30, 2009, to twenty-five years on

Count 1 and three years on Count 2. The sentences were ordered to run concurrently. Henry

appealed his convictions, and we affirmed in a memorandum decision. See Henry v. State,

No. 45A03-0911-CR-513 (Ind. Ct. App. August 31, 2010).

       Subsequently, on September 28, 2011, Henry entered an open guilty plea on Count 3

of No. 24. Henry admitted that during a period beginning in early 2006 and ending in late

2007, he, on several occasions, molested J.L., a girl who was then under fourteen years of

age. Henry touched or rubbed J.L.’s buttocks, over and under her clothes, with the intent to

arouse or satisfy the sexual desires of either himself or J.L. During part of this time period,

Henry and his family lived with J.L.’s father, and Henry molested J.L when she came to visit

her father.

        In the same open plea, Henry also admitted to Count 2 (class C felony child

molesting) in No. 27. In exchange, the State agreed to dismiss Count 1 (class A felony child

molesting). Henry admitted that during a period beginning in 2004 and ending in 2006, he

molested N.S., a girl who was less than fourteen years of age. On several occasions during

this time period, Henry rubbed his hand on N.S.’s “crotch area.” (App. 156). Henry

committed these acts with the intent to arouse or satisfy the sexual desires of either himself or

                                               3
N.S. During this period, Henry and his family, along with N.S., lived with N.S.’s aunt.

       The trial court accepted Henry’s plea. On the first day of the sentencing hearing, J.L.

and N.S. testified, and Henry’s counsel was granted a continuance until the next day to

contact and produce his wife as a rebuttal witness. On the next day, Henry’s counsel made

the following statements:

       I’ve never had victims in court laugh and giggle as if this is some sort of joke,
       as if this is some sort of game. I walked into the Court today to smiling,
       laughing victims. I don’t understand that. I don’t get that . . . . And what I see
       is somebody that isn’t traumatized. What I see [are] people that think this is
       funny, that this is a joke, and to me, it’s despicable, it really is.

       ****

       It wouldn’t be relevant but for the State is going to come in a moment and ask
       you to give him the maximum sentence based on the damage to these victims.
       That’s why it’s relevant and that’s why I’m pointing it out.

       By no way is [Henry] backtracking from his acceptance of responsibility. It’s
       just something that I think has to be brought out to the Court, Judge.

(Tr. 49-50).

       Subsequently, the trial court asked Henry if he wanted to make a statement. In

response, Henry stated that “[i]t’s been a devastating—devastating to my family and to

myself and everyone else, I see. But I just—I just want to move on with my life and—which

isn’t much of a life at this point. That’s about all I got to say.” (App. 58).

       The trial court then found as aggravating circumstances that Henry was in a position

of trust when he molested the victims and that the molestations occurred over a protracted

period of time. The trial court found Henry’s guilty plea to be a mitigating circumstance.


                                               4
After making these findings, the trial court stated the following:

        And I will note that I have not heard—even though you accepted your
        responsibility, I didn’t hear any remorse, Mr. Henry; I didn’t hear that.

        But you and your counsel are angry at the young ladies because they don’t
        carry the demeanor that you think they should carry in a courtroom at this point
        in time, and to me, that says, you know, something about your character.

(Tr. 59).2

        The trial court then sentenced Henry to six years on Count 3 of No. 24 and six years to

Count 2 of No. 27, with the sentences to run consecutively. The trial court ordered that the

aforementioned sentences run consecutively to the prior sentences under No. 24. Thus, the

total executed sentence was thirty-seven years. The trial court stated that “[t]he reason for

the consecutive sentencing is that each young lady suffered individual harm and each should

receive the justice that she deserves to the extent that this Court can provide any justice.”

(Tr. 60).

        Henry now appeals the twelve-year executed sentence imposed after he pled guilty to

Count 3 of No. 24 and Count 2 of No. 27.

                                                    DECISION

        Henry contends, without citation to any authority, that the trial court erred in using

counsel’s remarks to negatively assess Henry’s character. Henry points out that he did not

repeat or adopt the earlier comments by counsel. Furthermore, he made no comment that

evinced any anger toward the victims.


2
 In its written sentencing order, the trial court found the following mitigating circumstances: “The defendant
has [pled] guilty [and] has admitted guilt and accepted responsibility for his actions.” (App. 237).
                                                      5
       When evaluating sentencing challenges under the advisory sentencing scheme, we

first confirm that the trial court issued the required sentencing statement, which includes a

reasonably detailed recitation of the trial court’s reasons for imposing a particular sentence.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). If the recitation includes a finding of

mitigating or aggravating circumstances, the statement must identify all significant mitigating

and aggravating circumstances and explain why each circumstance has been determined to be

mitigating or aggravating. Id.

       So long as the sentence is within the statutory range, it is subject to review only for

abuse of discretion. Id. An abuse of discretion occurs if the decision is clearly against the

logic and effect of the facts and circumstances before the court, or the reasonable, probable,

and actual deductions to be drawn therefrom. Id. One way in which a trial court may abuse

its discretion is by failing to enter a sentencing statement at all. Id. Another way is to enter a

sentencing statement that explains reasons for imposing a sentence, including mitigating and

aggravating circumstances, which are not supported by the record. Id. at 490-91. A court

may also abuse its discretion by citing reasons that are contrary to law. Id. at 491. If this

court finds an abuse of discretion, we may remand for resentencing if we cannot say with

confidence that the trial court would have imposed the same sentence had it limited its

consideration to proper considerations. Id.

       In this case, evidence was taken over the course of two days. At the conclusion of

evidence, the trial court had many things to consider in making its decision, including victim

statements, the pre-sentence investigation report, Henry’s in-court statement, and the

                                                6
argument made on Henry’s behalf by his counsel. Considering the record before us, we find

that the trial court’s statement regarding counsel’s argument did not constitute a specific

finding of an improper aggravating factor; instead, the trial court was making a general

comment expressing its disappointment that both Henry’s statement and his counsel’s

argument seemed devoid of any expression of remorse.

       The trial court is in a better position than a court of review in assessing whether a

defendant is remorseful about what he or she has done. See Corralez v. State, 815 N.E.2d

1023, 1025 (Ind. Ct. App. 2004). This court merely has the written record before it, whereas

the trial court was present at the sentencing hearing and could observe a number of factors,

including, but not limited to (1) the defendant’s demeanor; (2) the emotion, or lack thereof, in

the defendant’s voice; and (3) the impact of the defendant’s statement on the victims and

their families. See Taylor v. State, 944 N.E.2d 84, 90 (Ind. Ct. App. 2011) (holding that a

trial court is in the best position to assess whether defendant knowingly or intelligently

waived counsel); In re J.H., 911 N.E.2d 69, 73 (Ind. Ct. App. 2009) (holding that the trial

court occupies a unique position to assess evidence), trans. denied; Morgan v. State, 903

N.E.2d 1010, 1019 (Ind. Ct. App. 2009) (holding that the trial court is in the best position to

assess honesty and integrity of a juror); Hooper v. State, 779 N.E.2d 596, 599 (Ind. Ct. App.

2002) (holding that a trial court is in the best position to assess the effect of discovery

violations).

       We cannot say that the trial court’s general comments were erroneous, and, even if

they were, we can say with confidence that the trial court would have imposed the same

                                               7
sentence had it limited its evaluation to other sentencing factors. See Anglemyer, 868 N.E.2d

at 491. The trial court’s written sentencing order clearly identified proper aggravating and

mitigating factors used to reach the appropriate sentence.3

        Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.




3
 A person who commits a class C felony “shall be imprisoned for a fixed term of between two (2) and eight
(8) years, with the advisory sentence being four (4) years.” I.C. § 35-50-2-6.

                                                   8
