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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: WILLIAM BYER, JR. Byer & Byer Anderson, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana SCOTT L. BARNHART Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DEREK D.L.S HUTCHISON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 48A02-0611-CR-1059

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-0605-FB-118

November 16, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Following a plea of guilty but mentally ill, Derek Hutchison appeals his sentence for rape, a Class B felony. Hutchison raises one issue on appeal, which we restate as whether his sentence of twenty years, with fifteen years executed and five suspended, is inappropriate based on the nature of the offense and his character. We also address whether the trial court abused its discretion in sentencing Hutchison. Concluding that the trial court did not abuse its discretion in imposing Hutchison's sentence and that Hutchison's sentence is not inappropriate, we affirm. Facts and Procedural History On February 14, 2006, eighteen-year-old Hutchison accompanied his mother to St. Joseph's Hospital in Anderson after she complained of a fever. At some point that evening or after midnight, Hutchison began roaming around the hospital. Initially, he entered the room of eighty-five-year-old patient L.A. L.A. awoke to find Hutchison sitting on her bed and rubbing his hand across her face. L.A. stated she "fear[ed] for her life." Appellant's Appendix at 76. As he left her bedside, Hutchison ran his hand along L.A.'s breast. Shortly after leaving L.A.'s room, Hutchison entered the room of ninety-two-year-old L.E., also a patient at the hospital. L.E. was comatose 1 and had various medical devices assisting her, including an IV, an oxygen machine, and a waste extraction tube. After

The Presentence Investigation Report ("PSI") is the only part of the record that states L.E. was in a coma. However, even if L.E. was not in a coma, other parts of the record state she nevertheless was unaware of Hutchison's presence, and Hutchison admitted as much during his plea hearing.

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attempting to wake L.E., Hutchison lifted L.E.'s hospital gown, climbed on top of her, and had vaginal intercourse with her for approximately two to three minutes. Anderson police officers responding to these incidents found Hutchison hiding in a basement office of the hospital. The door to the office was locked, but Hutchison had gained access by climbing over a wall that separated the office from the hospital's common area. When officers apprehended Hutchison, he was carrying a plastic tub that contained various items, including personal planners, soft drinks, candy, and music CDs, all of which were hospital property. The State charged Hutchison with burglary, a Class C felony; theft, a Class D felony; and sexual battery, a Class D felony, based on the incidents in the basement office and with L.A. Shortly thereafter, the State charged Hutchison with rape, a Class B felony, based on the incident with L.E. The parties agreed that Hutchison would plead guilty to the rape charge and that the State would dismiss the burglary, theft, and sexual battery charges. Sentencing was left to the trial court's discretion, except that the executed portion of Hutchison's sentence could not exceed fifteen years. After accepting Hutchison's plea of guilty but mentally ill, the trial court conducted a sentencing hearing. Thereafter the trial court issued a sentencing statement, which reads in relevant part as follows: The Court finds aggravation: 1) Prior juvenile criminal and delinquent acts; 2) The defendant is in need or correctional and/or rehabilitative services that can best be provided by commitment to a penal facility; 3) The advanced age of the victim; 4) The victim was physically infirm at the time of the instant offense; and 5) Prior attempts at rehabilitation have not been successful. The Court finds mitigation: 1) The defendant plead [sic] guilty to the Instant Offense, 3

saving the State the time and cost of a trial; 2) Defendant has a pattern of mental illness and diagnosis, none of which constitutes a defense; and 3) Defendant's highly dysfunctional home environment and a life of instability. Id. at 113. Based on these findings, the trial court sentenced Hutchison to a total sentence of twenty years, with fifteen years executed and five suspended. Hutchison now appeals. Discussion and Decision I. Imposition of Sentence Although Hutchison's primary argument is that his sentence was inappropriate based on the nature of the offense and his character, portions of this argument intersperse claims that the trial court abused its discretion in sentencing him because it did not "properly consider[] the mitigating factors in sentencing," appellant's brief at 9, and "fail[ed] to balance the applicable mitigating and aggravating factors," id. at 11. To the extent these claims urge us to review the trial court's weighing of aggravating and mitigating factors for an abuse of discretion, our supreme court's decision in Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), precludes such a review. In Anglemyer, the court concluded that the weight a trial court gives to aggravating and mitigating factors is not subject to appellate review for an abuse of discretion because, under the new statutory sentencing scheme, 2 "the trial court no longer has any obligation to `weigh' aggravating and mitigating factors against each other . . . [and therefore] can not now be said to have abused its discretion in failing to `properly weigh' such factors." 868 N.E.2d

This sentencing scheme became effective on April 25, 2005. See id. at 491 n.9. Because Hutchison committed his crime after that date, the new scheme applies to his sentence. See Gibson v. State, 856 N.E.2d 142, 146 (Ind. Ct. App. 2006).

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at 491. Thus, we are precluded from reviewing Hutchison's claim that the trial court failed to properly weigh aggravating and mitigating factors. 3 II. Appropriateness of Sentence Hutchison argues his sentence is inappropriate based on the nature of the offense and his character. A. Standard of Review Our rules permit revision of a sentence "if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). We may "revise sentences when certain broad conditions are satisfied." Neale v. State, 826 N.E.2d 635, 639 (Ind. 2005). In 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." Weiss v. State, 848 N.E.2d 1070, 1072 (Ind. 2006). However, "a defendant must persuade the appellate court that his or her sentence has met this inappropriateness standard of review." Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). B. Nature of the Offense and Character of the Offender The trial court sentenced Hutchison to twenty years, with fifteen years executed and five suspended. Thus, Hutchison's executed sentence was five years above the advisory sentence and five years below the maximum sentence. See Ind. Code

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