Jamie Joe Hardy v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 22 2015, 7:57 am
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
Mark K. Leeman Gregory F. Zoeller
Cass County Public Defender Attorney General of Indiana
Logansport, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamie Joe Hardy, April 22, 2015
Appellant-Defendant, Court of Appeals Case No.
09A02-1411-CR-797
v. Appeal from the Cass Superior
Court.
The Honorable Rick Maughmer,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 09D02-1208-FA-2
Sullivan, Senior Judge
[1] Jamie Joe Hardy appeals from the trial court’s sentencing order after pleading
1
guilty to one count of child molesting as a Class C felony and one count of
1
Ind. Code §35-42-4-3(b) (2007).
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2
dissemination of matter harmful to minors as a Class D felony. Hardy
challenges the trial court’s finding of certain aggravating factors, rejection of
certain proffered mitigating factors, and argues that his sentence is
inappropriate in light of the nature of the offense and the character of the
offender. We affirm.
[2] The factual basis supporting Hardy’s guilty plea established that between
August 1, 2011, and August 20, 2012, Hardy, who was born on June 14, 1978,
placed the hand of his daughter, M.L.H., who was born on July 10, 2002, on
his penis with the intent to satisfy Hardy’s own sexual desires. In addition,
between August 1, 2011, and August 20, 2012, Hardy intentionally showed his
daughter, M.L.H., pornographic photographs of nude women depicted
engaging in sexual activity.
[3] On August 22, 2012, the State charged Hardy with two counts of child
molesting, each as a Class A felony, and one count of Class C felony child
molesting. Later, on October 29, 2012, the State filed an additional charge of
child molesting as a Class A felony. Next, on September 10, 2014, the State
filed a count alleging dissemination of matter harmful to minors as a Class D
felony. After plea negotiations, Hardy entered an open guilty plea to one count
of Class C felony child molesting and one count of Class D felony
dissemination of matter harmful to minors. In exchange, the State agreed to
2
Ind. Code § 35-49-3-3 (2006).
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dismiss three counts of Class A felony child molesting. On October 20, 2014,
the trial court sentenced Hardy to eleven years executed in the Department of
Correction. Hardy now appeals.
[4] Hardy argues that the trial court abused its discretion during sentencing by
considering improper aggravating circumstances and by rejecting profferred
mitigating circumstances. Sentencing decisions rest within the sound discretion
of the trial court and are reviewed on appeal only for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). “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.(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006). When imposing a
sentence for a felony, a trial court must enter a sentencing statement including
reasonably detailed reasons for imposing a particular sentence. Id. at 490. A
trial court abuses its discretion when it: 1) fails to issue any sentencing
statement; 2) enters a sentencing statement that explains reasons for imposing a
sentence, but the record does not support the reasons; 3) enters a sentencing
statement that omits reasons clearly supported by the record and advanced for
consideration; or 4) considers reasons that are improper as a matter of law. Id.
at 490-91.
[5] First, Hardy argues that the trial court improperly found his criminal history to
be an aggravating factor, contending that his four misdemeanor convictions
were too remote in time and nature to be considered. “The chronological
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remoteness of a defendant’s prior criminal history should be taken into
account.” Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (citing Harris v. State,
272 Ind. 210, 396 N.E.2d 674, 677 (1979)). “However, ‘we will not say that
remoteness in time, to whatever degree, renders a prior conviction irrelevant.’”
Id. “The remoteness of prior criminal history does not preclude the trial court
from considering it as an aggravating circumstance.” Id.[6] Here, Hardy reported that had tried methamphetamine, cocaine, crack, and
acid. He admits that “he uses marijuana as often as possible.” Appellant’s
App. p. 169. Hardy’s misdemeanor convictions consist of Class B
misdemeanor criminal recklessness, Class C misdemeanor operating a vehicle
with a controlled substance or its metabolite in his body, Class A misdemeanor
criminal mischief, and Class B misdemeanor public intoxication. These
convictions are different from the present offenses, and the most recent of those
convictions occurred approximately thirteen years prior to the current offense.
However, those convictions along with Hardy’s admission of using illegal
drugs—marijuana as often as he can—establishes a disregard for the law
undeterred by those convictions. Therefore, while the most recent of Hardy’s
convictions for criminal conduct occurred thirteen years prior, he has continued
to engage in criminal behavior, without it resulting in a conviction. Thus, the
trial court properly found Hardy’s criminal history to be an aggravating
circumstance.
[7] To the extent Hardy is challenging the significance attributed to this particular
aggravating factor, we decline the invitation to reweigh the aggravating and
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mitigating circumstances. “The relative weight or value assignable to reasons
properly found . . . is not subject to review for abuse.” Anglemyer, 868 N.E.2d
at 491.
[8] The trial court also found as an aggravating circumstance that Hardy, as the
biological father of M.L.H., violated a position of trust with the victim. The
trial court also noted the young age of the victim, less than twelve years old, at
the time of the offenses. Hardy argues that those aggravating circumstances do
not justify the imposition of his eleven-year sentence because his crimes were
not the worst and he is not one of the worst offenders. In conjunction with that
argument, Hardy argues that the trial court abused its discretion by rejecting his
argument that the crimes were the result of circumstances unlikely to recur.
[9] “[B]eing in a position of trust with the victim is a valid aggravating
circumstance.” Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005).
“Abusing a position of trust is, by itself, a valid aggravator which supports the
maximum enhancement of a sentence for child molesting.” Id. “There is no
greater position of trust than that of a parent to his own young child.” Id.Further, M.L.H. was far younger than the age set forth as an element of the
crime in the statute.
[10] Although Hardy did consent to a no-contact order with M.L.H. as part of his
sentence, Hardy has other children, including a biological daughter younger
than M.L.H., for whom he is obligated to pay child support. Further, the no-
contact order does not deny Hardy access to children other than M.L.H. The
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trial court did not abuse its discretion by finding the aggravating circumstance
that Hardy had violated a position of trust, by noting the tender age of the
victim, or by rejecting Hardy’s contention that the crimes were the result of
circumstances unlikely to recur.
[11] Hardy also admitted to displaying pornographic materials to M.L.H., in
particular, photographs of nude women engaged in what he described as
“sexual activities.” Plea Hrg Tr. pp. 15-16. On appeal, he contends that this
offense is not the worst because the record does not establish that he showed
M.L.H. images of “violent, non-consensual, or illegal images of sexual
conduct.” Appellant’s Br. p. 11.
[12] “In Buchanan v. State, 767 N.E.2d 967, 974 (Ind. 2002), our supreme court
attempted to clarify the rule regarding the imposition of maximum sentences as
follows: ‘[a]lthough maximum sentences are ordinarily appropriate for the
worst offenders, we refer generally to the class of offenses and offenders that
warrant the maximum punishment. But such classes encompass a considerable
variety of offenses and offenders.’” Spears v. State, 811 N.E.2d 485, 491 (Ind.
Ct. App. 2004). Given the tender age of the victim, and Hardy’s violation of a
position of trust with her, we cannot say that the trial court abused its discretion
by selecting the sentence it chose.
[13] Hardy further contends that the trial court abused its discretion by failing to find
Hardy’s plea agreement as a mitigating factor in this case. The record reveals
that the trial court considered Hardy’s guilty plea and acknowledged it. When
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the trial court stated that it was considering the guilty plea neither a mitigating
nor aggravating circumstance because it represented the benefit of the bargain,
Hardy’s counsel reminded the trial court that the parties had stipulated at the
plea hearing that the trial court should not consider that three counts of child
molesting, each charged as Class A felony, were being dismissed pursuant to
the plea agreement.
[14] “Our supreme court has held, however, that trial courts should be ‘inherently
aware of the fact that a guilty plea is a mitigating circumstance.’” Banks v. State,
841 N.E.2d 654, 658 (Ind. Ct. App. 2006) (quoting Francis v. State, 817 N.E.2d
235, 237 n.2 (Ind. 2004)). trans. denied. Yet, a sentencing court is not required
to place the same value on a mitigating circumstance as does the defendant.
Beason v. State, 690 N.E.2d 277, 283-84 (Ind. 1998). A fair reading of the
sentencing statement leads us to conclude that the trial court considered
Hardy’s guilty plea, but placed less value on it than argued by Hardy. Trial
court error, if any, in failing to explicitly find Hardy’s guilty plea to be a
mitigating factor is harmless.
[15] Next, Hardy argues that his sentence is inappropriate in light of the nature of
the offense and the character of the offender. Although a trial court may have
acted within its lawful discretion in imposing a sentence, article 7, sections 4
and 6 of the Indiana Constitution authorize independent appellate review and
revision of sentences through Indiana Appellate Rule 7(B), which provides that
a 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 inappropriate in
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light of the nature of the offense and the character of the offender.” Reid v.
State, 876 N.E.2d 1114, 1116 (Ind. 2007) (quoting Anglemyer, 868 N.E.2d at
491). The defendant has the burden of persuading us that the sentence is
inappropriate. Id. “We may look to any factors appearing in the record to
conduct the examination.” Schumann v. State, 900 N.E.2d 495, 497 (Ind. Ct.
App. 2009).
[16] For our purposes of review under Appellate Rule 7(B), we will first look to the
advisory sentence to guide us in determining whether the sentence imposed is
inappropriate given the nature of the offense and the character of the offender.
The sentencing range for a Class C felony is a fixed term of between two years
and eight years with the advisory sentence being four years. Ind. Code §35-50-
2-6 (2005). The sentencing range for a Class D felony is a fixed term of
between six months and three years with the advisory sentencing being one and
one-half years. Ind. Code § 35-50-2-7 (2005). Here, Hardy received the
maximum sentence for each conviction with the sentences to be served
consecutively.
[17] Regarding the nature of the offense, Hardy showed pornographic photographs
to his own ten-year-old daughter and made her place her hand on his penis. As
for the character of the offender, Hardy has demonstrated that he has a
disregard for the law, resulting in four misdemeanor convictions, and including
the use of illegal drugs. He admits to using marijuana as often as possible.
Further, he prioritized his own need for gratification over the well-being of his
own daughter. Hardy has not met his burden of persuading us that his sentence
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is inappropriate in light of the nature of the offense or the character of the
offender.
[18] In light of the above, we affirm the trial court’s decision.
[19] Affirmed.
Kirsch, J., and Bradford, J., concur.
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