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                        FILED
                                                        Aug 14 2012, 9:20 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.                                                           CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JILL M. DENMAN                                   GREGORY F. ZOELLER
Matheny Hahn Denman & Nix, L.L.P.                Attorney General of Indiana
Huntington, Indiana
                                                 ANDREW R. FALK
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BILLY D. TAYLOR,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 85A02-1112-CR-1195
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE WABASH CIRCUIT COURT
                         The Honorable Robert R. McCallen, Judge
                             Cause No. 85C01-1104-FD-293


                                      August 14, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge


                              STATEMENT OF THE CASE

       Billy D. Taylor, Jr. appeals the sentence imposed after he pled guilty to failure to

comply with conditions related to his status as a sex offender.

       We affirm.

                                          ISSUE

       Whether the two-year sentence imposed by the trial court is inappropriate.

                                          FACTS

       In 2009, Taylor was convicted of sexual misconduct with a minor, a class C

felony. As part of his sentence, Taylor was ordered to register as a sex offender, and he

did so in August of 2010. At the time he registered, Taylor was given a “Sex or Violent

Offender Registration Form” that listed the requirements for all sex or violent offenders.

One of the requirements stated that that “[i]f you change your principal address . . . you

must report IN-PERSON to each Sheriff’s Department having jurisdiction over [the

address] within 3 days of arriving in that county or counties.” (App. 82).

       On October 21, 2010, Taylor reported a change of address to the Sheriff’s

Department and informed the department that his new address was 273 Falls Avenue,

Wabash, Indiana. On April 2, 2011, two law enforcement officers attempted to serve an

arrest warrant on Taylor at the listed addressed. The officers were informed that Taylor



                                             2
had not lived at the address since February of 2011. Taylor was eventually located at his

Mother’s house.

           The State charged Taylor with failing to register as a sex offender, a class D

felony.1 (App. 32). The State also “charged” Taylor with failing “to reside at the sex

offender’s registered address or location.”2 Id. Taylor pled guilty, and a sentencing

hearing was held.

           At the sentencing hearing, Taylor’s counsel stated that Taylor had lost his job, was

evicted from his reported address, and had to move in with his mother. Taylor’s counsel

further stated that Taylor left a voicemail with the Sheriff’s Department to report his

change of address.

           The State requested a two-year sentence due to Taylor’s criminal record, while

Taylor requested the trial court impose a one and a half year sentence with nine months

suspended. The trial court found that Taylor’s guilty plea and his prospects for future

employment were mitigating factors. The trial court noted Taylor’s criminal record as an

aggravator, but it was most concerned by Taylor’s previous failures to comply with terms

of probation. The trial court imposed a two-year sentence to be served consecutive to a

sentence in Miami County.



1
    Ind. Code § 11-8-8-17(a).
2
    It appears that this “charge” merely reiterates the condition stated in I.C. § 11-8-8-11


                                                              3
                                        DECISION

       Taylor contends that the two-year sentence is inappropriate. He argues that he is

“not the worst type of offender and [does] not deserve to have a non-suspended enhanced

sentence of two (2) years.” Taylor’s Br. at 6. He also argues that the facts illustrate that

there was nothing particularly egregious about his offense, as he did take action to inform

the Sheriff’s Department of his new address. Taylor notes the mitigating circumstances

cited by the trial court, and he contends that his criminal record—consisting of three

misdemeanors and the class C felony sexual misconduct with a minor—is “relatively

minor.” Id.

       The revision of a sentence is authorized by the Indiana Constitution through

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, the Court finds that the

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

offender.” In determining the appropriateness of a sentence, a court of review may

consider any factors appearing in the record. Schumann v. State, 900 N.E.2d 495, 497

(Ind. Ct. App. 2009). The “nature of the offense” portion of the appropriateness review

begins with the advisory sentence. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),

clarified on reh’g by Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007); Richardson v.

State, 906 N.E.2d 241, 247 (Ind. Ct. App. 2009). The “character of the offender” portion

of the sentence review refers to general sentencing considerations and the relevant

                                              4
aggravating and mitigating circumstances. Major v. State, 873 N.E.2d 1120, 1130 (Ind.

Ct. App. 2007), trans. denied. A defendant bears the burden of persuading us that his

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

Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).

       Indiana Code section 11-8-8-17(a) provides that a sex offender commits a class D

felony when he knowingly or intentionally does not reside at his registered address.

Indiana Code section 11-8-8-11 requires that a sex offender who changes his principal

residence to report in person “to the local law enforcement authority having jurisdiction

over the sex offenders . . . current principal address.” Indiana Code section 35-50-2-7

provides that a person who commits a class D felony “shall be imprisoned for a fixed

term of between six (6) months and three (3) years, with the advisory sentence being one

and one-half (1 ½) years.” Here, Taylor admitted that he did not live at the registered

address and failed to make an in-person report of his change of address. However, he did

inform the Sheriff’s Department by telephone of his change of address. The trial court

made no finding that would support enhancement based solely upon the nature of the

offense.

       With regard to the character of the offender, the trial court found that Taylor had

failed in other cases to abide by the conditions of probation. Indeed, the record reveals

that (1) Taylor’s current offense is a violation of a condition of his current probation; (2)

he violated probation on at least two other occasions; and (3) four petitions to revoke

                                             5
probation have been filed against Taylor in total. (App. 63). Apparently, the trial court

concluded that despite the guilty plea and Taylor’s chances of obtaining immediate

employment, a six-month enhancement was necessary to assist Taylor in learning the

importance of complying with the conditions imposed upon his post-imprisonment

activities. Furthermore, even though Taylor claimed that he achieved a “GED with

honors,” there is a notable lack of documentary evidence in the record by Taylor to

support his claim. In fact, a counselor from Taylor’s high school stated to the probation

officer who prepared the Presentence Investigation Report that there is no record that he

completed high school or a GED program.

      It is not within our discretion to determine whether another sentence is more

appropriate but rather “whether the sentence imposed is inappropriate.” See King v.

State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Given Taylor’s prior failures to comply

with post-imprisonment conditions, we cannot say that the trial court’s six-month

enhancement renders Taylor’s sentence inappropriate.

      Affirmed.

NAJAM, J., concurs.

RILEY, J., dissents with separate opinion.




                                             6
                             IN THE
                   COURT OF APPEALS OF INDIANA

BILLY D. TAYLOR, JR.,                           )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )     No. 85A02-1112-CR-1195
                                                )
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )



RILEY, Judge, dissenting


      I respectfully dissent from the majority’s decision to affirm the trial court’s

imposition of Taylor’s two-year sentence. As noted, pursuant to Indiana Appellate Rule

7(B), we may revise a sentence authorized by statute if, after due consideration of the

trial court’s decision, the court finds that the sentence is inappropriate in light of the
                                            7
nature of the offense and the character of the offender. Under the circumstances before

me, I conclude that Taylor’s sentence is inappropriate.

       Taylor’s offense is failing to register as a sex offender, a Class D felony. While

Taylor does not proclaim his innocence in this regard, he also did not intentionally hide

from the police. After losing his job, being evicted from his home, becoming depressed,

and moving into his mother’s residence, he tried to comply with the registration

requirement by calling the sheriff’s department and leaving a voice mail with his changed

address. By pleading guilty to the charge, he did not waste judicial resources.


       Taylor’s criminal history is minimal. Besides the Class D felony sexual battery,

which provided the basis for the registration requirement, he has been convicted of three

misdemeanors, unrelated in nature to the present conviction. While he was incarcerated

for the Class D felony, he earned his GED with honors and received a shining star

certificate. He has been sober for three years and has turned his life around, with a

prospective employment at Metal Source to support his family.          In light of all the

progress Taylor has made in the previous years, incarceration for an offense—which was

clearly not intentionally committed—would serve no purpose. I would reduce Taylor’s

sentence to one and one-half years with nine months suspended.




                                             8
