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                                 Jan 28 2014, 11:31 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

CHRIS P. FRAZIER                                            GREGORY F. ZOELLER
Indianapolis, Indiana                                       Attorney General of Indiana

                                                            MICHAEL GENE WORDEN
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

JESSE IMEL,                                         )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 48A04-1306-CR-280
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                           The Honorable David A. Happe, Judge
                             Cause No. 48C04-1208-FA-1628


                                         January 28, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                           Case Summary

          Jesse Imel (“Imel”) pled guilty to Incest, as a Class B felony,1 and was sentenced to

eighteen years imprisonment. He now appeals his sentence.

          We affirm.

                                                Issues

          Imel presents two issues for our review, which we restate as:

             I.    Whether the trial court abused its discretion when finding aggravating
                   factors at sentencing; and

            II.    Whether the sentence is inappropriate under Appellate Rule 7(B).

                                     Facts and Procedural History

          Imel, born in 1980, was the father of a child, J.I., who was born out of wedlock in

2004. Imel and J.I.’s mother, Misty, agreed that J.I. would spend almost every weekend with

Imel. Between February 2011 and June 2012, J.I. visited Imel at his home each weekend or

every other weekend. At times, J.I. would sleep in Imel’s bedroom. On several of these

occasions, Imel digitally penetrated J.I.’s vagina. J.I. eventually reported this conduct to

Misty, which led to the initiation of a police investigation.

          On August 28, 2012, the State charged Imel with Child Molesting, as a Class A

felony;2 Attempted Child Molesting, as a Class A felony;3 Incest, as a Class B felony; and

Attempted Dissemination of Matter Harmful to Minors, as a Class D felony.4


1
    Ind. Code § 35-46-1-3(a).

2
    I.C. § 35-42-4-3.

3
    I.C. §§ 35-42-4-3 & 35-41-5-1.

                                                  2
          On April 22, 2013, Imel entered a guilty plea as to the charge of Incest, as a Class B

felony. Consequently, the State moved to dismiss the other charges against Imel.

          On May 13, 2013, a sentencing hearing was conducted. Misty and a friend, Heither,

testified about the effect of Imel’s conduct upon J.I. The court also heard testimony and

received evidence concerning Imel’s ongoing mental health problems. At the conclusion of

the hearing, the trial court sentenced Imel to eighteen years imprisonment.

          This appeal followed.

                                     Discussion and Decision

                                       Aggravating Factors

          Imel’s first contention on appeal is that the trial court abused its discretion when it

found aggravating factors using facts that were not incorporated into his guilty plea.

          Generally, we review a trial court’s sentencing decision for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). An abuse of discretion occurs when

the trial court’s decision is clearly against the logic and effect of the facts and circumstances

before it. Id. At sentencing, where a trial court has abused its discretion, we will only

reverse and remand for resentencing “if we cannot say with confidence that the trial court

would have imposed the same sentence had it properly considered reasons that enjoy support

in the record.” Id. That is, if the trial court would have reached the same result in fixing a

defendant’s sentence even with proper determination of aggravating and mitigating factors,




4
    I.C. §§ 35-49-3-3 & 35-41-5-1.

                                                 3
we will not disturb the sentence unless it is inappropriate under Appellate Rule 7(B) or

subject to some other defect.

       Here, among the aggravating circumstances found by the trial court are that Imel

exposed J.I. to pornography and barred the door to the room during the commission of the

subject offense to which Imel pleaded guilty. Imel recognizes our supreme court’s holding

that a trial court need not “turn a blind eye to the facts of the incident” that gave rise to a

guilty plea, where a plea agreement is silent as to limits upon the trial court’s use of

“enhancements from underlying charges that were dismissed, or from the original charges

from which a lesser included plea is taken.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind.

2013). Imel observes, however, that here he pled guilty without a written plea agreement,

and argues that “the rationale … in Bethea does not apply, since Imel did not contract with

the State for a specific set of terms or benefits.” (Appellant’s Br. at 10.)

       We do not agree with Imel’s argument that this distinction means that the trial court’s

use of the aggravating factors was an abuse of discretion. Here, Imel pled guilty without a

written plea agreement; but he did so with apparent knowledge that the State would move to

dismiss the other charges against him:

       [IMEL]:      … The State has offered, um, to dismiss Counts I, II and III, and
       IV, upon [Imel’s] pleading to Count…

       [STATE]:      It’s not a plea offer, he’s pleading open on the B, count…

       [IMEL]:      Right, pleading open on the B [felony charge of Incest]. But
       contingent upon that the other three (3) [charges] will be dismissed.

       [COURT]: All right. So Mr. Imel will plead guilty to Amended Count III,
       Incest, B Felony, the remaining charges would be dismissed?

                                              4
       ***

       [COURT]:      All right. And there’s no other agreements other than that?

       [IMEL]:       No.

(Tr. at 4-5.)

       Thus, while the trial court acknowledged the absence of a written plea agreement, the

substance of an agreement—Imel pled guilty to one charged offense, contingent upon the

State’s dismissal of the other charged offenses—was nonetheless present. Subsequent to this,

Misty testified during the sentencing hearing concerning J.I.’s statements to her and to police

that Imel had barred the door to his bedroom on occasions during which he abused J.I., and

that Imel showed J.I. pornographic materials on his computer.

       Under these circumstances, we cannot conclude that the lack of a written plea

agreement precluded the trial court from taking into consideration testimony related to

dismissed charges in reaching a sentencing decision. We accordingly find no abuse of

discretion in the trial court’s finding of aggravating factors when it sentenced Imel.

                                      Inappropriateness

       We turn now to Imel’s second contention on appeal that, under Appellate Rule 7(B),

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

       The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

permitting appellate review and revision of criminal sentences is implemented through

Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by statute

if, after due consideration of the trial court’s decision, the Court finds that the sentence is



                                              5
inappropriate in light of the nature of the offense and the character of the offender.” Under

this rule, and as interpreted by case law, appellate courts may revise sentences after due

consideration of the trial court’s decision, if the sentence is found to be inappropriate in light

of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d

1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The

principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at

1225.

        Here, Imel was convicted of a single count of Incest, as a Class B felony. This carried

a sentencing range of six to twenty years imprisonment, with an advisory term of ten years.

I.C. § 35-50-2-5. Imel was sentenced to eighteen years imprisonment, with no time

suspended to probation.

        The nature of Imel’s offense is that, when he was around thirty years of age, Imel

sexually abused his daughter, J.I., who was seven or eight years old. As the victim’s non-

custodial father, Imel was in a position of trust as to J.I., who was on these occasions staying

with him under an agreement with Misty. During the sentencing hearing, Misty testified that

J.I. told her about incidences of Imel barring the door to his bedroom during incidents of

abuse, and about Imel showing her pornographic materials. Misty and Heither both testified

that since the abuse, J.I., who was nine years old at the time of the sentencing hearing, was no

longer playful, seemed overly serious for her age and overly concerned with the safety of

other children, changed her underpants numerous times each day, would not be alone with




                                                6
males, and would no longer sleep alone. Misty summarized the effect upon J.I. by testifying

that Imel “ruined our child’s life.” (Tr. at 34.)

       As to Imel’s character, we recognize that he pled guilty and expressed remorse; the

trial court gave some weight to this, as well as to Imel’s long-standing diagnoses of

schizophrenia, agoraphobia, bipolar disorder, and anxiety, for which he took numerous

prescription medications. Imel also indicated in the Presentencing Investigation report that

his father was abusive and was an alcoholic, though Imel also stated that at the time of his

sentencing he had a good relationship with his father. Yet Imel has a prior criminal record,

including three adjudications as a juvenile delinquent; two of these involved abuse of

marijuana or alcohol. Imel’s adult criminal record also reflects a series of convictions related

to the abuse of alcohol and marijuana, as well as an incidence where Imel violated the terms

of his probation and refused treatment for substance abuse. Imel obtained a G.E.D. in 2003,

but has been employed only once, in 2006.

       Having thus reviewed the matter, we conclude under Appellate Rule 7(B) that the trial

court did not impose an inappropriate sentence, and the sentence does not warrant appellate

revision. Accordingly, we decline to disturb the sentence imposed by the trial court.

                                         Conclusion

       The trial court did not abuse its discretion in finding aggravating factors during

sentencing. Imel’s sentence was not inappropriate.

       Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.


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