Richard L. Barwick, Jr. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 08 2018, 7:53 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Laura Sorge Fattouch Curtis T. Hill, Jr.
Sorge Law Firm Attorney General of Indiana
Lawrenceburg, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard L. Barwick, Jr., November 8, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-114
v. Appeal from the
Decatur Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Matthew D. Bailey, Judge
Trial Court Cause No.
16D01-1703-F3-514
Kirsch, Judge.
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[1] Richard L. Barwick, Jr. (“Barwick”) pleaded guilty to vicarious sexual
gratification1 as a Level 3 felony and was sentenced to seven years with four
years executed and three years suspended to probation. Barwick appeals his
sentence and raises the following restated issues for our review:
I. Whether the trial court abused its discretion when it found
the impact on the victim as an aggravating circumstance;
and
II. Whether Barwick’s sentence is inappropriate in light of the
nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On May 25, 2017, the State charged Barwick with Level 3 felony vicarious
sexual gratification. On September 29, 2017, Barwick filed a notice of insanity
and a motion to determine competency to stand trial. The trial court ordered
evaluations from Dr. George Parker, M.D. (“Dr. Parker”) and Dr. Don Olive,
Psy.D. (“Dr. Olive”). Barwick was evaluated by Dr. Parker and Dr. Olive and
found to be competent by both doctors. On November 22, 2017, Barwick
pleaded guilty to knowingly or intentionally directing, aiding, inducing, or
causing J.C., who was twelve to thirteen years old at the time, to engage in
1
See Ind. Code § 35-42-4-5(b)(3).
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sexual conduct by providing him a sex toy to use to penetrate J.C.’s anus.2
Appellant’s App. Vol. 2 at 7, 50-53, 54. In exchange for his guilty plea, the State
agreed to a sentence cap of four years of executed time in the Indiana
Department of Correction (“the DOC”).
[4] At sentencing, J.C.’s mother (“Mother”) testified that Barwick and his wife,
Danielle, were neighbors and friends to Mother and her children. Tr. at 7.
They prayed together, shared meals, and socialized with Barwick and Danielle.
Id. Mother trusted Barwick and Danielle and considered them as family. Id. at
9. J.C. loved them and also “looked up to them like family.” Id. J.C. and his
older brother would often go to Barwick’s house to play video games or watch
movies with Barwick and Danielle, and Barwick would care for J.C. when
needed. Id. at 7-8, 25. When J.C. was at Barwick’s apartment, Barwick
allowed him to drink alcohol and smoke cigarettes. Id. at 25.
[5] The events that led Barwick to be charged with Level 3 felony vicarious sexual
gratification occurred in October 2016. Before that, J.C. had been happy and
well adjusted. Id. at 8. He would always play outside with other children in the
apartment complex and had earned good grades at school. Id. In April or May
2017, J.C. revealed Barwick’s conduct to Mother. Id. at 9. Just before J.C. told
2
We note that Barwick failed to include the transcript of his guilty plea hearing, the probable cause affidavit, or
any other source of information from which we could glean the facts of the offense in the record on appeal.
Therefore, we use the language of the charging information to set forth the facts of the offense.
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Mother about Barwick’s actions, Mother observed that J.C. had become very
angry and was having a lot of discipline problems at school, which led to J.C.
being expelled from school. Id. Before J.C.’s disclosure to Mother, she would
try to talk with him about what was bothering him, and he would say he was
okay. Id. J.C. testified that, after the abuse by Barwick, he felt let down and
taken advantage of by Barwick and that he was having bad dreams about the
abuse. Id. at 10, 15. J.C. was in eighth grade at the time of sentencing and had
sought counseling as a result of the abuse. Id. at 16.
[6] Barwick testified at the sentencing hearing, and when he was asked if he would
like to apologize to the family for how he hurt them, he said, “A little bit -- if
they would accept my apology,” and he later stated, “I would like to direct my
sincere apology for anything that I’ve caused you all personally.” Id. at 17, 24.
Barwick testified that he had memories of being abused but did not have a
specific recollection of what occurred. Id. at 19. Barwick also stated that he
had hallucinations. Id. at 19.
[7] The trial court found that Barwick’s guilty plea was a mitigating circumstance,
but that he received a benefit through the cap on executed time in the plea
agreement. Id. at 30. The trial court also found Barwick’s lack of a prior
criminal history and genuine remorse as mitigating factors. Id. The trial court
took note of the psychological evaluations by Dr. Parker and Dr. Olive and the
unsubstantiated childhood trauma suspected by the doctors, finding “some
mitigation there,” but expressly found that it was not a weighty mitigating
factor. Id. at 30-31.
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[8] The trial court found as an aggravating circumstance that Barwick was in a
position of care, trust, and control of J.C. Id. at 31. The trial court also
considered as an aggravating factor the “impact on the child,” demonstrated by
“[t]he testimony about what [J.C.’s] gone through, the way he’s felt,
culminating in an expulsion from . . . school.” Id. After accepting Barwick’s
guilty plea for Level 3 felony vicarious sexual gratification, the trial court
imposed a sentence of seven years, ordering four years executed and three years
suspended to probation. Id. at 32. Barwick now appeals.
Discussion and Decision
I. Abuse of Discretion
[9] Sentencing decisions lie within the sound discretion of the trial court. Forshee v.
State, 56 N.E.3d 1182, 1185 (Ind. Ct. App. 2016). “After a court has
pronounced a sentence for a felony conviction, the court shall issue a statement
of the court’s reasons for selecting the sentence that it imposes unless the court
imposes the advisory sentence for the felony.” Ind. Code § 35-38-1-1.3. “So
long as the sentence is within the statutory range, it is subject to review only for
an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on other grounds 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)). On appeal, a trial court may be found to have abused its
discretion by not entering a sentencing statement at all; entering a sentencing
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statement that explains its reasons for imposing a sentence where such reasons
are not supported by the record or are improper as a matter of law; or entering a
sentencing statement that omits reasons that are clearly supported by the record
and advanced for consideration. Id. at 490-91. Under those circumstances,
remand for resentencing may be the appropriate remedy 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. A single
aggravating factor may support an enhanced sentence. Baumholser v. State, 62
N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied.
[10] Barwick argues that the trial court abused its discretion when it found the
impact on the child as an aggravating circumstance. He contends that the
emotional and psychological effects of a crime are inappropriate aggravating
factors unless the harm is greater than usually associated with the crime.
Barwick asserts that there was no evidence presented that the emotional and
psychological effects of the present crime “were greater than that on any other
victim of the same crime.” Appellant’s Br. at 7. Therefore, Barwick maintains
that it was an abuse of discretion to find the impact on the victim as an
aggravating factor and urges this court to remand to the trial court for a new
sentencing hearing.
[11] Initially, we note that the trial court imposed a seven-year sentence with four
years executed in the DOC and three years suspended to probation. The
sentencing range for a Level 3 felony is between three and sixteen years with
the advisory sentence being nine years. Ind. Code § 35-50-2-5(b). Therefore,
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the sentence imposed by the trial court was less than the nine-year advisory
sentence for a Level 3 felony. As such, the trial court did not impose an
enhanced sentence.
[12] Additionally, we need not consider whether the trial court erred in finding the
impact on the victim to be aggravating because the trial court found that
Barwick was in a position of care, trust, and control of J.C. as an aggravating
factor, which Barwick does not challenge on appeal. The record demonstrates
that Mother entrusted Barwick with the care of J.C. and considered Barwick as
family and that Barwick violated this trust and close relationship when he
allowed J.C. to drink alcohol and smoke cigarettes and abused him. In light of
these facts, we can say with confidence that the trial court would have imposed
the same sentence – seven years with four years executed and three years
suspended to probation -- had the trial court properly considered only reasons
that are supported by the record. See Anglemyer, 868 N.E.2d at 491. The trial
court did not abuse its discretion in sentencing Barwick.
II. Inappropriate Sentence
[13] Barwick argues that his seven-year sentence with four years executed is
inappropriate in light of the nature of the offense and the character of the
offender. Pursuant to Indiana Appellate Rule 7(B), this court “may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the [c]ourt finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Our Supreme Court
has explained that the principal role of appellate review should be to attempt to
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leaven the outliers, “not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently
examine the nature of Barwick’s offense and his character under Appellate Rule
7(B) with substantial deference to the trial court’s sentence. Satterfield v. State,
33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review, we do not look to
see whether the defendant’s sentence is appropriate or if another sentence might
be more appropriate; rather, the test is whether the sentence is ‘inappropriate.’”
Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013) (emphasis in original),
trans. denied. Whether a sentence is inappropriate ultimately depends upon “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.”
Cardwell, 895 N.E.2d at 1224. Barwick bears the burden of persuading us that
his sentence is inappropriate. Id.
[14] Initially, we note that Barwick has failed to provide this court with any record
on appeal regarding the facts or circumstances of his offense. We have not been
provided with the transcript of his guilty plea hearing, the probable cause
affidavit, or any other source from which to determine the nature of the offense
of which Barwick was convicted. Under Indiana Appellate Rule 46, which
governs the requirements of an appellant’s brief: “The argument must contain
the contentions of the appellant on the issues presented, supported by cogent
reasoning. Each contention must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”
Ind. App. Rule 46(A)(8)(a). An appellant who “fails to support his arguments
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with appropriate citations to legal authority and record evidence waives those
arguments for our review.” Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).
“[W]henever possible, “‘we prefer to resolve cases on the merits’ instead of on
procedural grounds like waiver.” Id. (quoting Roberts v. Cmty. Hospitals of Ind.,
Inc., 897 N.E.2d 458, 469 (Ind. 2008)). However, we will find waiver when the
circumstances show “‘noncompliance with the rule sufficiently substantial to
impede our consideration of the issue raised.’” Pierce, 29 N.E.3d at 1267
(quoting Guardiola v. State, 268 Ind. 404, 406, 375 N.E.2d 1105, 1107 (Ind.
1978)). In the present case, there is nothing in the record that allows this court
to conduct a meaningful review of the nature of this offense. After a review of
the record, we are unable to sufficiently glean the facts and circumstances that
form the nature of the offense. Barwick has, therefore, waived any argument
that his sentence is inappropriate due to the nature of the offense.
[15] Waiver of the nature of the offense prong notwithstanding, we proceed with
considering whether Barwick’s sentence is inappropriate in light of his
character. See Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)
(observing that appellate court must consider both elements of 7(B) analysis
when determining whether sentence is inappropriate even if defendant
essentially concedes that sentence imposed would be warranted if court only
considered one prong). Here, Barwick asserts that, in considering his character,
his mental health and probable history of childhood trauma and acceptance of
responsibility demonstrate that his sentence is inappropriate. We disagree.
Although Barwick’s assertions were supported by the evidence presented at
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sentencing, we note that, in committing the crime to which he pleaded guilty,
he abused a position of trust and care in that Mother had entrusted Barwick to
watch J.C. and thought of Barwick as family. In committing the offense of
Level 3 felony vicarious sexual gratification against J.C., Barwick betrayed that
trust, which reflects poorly on his character. Additionally, the sentence that the
trial court imposed was less than the advisory sentence for a Level 3 felony.
We conclude that Barwick’s sentence of seven years with four years executed in
the DOC is not inappropriate.
[16] Affirmed.
Vaidik, C.J., and Riley, J., concur.
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