MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Feb 21 2017, 8:21 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Tyler G. Banks
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rodney Joe McGuire,                                      February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A02-1605-CR-1148
        v.                                               Appeal from the
                                                         Cass Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Leo T. Burns, Judge
                                                         Trial Court Cause No.
                                                         09C01-1502-FA-1



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017    Page 1 of 8
[1]   Rodney Joe McGuire (“McGuire”) pleaded guilty to one count of Class A

      felony child molesting1 and was sentenced to a forty-year executed sentence in

      the Indiana Department of Correction. He appeals, raising the following

      restated and consolidated issue for our review: whether the trial court abused

      its discretion when it sentenced him.


[2]   We affirm.


                                    Facts and Procedural History
[3]   Between January 1, 2007 and December 31, 2012, McGuire, who was over

      twenty-one years old at that time, molested B.P., a male child who was under

      the age of twelve at the time. B.P. did not report the molestation to the police

      until January 2015. When he did, he recounted that McGuire, who had been in

      a relationship with B.P.’s mother for twelve years, began molesting him when

      B.P. was eight or nine years old. B.P. told police that McGuire molested him

      over 100 times and that the molestation consisted of both oral and anal sex.

      The molestation continued until around 2013 when B.P. was in the seventh or

      eighth grade.


[4]   The State charged McGuire with six counts of Class A felony child molesting.

      McGuire later entered into a plea agreement with the State, wherein he would

      plead guilty to one count of Class A felony child molesting in exchange for the



      1
        See Ind. Code § 35-42-4-3(a). We note that, effective July 1, 2014, a new version of this criminal statute was
      enacted. Because McGuire committed his crimes prior to July 1, 2014, we will apply the statute in effect at
      the time he committed his crimes.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017            Page 2 of 8
      State’s dismissal of the remaining counts. The plea agreement specified that

      sentencing would be left to be determined by the trial court. Appellant’s App. at

      69. The agreement also included the following waiver: “Defendant

      acknowledges that he . . . hereby waives any right to challenge the trial court’s

      finding on sentencing, including the balancing of mitigating and aggravating

      factors and further waives his right to have the Indiana Court of Appeals review

      his sentence under Indiana Appellate Rule 7(B).” Id. at 69-70.


[5]   A plea hearing was held, at which the trial court initially informed McGuire

      that the sentencing range for a Class A felony was twenty to fifty years with an

      advisory sentence of thirty years. Tr. at 12. After the trial court made this

      statement, the State offered that, because the victim of the crime was under the

      age of twelve and McGuire was over the age of twenty-one, the minimum

      sentence was actually thirty years. Id. at 12-13. The trial court, McGuire, and

      defense counsel all stated their understanding that thirty years was the

      minimum sentence pursuant to a sentencing statute. Id. at 12-14. During this

      discussion, the trial court also advised McGuire that he would have the right to

      appeal his sentence. Id. at 11. At the conclusion of the plea hearing, the trial

      court took the acceptance of McGuire’s guilty plea under advisement.


[6]   Subsequently, a sentencing hearing was held, and after testimony was taken

      from the investigating detective and a representative of the victim’s family, the

      trial court accepted McGuire’s guilty plea and imposed sentence. The trial

      court found as aggravating factors that McGuire had a criminal history, the

      very young age of the victim, and the fact that McGuire was in a position of

      Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017   Page 3 of 8
      providing care, custody, or control of the victim when the offense was

      committed. Appellant’s App. at 91. The trial court also found McGuire’s guilty

      plea as a mitigating factor. Id. at 90. The trial court found that the aggravators

      outweighed the mitigators and, therefore, justified an aggravated sentence. Tr.

      at 37. The trial court next stated: “The law itself, as was pointed out at the plea

      hearing, actually suggests a range of from thirty (30) to fifty (50) years in the

      Department of Correction. Mr. McGuire, I am sentencing you to forty (40)

      years in the Department of Correction.” Id. at 37-38. Additionally, in the

      written sentencing order, the trial court stated, “This is an aggravated sentence

      based on the fact that, pursuant to statute, the range of sentence in this case is

      from 30 to 50 years.” Appellant’s App. at 90. During the sentencing hearing, the

      trial court also informed McGuire that he would have the right to appeal the

      sentence. Tr. at 39-40. McGuire now appeals.


                                     Discussion and Decision
[7]   Sentencing decisions are within the discretion of the trial court and are

      reviewed on appeal 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 (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)).




      Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017   Page 4 of 8
[8]   McGuire argues that the trial court abused its discretion when it sentenced him.

      He specifically claims that the trial court’s sentencing decision was based upon

      a mistaken belief that the minimum sentence for his offense was thirty years.

      Because the minimum sentence for his offense was actually twenty years, and

      the trial court imposed his sentence based on a misunderstanding of the

      minimum sentence, McGuire asserts that his sentence was erroneous and must

      be reversed.2


[9]   The State concedes that the trial court mistakenly informed McGuire that the

      minimum sentence for his conviction was thirty years. Even though the parties

      did not name the statute relied on for the assumption that thirty years was the

      minimum sentence, presumably they were referring to Indiana Code section 35-

      50-2-2(i),3 which at the time of sentencing stated, in pertinent part: “If a person

      is: (1) convicted of child molesting . . . as a Class A felony against a victim less

      than twelve (12) years of age; and (2) at least twenty-one (21) years of age; the

      court may suspend only that part of the sentence that is in excess of thirty (30)




      2
        McGuire also asserts, and the State agrees, that he has not waived his right to appeal his sentence.
      Although the written plea agreement included a statement that he acknowledged that by signing the plea
      agreement, he was waiving any right to challenge the trial court’s finding on sentencing, the trial court, before
      accepting McGuire’s plea agreement, advised him that he had a right to appeal his sentence. Tr. at 11.
      Under these circumstances, we do not find that McGuire has waived his right to appeal based on the terms of
      his plea agreement. See Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009) (concluding that Bonilla
      did not waive right to appeal sentence where trial court advised him at guilty plea hearing and again at
      sentencing hearing that he had right to appeal sentence), trans. denied; Ricci v. State, 894 N.E.2d 1089, 1093-94
      (Ind. Ct. App. 2008) (concluding that Ricci did not waive right to appeal sentence where trial court advised
      him at guilty plea hearing that he had right to appeal sentence), trans denied.
      3
        Indiana Code section 35-50-2-2 was repealed effective July 1, 2014. Although much of the statute was
      recodified under Indiana Code section 35-50-2-2.2, the portion at issue here was not included in the
      recodification.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017             Page 5 of 8
       years.” Ind. Code § 35-50-2-2(i). Although it was proper for the trial court to

       apply this statute to McGuire, because his conviction met the elements of

       section 35-50-2-2(i), and the statute was in effect at the time of sentencing, the

       trial court erred in its belief that the statute changed the minimum sentence that

       could be imposed for McGuire’s conviction for Class A felony child molesting.

       See Miller v. State, 943 N.E.2d 348, 349 (Ind. 2011) (holding that Indiana Code

       section 35-50-2-2(i) did not set a minimum sentence for a Class A felony child

       molesting conviction). Contrary to the trial court’s mistaken belief that the

       statute changed the minimum sentence for McGuire’s conviction, the statute

       actually only limited the trial court’s discretion to suspend any portion of the

       sentence imposed for this particular crime that exceeds thirty years. A trial

       court could still impose a sentence less than thirty years, but in doing so could

       not suspend any part of that sentence. See id. Consequently, any fully-executed

       sentence would not implicate the statute. Therefore, to the extent that the trial

       court advised McGuire that thirty years was the minimum sentence for his

       conviction, the trial court abused its discretion in sentencing McGuire.


[10]   However, although the trial court may have abused its discretion in sentencing

       a defendant, remand is not necessary if we can “say with confidence that the

       trial court would have imposed the same sentence” had it properly considered

       the facts and law applicable to the case. Anglemyer, 868 N.E.2d at 491. Indiana

       Appellate Rule 66(A) provides, “No error or defect in any ruling or order or in

       anything done or omitted by the trial court or by any of the parties is ground for

       granting relief or reversal on appeal where its probable impact, in light of all the


       Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017   Page 6 of 8
       evidence in the case, is sufficiently minor so as not to affect the substantial

       rights of the parties.” “When we find an irregularity in the trial court’s

       sentencing decision, we may remand to the trial court for a clarification or a

       new sentencing determination, or affirm the sentence if the error is harmless, or

       impose a proper sentence.” Rios v. State, 930 N.E.2d 664, 669 (Ind. Ct. App.

       2010) (citing Merlington v. State, 814 N.E.2d 269, 273 (Ind. 2004)).


[11]   In the present case, the trial court sentenced McGuire to forty years executed in

       the Department of Correction after finding three aggravating circumstances and

       one mitigating circumstance. Tr. at 37-38. One aggravating factor can be a

       sufficient basis to enhance a sentence. Smith v. State, 908 N.E.2d 1251, 1253

       (Ind. Ct. App. 2009). Based on the three aggravators and one mitigator found,

       the trial court determined that the present case “call[ed] for an aggravated

       sentence,” and it sentenced him to an enhanced sentence ten years above the

       advisory sentence. Tr. at 37-38. McGuire focuses on the statement in the

       written sentencing statement, where the trial court stated that the aggravated

       forty-year sentence was “based on the fact” that the trial court believed that the

       sentencing range was between thirty and fifty years. Appellant’s App. at 90.

       However, this statement, together with the oral sentencing statement that the

       conviction “called for an aggravated sentence,” tr. at 38, makes it clear that the

       trial court intended to impose an enhanced sentence, or a sentence in excess of

       the advisory sentence of thirty years. See Ind. Code § 35-50-2-4 (advisory

       sentence for a Class A felony is thirty years); Anglemyer, 868 N.E.2d at 494 (the

       advisory sentence is the starting point the Legislature has selected as an

       Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017   Page 7 of 8
       appropriate sentence for the crime committed).4 Because it was evident that the

       trial court intended to sentence McGuire to an enhanced sentence, it is

       irrelevant that the trial court incorrectly believed that thirty years was the

       minimum sentence. There were sufficient aggravating circumstances to justify

       the enhanced sentence of forty years, and we conclude that any error in

       sentencing was harmless.


[12]   Affirmed.


[13]   Robb, J., and Barnes, J., concur.




       4
        Additionally, Indiana Code section 35-50-2-2(i) was not even pertinent to the trial court’s sentencing
       decision in the present case since the trial court sentenced him to a fully executed term of forty years. Tr. at
       38 (“I am not suspending any portion of this offense.”).

       Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017              Page 8 of 8