Opinion
24A-CR-270
08-30-2024
Jason Eric Cull, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm, P.C. Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Tippecanoe Circuit Court The Honorable Sean M. Persin, Judge Trial Court Cause No. 79C01-2308-F4-42
ATTORNEY FOR APPELLANT
Bruce W. Graham
Graham Law Firm, P.C.
Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Jason Eric Cull ("Cull") appeals the sentence imposed after he pleaded guilty to Level 4 felony child solicitation. He argues that: (1) the trial court abused its discretion in sentencing him; and (2) his sentence is inappropriate in light of the nature of the offense and his character. Concluding that: (1) the trial court did not abuse its discretion; and (2) Cull's sentence is not inappropriate, we affirm the trial court's judgment.
[¶2] We affirm.
Issues
1. Whether the trial court abused its discretion in sentencing Cull.
2. Whether Cull's sentence is inappropriate. Facts
[¶3] In August 2023, the State charged forty-one-year-old Cull with Level 4 felony child solicitation. At an October 2023 guilty plea hearing, Cull admitted that he had: (1) solicited oral sex from a twelve-year-old juvenile ("the victim"); (2) intended to arouse or satisfy either his own sexual desires or the sexual desires of the victim; (3) used a computer in the solicitation conversation; and (4) met the victim at a gas station.
[¶4] Following the guilty plea hearing, Cull completed a psychological assessment as part of the presentence investigation process. The assessor determined that Cull has a mild intellectual disability and opined that he should be considered a vulnerable individual who could be at risk of exploitation or abuse in a correctional environment.
[¶5] At Cull's December 2023 sentencing hearing, the trial court reviewed Cull's presentence investigation report ("the PSI"), which revealed that Cull has a criminal history that includes convictions for Level 4 felony arson, Class A misdemeanor theft, and Class A misdemeanor criminal trespass. In addition, the PSI revealed that the trial court in the Level 4 felony arson case had sentenced Cull to five years in the Department of Correction ("the DOC"), with three years executed in community corrections and two years suspended to probation. The PSI also revealed that Cull had violated the terms and conditions of his community corrections placement multiple times, resulting in the trial court revoking his placement and ordering him to serve time in the DOC. In addition, the PSI revealed that Cull had also violated the terms and conditions of his probation.
[¶6] Also, at the sentencing hearing, the victim's mother ("the mother") testified that the victim struggles to trust men who, like Cull, have blond hair. The mother further testified that the victim "struggles now in the religious realm" because Cull attended a church that the victim had visited. (Tr. Vol. 2 at 35). Specifically, the victim had asked the mother "is this what happens at church? Are these the kind of people that are at church?" (Tr. Vol. 2 at 36). The mother also testified that the victim had also exhibited "[a] lot of self[-]destructive behaviors . . . in the form of self-harm" and attended therapy. (Tr. Vol. 2 at 36).
[¶7] Thereafter, the trial court found the following aggravating factors: (1) Cull's criminal history that includes a Level 4 felony arson conviction and two Class A misdemeanor convictions; (2) Cull's multiple community corrections violations; (3) Cull's probation violations; and (4) the emotional harm suffered by the victim. Regarding the emotional harm suffered by the victim aggravator, the trial court explained as follows:
I'm going to say the harm to the victim on some of these cases particularly involving child solicitation . . . there's no harm to the victim. In this case we have heard from mother that there is. And it's had a direct impact on her. So, I am going to find a harm to the victim in this case.(Tr. Vol. 2 at 47).
[¶8] In addition, the trial court found as mitigating factors that Cull: (1) took responsibility for his actions and pleaded guilty; (2) suffers from an intellectual disability, which impacts his critical thinking and may make him more vulnerable in the prison system; and (3) has family support. The trial court also found that the aggravating factors outweighed the mitigating factors.
[¶9] In determining Cull's sentence, the trial court further stated as follows:
You avoided prison last time, you got a 5 year prison sentence but the judge said hey I'm not going to put you in prison. Let's try community corrections and probation. That will work and then it was just violation after violation.... I mean that did not work out well. So that's a concern for me.(Tr. Vol. 2 at 47). Thereafter, the trial court sentenced Cull to eight (8) years, with six (6) years executed in the DOC and two (2) years suspended to probation.
[¶10] Cull now appeals his sentence. Decision
[¶11] Cull argues that: (1) the trial court abused its discretion in sentencing him; and (2) his sentence is inappropriate. We address each of his contentions in turn.
1. Abuse of Discretion
[¶12] Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is in the statutory range, it is subject to review only for an abuse of discretion. Id. 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. at 491. A trial court may abuse its discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91.
[¶13] Here, Cull argues that the trial court abused its discretion when it identified as an aggravating factor the emotional harm suffered by the victim. "[T]he emotional and psychological effects of a crime are inappropriate aggravating factors unless the impact, harm, or trauma is greater than that usually associated with the crime." Gober v. State, 163 N.E.3d 347, 354 (Ind.Ct.App. 2021) (cleaned up), trans. denied. Here, the trial court specifically found that the emotional harm suffered by the victim was an aggravating factor because the mother had testified that the offense had had a direct impact on the victim that was greater than that usually associated with the crime. Specifically, the mother testified that the victim struggled to trust men with blond hair and struggled in the religious realm because Cull had attended the church that the victim had visited. According to the mother, the victim had wondered if this was what happened at church and if these were the kind of people that were at church. The mother further testified that the victim had exhibited selfdestructive behaviors in the form of self-harm. Cull does not argue that these emotional harms are normally associated with the offense of child solicitation. Further, he has not presented us with any authority indicating that any of these emotional harms are normally associated with the offense of child solicitation.
[¶14] Based on the foregoing, we conclude that the trial court did not abuse its discretion in considering the emotional harm to the victim as an aggravating factor. See Gober, 163 N.E.3d at 354 (affirming the trial court's determination that the trauma to the child victim was an aggravating circumstance).
[¶15] We further note that even if the trial court had erred in identifying this aggravating factor, we would not remand Cull's case to the trial court for resentencing. When a trial court abuses its discretion by considering an improper aggravating circumstance, we remand for resentencing only "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." Anglemyer, 868 N.E.2d at 491.
[¶16] Here, the trial court found the following additional aggravating factors: (1) Cull's criminal history, which includes a Level 4 felony arson conviction and two misdemeanor convictions; (2) multiple community corrections violations resulting in revocations; and (3) probation violations resulting in revocations. Cull does not challenge the validity of these additional aggravating circumstances. In light of these additional unchallenged aggravating circumstances, we are confident that the trial court would have imposed the same sentence irrespective of its consideration of the effects of the offense on the victim.
2. Inappropriate Sentence
[¶17] Cull also argues that his aggregate eight-year sentence, with six years executed in the DOC and two years suspended to probation, is inappropriate. Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the "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). Sentence modification under Rule 7(B) is reserved for a "rare and exceptional case." Skeens v. State, 191 N.E.3d 916, 923 (Ind.Ct.App. 2022) (cleaned up).
[¶18] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, Cull pleaded guilty to a Level 4 felony. The sentencing range for a Level 4 felony is between two (2) to twelve (12) years, and the advisory sentence is six (6) years. IND. CODE § 3550-2-5.5. The trial court sentenced Cull to eight years, with six years executed and two years suspended to probation. This sentence is less than the maximum twelve-year sentence.
[¶19] Regarding the nature of the offense, we note that forty-one-year-old Cull solicited oral sex from the twelve-year-old victim. Regarding Cull's character, we note that Cull has a criminal history that includes one felony conviction and two misdemeanor convictions. In addition, Cull has a history of multiple community corrections revocations as well as probation revocations. Cull's former contacts with the law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind.Ct.App. 2009), trans. denied.
[¶20] Based on the nature of the offense and his character, Cull has failed to persuade this Court that his eight-year sentence, with six years executed at the DOC and two years suspended to probation, is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm Cull's sentence.
[¶21] Affirmed.
May, J., and Brown, J., concur.