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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: RUTH JOHNSON Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ARTHUR THADDEUS PERRY Deputy Attorney General Indianapolis, Indiana

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

No. 49A05-0610-CR-574

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila Carlisle, Judge Cause No. 49G03-0601-FA-12027

August 22, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE

Jerry L. Jackson ("Jackson") appeals his sentences subsequent to pleading guilty to one count of burglary, as a class A felony, and two counts of criminal deviate conduct, as class B felonies. We affirm. ISSUE 1. Whether Jackson's enhanced and consecutive sentences are statutorily permissible. 2. Whether Jackson's consecutive sentences are inappropriate. FACTS On January 25, 2005, the State charged Jackson with Count I, burglary, as a class A felony; Count II, rape, as a class B felony; Count III, rape, as a class B felony; Count IV, criminal deviate conduct, as a class B felony; Count V, criminal deviate conduct, as a class B felony; Count VI, criminal deviate conduct, as a class B felony; Count VII, criminal deviate conduct, as a class B felony; and Count VIII, theft, as a class D felony. On August 30, 2006, Jackson pled guilty pursuant to a plea agreement. As part of that agreement, Jackson agreed to plead guilty to Count I, burglary, as a class A felony; Count IV, criminal deviate conduct, as a class B felony; and Count VI, criminal deviate conduct, as a class B felony, and the State agreed to dismiss the other five counts, as well as another case under a different cause number. The sentencing was left to the discretion of the trial court, with the parties free to argue the length of the initial executed sentence and the length of any suspended sentence; however, Jackson's sentence had a cap of seventy-five years. The parties stipulated to the following summarized factual basis. 2

Specifically, Jackson did break and enter L.M.'s residence. That Jackson beat and violently raped L.M., a sixty-nine year-old woman, and committed acts of deviate sexual conduct by forcing his penis into her anus and mouth. That the ordeal lasted for

approximately three hours. Jackson acknowledged that these facts were accurate. After the trial court accepted the plea agreement, the sentencing hearing was set for September 8, 2006. 1 At the sentencing hearing the trial court found as aggravating factors: 1) Jackson's extensive criminal history; 2) that Jackson was on probation at the time he committed the offenses against L.M.; 3) that Jackson's victim was sixty-nine years-old; and 4) the nature and circumstances surrounding the crimes in that Jackson burglarized L.M.'s residence and violently raped and sodomized her for three hours. The trial court gave moderate mitigating weight to Jackson's statements of remorsefulness and his acceptance of responsibility. However, the trial court did not extend any

mitigating weight to Jackson's drug and alcohol problems. The trial court found that the aggravating factors far outweighed the mitigating factors and sentenced Jackson to a forty-five year executed sentence on Count I, burglary, as a class A felony; a fifteen year executed sentence on Count IV, a separate act of criminal deviate conduct, as a class B felony; and a fifteen year executed sentence on Count VI, another separate act of criminal deviate conduct, as a class B felony. All of the sentences were ordered to run consecutively for a total executed sentence of seventy-five years. The trial court dismissed all the other charges against Jackson.

1

On September 7, 2006, the State filed a motion to continue the sentencing hearing because the State was unable to obtain a certified interpreter for the September 8 date; therefore, the trial court reset the hearing for September 13, 2006.

3

DECISION 1. Advisory Sentence Jackson first argues that the trial court was required to use the statutory advisory sentence when imposing consecutive sentences, and cited the case of Robertson v. State, 2 860 N.E.2d 621 (Ind. Ct. App. 2007) in support. We disagree. Sentencing determinations are within the sound discretion of the trial court, and we will only reverse for an abuse of that discretion. Field v. State, 843 N.E.2d 1008, 1010 (Ind. Ct. App. 2006), trans. denied. The advisory sentence is merely "a guideline sentence that courts may voluntarily consider as the midpoint between the maximum sentence." See I.C.

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