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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: ROBERT D. KING Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BURTON FLORENCE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A05-0602-CR-101

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jane Magnus-Stinson, Judge Cause No. 49G06-0509-FA-149963

December 22, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Burton Florence challenges the appropriateness of his sixty-year sentence for two counts of child molesting. We affirm. FACTS AND PROCEDURAL HISTORY Florence and A.D. were dating and had two children together. Thirty-two-yearold Florence had sexual intercourse with A.D.'s twelve-year-old daughter A.S. approximately 25 times between January and August of 2005. He never used a condom during the encounters. A.D. learned of the relationship on August 31, 2005, when she discovered them together and A.S. admitted she and Florence had just had sex. When A.S. was examined at the hospital, she was six to seven weeks pregnant. A.S. had an abortion and DNA testing confirmed Florence was the father. Florence was charged with eight counts of child molesting as Class A felonies. 1 After being informed of the DNA test results, he agreed to plead guilty to two counts in exchange for the dismissal of the other pending counts. The plea agreement provided: Open argument with a cap of 40 years on the executed portion of the sentence. The court may impose additional suspended time beyond this sentence and place the Defendant on probation. Should the Defendant violate the terms of probation, the Court may order that the entire suspended sentence be executed at the Department of Correction. (App. at 49.) Florence consented to judicial fact-finding for sentencing purposes. The trial court assigned minimal weight to the mitigating factors Florence offered: his guilty plea, his acceptance of responsibility, his employment, and the hardship on his dependents.

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