Chad Stewart v. State of Indiana ( 2012 )

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:
BRUCE W. GRAHAM GREGORY F. ZOELLER
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
FILED
Jun 13 2012, 9:14 am
IN THE CLERK
of the supreme court,
court of appeals and
COURT OF APPEALS OF INDIANA tax court
CHAD STEWART, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1110-CR-972
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald L. Daniel, Judge
Cause No. 79C01-1008-FB-10
June 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Chad Stewart appeals the sentence imposed by the trial court following his guilty plea
to two counts of class B felony child molesting. The trial court sentenced Stewart to twelve
years on each count, to be served concurrently, with one year suspended to probation, for a
total executed sentence of eleven years. Stewart claims that his sentence is inappropriate and
asks this Court to revise and reduce his sentence. Concluding that Stewart has not met his
burden to show that his sentence is inappropriate, we decline his invitation for sentence
revision and affirm.
Facts and Procedural History
In 1999, then-seventeen-year-old Stewart was neighbors with six-year-old A.D. and
eight-year-old S.D. Stewart would sometimes babysit A.D. and S.D. and/or take A.D. and
S.D. into the woods near their house. Between the months of May and December 1999, on
more than one occasion, Stewart engaged in deviate sexual conduct with A.D. and S.D. This
deviate sexual conduct involved the sex organ of one person and the mouth of another
person. Stewart threatened to tie the young children to the railroad tracks that ran in front of
their home if they were to tell anyone about these molestations. Consequently, the children
did not report the molestations to an adult until a few months after the events occurred.
Although Child Protective Services was contacted at the time, for unknown reasons, the case
was either not investigated or was dismissed. Many years later, sixteen-year-old A.D. and
eighteen-year-old S.D. reported Stewart‟s conduct to law enforcement.
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On August 26, 2010, the State charged Stewart with eight counts of class B felony
child molesting.1 Stewart moved to dismiss the charges on June 2, 2011, alleging that the
offenses were time-barred. The trial court granted the motion to dismiss on July 28, 2011.
Then, on August 1, 2011, the State filed a motion to correct error arguing, among other
things, that the legislature has provided an extended statute of limitations for certain class B
felony sex offenses.2 The trial court granted the State‟s motion on August 5, 2011. On
August 18, 2011, Stewart entered into a plea agreement with the State. The agreement
provided that Stewart would plead guilty to two counts of class B felony child molesting in
exchange for dismissal of the six remaining counts. The agreement left sentencing to the trial
court‟s discretion, except that the sentences imposed were to run concurrently. Following a
sentencing hearing on September 30, 2011, the trial court sentenced Stewart to concurrent
terms of twelve years on each count, with one year suspended. This appeal ensued.
Discussion and Decision
Stewart claims that the twelve-year sentence imposed by the trial court is
inappropriate and he asks us to revise it. Article 7, Section 6 of the Indiana Constitution
authorizes “„independent appellate review and revision of a sentence imposed by the trial
court.‟” Light v. State, 926 N.E.2d 1122, 1124 (Ind. Ct. App. 2010) (quoting Anglemyer v.
1
Because Stewart was sixteen years of age or older when the crimes were committed, the trial court
waived juvenile jurisdiction. Appellant‟s App. at 41-42.
2
While prosecution for a class B felony is generally barred unless commenced within five years after
the commission of the offense, a prosecution for class B felony child molesting, Indiana Code Section 35-42-4-
3(a), is barred unless commenced before the date that the alleged victim of the offense reaches thirty-one years
of age. Ind. Code § 35-41-4-2.
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State, 868 N.E.2d 482, 491 (Ind. 2007)) (brackets omitted), trans. denied. 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, we find the sentence “is inappropriate in light of
the nature of the offense and the character of the offender.” “[W]hether we regard a sentence
as appropriate at the end of the day turns on our sense of culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears
the burden to persuade this Court that his sentence is inappropriate. Anderson v. State, 961
N.E.2d 19, 33 (Ind. Ct. App. 2012), trans. denied.
Regarding the nature of the offenses, “the advisory sentence is the starting point the
Legislature selected as appropriate for the crime committed.” Pierce v. State, 949 N.E.2d
349, 352 (Ind. 2011). The sentencing range for a class B felony is between six and twenty
years, with an advisory sentence of ten years. Ind. Code § 35-50-2-5. One factor we
consider when determining if deviation from the advisory sentence was appropriate is
whether there is anything more or less egregious about the offense committed by the
defendant that makes it different from the “typical” offense that was accounted for by the
legislature when it set the advisory sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.
2008), trans. denied. Here, Stewart was in a position of trust as a babysitter of his very
young victims. He molested them on more than one occasion and threatened to tie the
children to the railroad tracks just outside their home if they were to report the molestations.
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The trial court found that the nature of these offenses warranted a sentence slightly in excess
of the advisory and, in light of the facts, we cannot disagree.
As for Stewart‟s character, between the time of the molestations and his arrest on
those charges, Stewart was convicted of five misdemeanors and three felonies. Although
Stewart‟s criminal history involves mainly alcohol related offenses, his extensive criminal
history evidences his disdain for the law. Moreover, the grace of probation has been
extended to Stewart numerous times, and he has violated that probation at each and every
turn.
Stewart maintains that his sentence does not reflect mitigating consideration that he
was only seventeen years old at the time of the offenses. We observe that a defendant‟s
youthful age is not automatically a significant factor in sentencing. “There are both relatively
old offenders who seem clueless and relatively young ones who appear hardened and
purposeful.” Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). Despite Stewart‟s age of
seventeen, Stewart‟s threat to his young victims is evidence of his hardened and purposeful
behavior. Additionally, we agree with the State that Stewart‟s letters written to the trial court
while awaiting sentencing shed ample light on Stewart‟s poor character. In one of those
letters, Stewart refers to his eight-year-old victim S.D. as a “ho” and states that he heard that
by the time she was in fifth grade, she was engaging in oral sex with “everyone.”
Appellant‟s Confidential App. at 67. We find Stewart‟s denigration of his victim
reprehensible and a clear indication of his lack of remorse.
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In sum, Stewart has failed to persuade us that his sentence is inappropriate in light of
the nature of his offenses and his character. Therefore, we affirm the sentence imposed by
the trial court.
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
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