                                                                              FILED
                                                                          Jul 17 2020, 8:43 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Nicole A. Zelin                                             Curtis T. Hill, Jr.
      Pritzke & Davis, LLP                                        Attorney General of Indiana
      Greenfield, Indiana
                                                                  Sarah Shores
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
             COURT OF APPEALS OF INDIANA

      Nicholas D. McHenry,                                        July 17, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-2460
                 v.                                               Appeal from the Hancock Circuit
                                                                  Court
      State of Indiana,                                           The Honorable R. Scott Sirk,
      Appellee-Plaintiff                                          Judge
                                                                  Trial Court Cause No.
                                                                  30C01-1902-F1-299



      May, Judge.

[1]   Nicholas D. McHenry appeals his aggregate twenty-four-year sentence for two

      counts of Level 4 felony child molesting. 1 We address two issues: (1) whether




      1
          Ind. Code § 35-42-4-3(b).


      Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020                           Page 1 of 12
      McHenry waived his right to appeal as a condition of his plea agreement; and

      (2) whether McHenry’s sentence is inappropriate given the nature of his offense

      and his character. We affirm.



                             Facts and Procedural History
[2]   N.W. and her younger sister, N.S., spent a lot of time at McHenry’s house

      because N.W. was friends with McHenry’s younger sister, G.M. The mother of

      N.W. and N.S. paid McHenry’s mother to babysit N.W. and N.S., and

      McHenry would help his mother care for them. On February 6, 2019, the

      mother of N.W. and N.S. contacted the Fortville Police Department to report

      that McHenry, a twenty-one-year old man, had touched N.W.’s thigh and

      asked N.W. to unbutton her pants. The officer who took the report contacted

      the Indiana Department of Child Services (“DCS”). A DCS caseworker then

      interviewed N.W. and N.S. at the Hancock County Sheriff’s Department. In

      their interviews with the caseworker, both N.S. and N.W. reported McHenry

      inappropriately touched them.


[3]   N.S. described an incident that occurred on February 1, 2019, when N.S. was

      six years old. N.S. was in McHenry’s bedroom when McHenry blocked his

      bedroom door and would not allow her to leave the room. McHenry asked

      N.S. to sit on his lap. McHenry touched N.S.’s “pee area” over her clothes at

      first, then McHenry pulled N.S.’s pants down and touched her “pee area”

      again. (App. Vol. II at 25.) McHenry said “ooo that’s good” while touching

      N.S. (Id.)

      Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020     Page 2 of 12
[4]   The caseworker also interviewed N.W., who described an incident that

      occurred in April 2018, while she attended a sleepover at McHenry’s house to

      celebrate G.M.’s birthday. N.W. was eleven years old at the time. N.W.

      reported that she was sleeping on a chair in the living room when she woke up

      to McHenry rubbing her vagina. Once N.W. woke up, McHenry told her

      “shhh and go back to bed.” (Id.)


[5]   After DCS’s interviews with N.W. and N.S., Fortville Police Officers

      interrogated McHenry. McHenry admitted touching N.S.’s vagina, both over

      her clothes and then skin to skin, in his bedroom. He also said that he put his

      thumb inside N.S.’s anus. McHenry further admitted rubbing N.W.’s vagina

      with his hand when N.W. was at the McHenry’s house for G.M.’s birthday

      sleepover. McHenry then reported that he had also recently reached under

      G.M.’s nightgown and “copped a feel” of G.M.’s buttocks. (Id.)


[6]   On February 13, 2019, the State charged McHenry with one count of Level 1

      felony child molesting 2 and two counts of Level 4 felony child molesting. On

      July 17, 2019, McHenry entered into a plea agreement with the State in which

      he agreed to plead guilty to the two counts of Level 4 felony child molesting

      and the State agreed to dismiss the Level 1 felony child molesting count. The

      plea agreement listed the maximum and minimum penalties allowed by statute

      for a Level 4 felony, but it left the sentence on each count and the aggregate




      2
          Ind. Code § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020        Page 3 of 12
      sentence to the discretion of the trial court. Paragraph 15 of the plea agreement

      stated:


              The Defendant understands that he has a right to appeal his
              sentence if there is an open plea. An open plea is an agreement
              which leaves the sentence entirely to the Judge’s discretion,
              without any limitation or the dismissal of any charges. The
              Defendant’s plea is not an open plea, and the Defendant hereby
              waives his right to appeal his sentence so long as the Judge
              sentences the Defendant within the terms of the plea agreement.
              The defendant hereby waives the right to appeal any sentence
              imposed by the Court, under any standard of review, including
              but not limited to, an abuse of discretion standard and the
              appropriateness of the sentence under Indiana Appellate Rule
              7(B), so long as the Court sentences the defendant within the
              terms of the plea agreement.


      (App. Vol. II at 49-50.)


[7]   The trial court held a change of plea hearing on July 23, 2019. At the hearing,

      the trial court advised McHenry that, by entering into the plea agreement,

      McHenry waived certain rights including his right to a public and speedy trial,

      his right to confront the witnesses against him, his right not to be called to

      testify against himself, and the presumption of innocence. The trial court also

      advised McHenry of the maximum and minimum penalties for the crimes

      McHenry intended to plead guilty to committing. McHenry then moved to

      change his plea, and he pled guilty to the two counts of Level 4 felony child

      molestation. McHenry also waived his right to be sentenced within thirty days

      of entering his guilty plea.


      Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020          Page 4 of 12
[8]   The trial court held a sentencing hearing on September 26, 2019. The victims’

      mother testified that, after the molestations, N.W. became depressed and her

      grades dropped dramatically, and N.S. threatened to commit suicide. Both

      N.W. and N.S. began attending therapy. McHenry’s juvenile probation officer,

      McHenry’s mother, and McHenry also testified at the hearing. During the

      State’s argument, the State commented McHenry “essentially pled open,” and

      the State declined to make a specific sentencing recommendation. (Tr. Vol. II

      at 73.) The trial court sentenced McHenry to consecutive twelve-year terms, for

      an aggregate sentence of twenty-four years. The hearing concluded with the

      following exchange between the court and counsel:


              THE COURT: Okay. Anything else? [Defense Counsel] may
              appeal the sentence –


              [Defense Counsel]: No Judge.


              THE COURT: - within thirty days if he wishes to do so. All
              right thank you all very much. Anything else Ms. [Deputy
              Prosecutor]?


              [Deputy Prosecutor]: Not at this time Your Honor.


      (Id. at 87.)


[9]   On October 9, 2019, the trial court entered a sentencing statement in which it

      stated:


              2. The reason for Defendant’s said sentence is that the harm,
              injury, loss, damage suffered by both victims of this offense of
      Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020          Page 5 of 12
               child molest was significant and greater than necessary of the
               elements [sic] to prove the commission of said offense.


               3. The defendant had a history of criminal delinquent behavior
               including a previous juvenile conviction of the same offense of
               child molest and including the uncharged child molest.


               4. Additionally, the defendant was placed in a situation where
               the victims were at his home for purposes of child care and the
               defendant was in a position where he had a greater responsible
               [sic] to said children.


               5. Finally, as stated previously[,] the victims themselves and the
               nature of their loss is such and the harm that was inflicted [on]
               them is such it demands a penalty reflecting the aggravating
               circumstances and justified the Court’s sentence of twelve years
               on each Count and consecutive.


               6. The Court finds the only mitigating circumstance is that he
               admitted his guilt.


       (App. Vol. III at 80.)



                                   Discussion and Decision
                                                    I. Waiver
[10]   The State contends McHenry waived his ability to challenge his sentence

       pursuant to paragraph 15 of McHenry’s plea agreement. While the plea

       agreement stated a defendant has a right to appeal his sentence following an

       open plea, the State argues McHenry did not enter an open plea. The State


       Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020            Page 6 of 12
       dismissed the Level 1 felony count, and the plea agreement defined “open plea”

       as “an agreement which leaves the sentence entirely to the Judge’s discretion,

       without any limitation or the dismissal of any charges.” (App. Vol. II at 49.)


[11]   However, the State’s argument in the case at bar is the same argument that we

       considered and rejected in Williams v. State, 51 N.E.3d 1205 (Ind. Ct. App.

       2016). 3 In Williams, the defendant agreed to plead guilty to theft after

       embezzling money from her employer, and the State agreed to dismiss its

       allegation that Williams was a habitual offender. Id. at 1207. After a

       sentencing hearing in which the parties argued over the amount of executed

       time Williams should be sentenced to serve, the court sentenced her to a fully

       executed term of three years in the Indiana Department of Correction. Id. at

       1208. Williams’ plea agreement contained a provision substantially similar to

       paragraph 15 of McHenry’s plea agreement, and the State argued on appeal

       that “because Williams agreed that her plea was not an open plea, she is

       foreclosed from challenging her sentence on direct appeal.” Id. at 1209. We

       stated:


                  “An ‘open’ plea is one in which the sentence imposed is left to
                  the discretion of the court.” Allen v. State, 865 N.E.2d 686, 689
                  (Ind. [Ct.] App. 2007). Where “a defendant pleads guilty to what
                  has been characterized as an ‘open plea’ the freedom and latitude
                  of the trial court to impose a particular sentence is readily




       3
           The State did not petition for either rehearing or transfer following our decision in Williams.


       Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020                                     Page 7 of 12
               apparent.” Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006)
               (footnote omitted).


       Id. In conclusion, we stated:


               We construe contracts against the drafting party, which, in the
               case of plea agreements, is the State. As such, we conclude that
               this was in fact an open plea, that the parties mistakenly
               characterized as not being so. Nevertheless, per the terms of the
               plea agreement, Williams was allowed the opportunity to appeal
               her sentence from the open plea and may do so here on direct
               appeal. This conclusion comports with the trial court’s
               sentencing statement on the record after imposing sentence. . . .
               At that point the State did not object to the trial court’s
               comments or correct the record pursuant to the plea agreement.
               We decline to dismiss Williams’ appeal.


       Id. at 1209-10 (internal citations and quotation marks omitted).


[12]   Like the plea agreement in Williams, McHenry’s plea agreement notified him

       that a defendant has a right to appeal the sentence imposed after entering an

       open plea and erroneously characterized McHenry’s plea as not an open plea.

       The plea agreement left McHenry’s sentence to the trial court’s discretion, and

       the trial court was only limited in the sentence it could impose by the statute

       outlining the maximum and minimum penalties for a Level 4 felony. Further,

       like the trial court in Williams, the trial court herein advised McHenry of his

       right to appeal at the end of McHenry’s sentencing hearing, and the State did

       not object. Therefore, we reach the same result that we reached in Williams,

       and we decline to dismiss McHenry’s appeal.



       Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020          Page 8 of 12
                                 II. Appropriateness of Sentence
[13]   McHenry argues his aggregate twenty-four-year sentence is inappropriate given

       the nature of his offense and his character. We evaluate inappropriate sentence

       claims using a well-settled standard of review.


               We “may revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, [we find] the sentence
               is inappropriate in light of the nature of the offense and the
               character of the offender.” Ind. App. R. 7(B). Our role in
               reviewing a sentence pursuant to Appellate Rule 7(B) “should be
               to attempt to leaven the outliers, and identify some guiding
               principles for the trial courts and those charged with
               improvement of the sentencing statutes, but not to achieve a
               perceived ‘correct’ result in each case.” Cardwell v. State, 895
               N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden
               of persuading this court that his or her sentence is inappropriate.”
               Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015).
               “Whether a sentence is inappropriate ultimately turns on the
               culpability of the defendant, the severity of the crime, the damage
               done to others, and a myriad of other factors that come to light in
               a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.
               App. 2014).


       Belcher v. State, 138 N.E.3d 318, 328 (Ind. Ct. App. 2019), trans. denied.


[14]   When considering the nature of the offense, we first look to the advisory

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

       clarified on reh’g 875 N.E.2d 218 (Ind. 2007). Indiana Code section 35-50-2-5.5

       states: “A person who commits a Level 4 felony shall be imprisoned for a fixed

       term of between two (2) and twelve (12) years, with the advisory sentence being

       six (6) years.” Thus, the court imposed a sentence on each count above the

       Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020            Page 9 of 12
       advisory sentence. In fact, the court imposed the maximum sentence statutorily

       allowed.


[15]   McHenry argues the facts of his offense “are not ‘egregious’ and certainly do

       not consist of anything more than the ‘typical’ offense that the Indiana

       legislature contemplated when it set the advisory sentence.” (Appellant’s Br. at

       11.) We disagree. As the trial court noted in its sentencing statement, N.W.

       and N.S. were at McHenry’s house for the purpose of childcare, and McHenry

       exploited that purpose in order to commit his offenses. The nature of

       McHenry’s offense was therefore more egregious then the “typical” offense

       because he was in a position of trust. Also, McHenry’s offenses caused the

       victims to suffer significant harm. The victims’ mother testified at McHenry’s

       sentencing hearing regarding the many ways his offenses negatively affected her

       daughters. See Hale v. State, 128 N.E.3d 456, 465 (Ind. Ct. App. 2019) (holding

       child molester’s sentence was not inappropriate in light of the nature of his

       offense when he exploited his position as fiancé of the victim’s mother’s to

       commit his crimes and the victim testified regarding the number of ways the

       molestations negatively impacted her life), trans. denied.


[16]   When assessing the defendant’s character, we consider the defendant’s criminal

       history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). “The

       significance of criminal history varies based on the gravity, nature, and number

       of prior offenses in relation to the current offense.” Id. When McHenry was

       fourteen, the juvenile court adjudicated him delinquent after he sexually

       assaulted two young boys while his mother was babysitting them. Further, the
       Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020       Page 10 of 12
       juvenile court determined McHenry violated the terms of his probation when he

       performed oral sex on his sister. Additionally, McHenry self-reported to

       officers that he reached under his sister’s nightgown and touched her buttocks,

       even though the State did not charge him with a crime for doing so. McHenry’s

       record of continuing to engage in criminal sexual behavior, even after contacts

       with the justice system, reflects poorly on his character. See Weiss v. State, 848

       N.E.2d 1070, 1073 (Ind. 2006) (holding defendant’s sentence was not

       inappropriate because “[h]is repeated contacts with the criminal justice system

       have had no impact on persuading him to reform”).


[17]   McHenry partially attributes his offense to the sexual abuse he suffered as a

       child. However, despite knowing from personal experience the harm sexual

       abuse causes, McHenry chose to sexually molest others. This also does not

       reflect well on his character. See Hines v. State, 856 N.E.2d 1275, 1283 (Ind. Ct.

       App. 2006) (“Even accepting that Hines was a victim of abuse as a child, the

       trial court failed to assign this fact much weight because Hines chose to create

       more victims by becoming an abuser himself.”). Therefore, McHenry’s

       character does not persuade us that his sentence is inappropriate. See Walters v.

       State, 68 N.E.3d 1097, 1103 (Ind. Ct. App. 2017) (holding convicted child

       molester’s character did not demonstrate his sentence was inappropriate), trans.

       denied.



                                                 Conclusion


       Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020         Page 11 of 12
[18]   We decline the State’s request to dismiss McHenry’s appeal because his plea

       agreement allowed him to appeal his sentence following an open plea and the

       plea agreement left sentencing entirely to the trial court’s discretion. Further,

       we hold that McHenry’s sentence is not inappropriate given the nature of his

       offense and his character, particularly in light of McHenry’s continuing acts of

       criminal sexual behavior. Therefore, we affirm.


[19]   Affirmed.


       Robb, J. and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2460 | July 17. 2020        Page 12 of 12
