Preview:

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: DOUGLAS S. WALTON Walton Law Office Evansville, Indiana

FILED
Jan 31 2011, 9:47 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROY A. SELBY, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

No. 63A01-1005-CR-235

APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Jeffrey L. Biesterveld, Judge Cause No. 63C01-0903-FA-173

January 31, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issues Roy Selby was convicted following a jury trial of one count of child molesting as a Class A felony and one count of child molesting as a Class C felony. The trial court imposed an aggregate fifty-year sentence. Selby appeals, raising three issues for our review which we consolidate to the following two: 1) whether the trial court abused its discretion in considering additional pending child molesting charges to be an aggravating factor; and 2) whether the fifty-year sentence is inappropriate in light of the nature of his offenses and his character. Concluding the trial court did not commit reversible error in sentencing Selby and that his fifty-year sentence is not inappropriate, we affirm. Facts and Procedural History Selby was found guilty by a jury of two incidents of molesting S.L. when she was approximately twelve years old. S.L. was best friends with Selby's twin daughters from the time they met in kindergarten and lived across the street from the Selby family for a time. S.L. spent a great deal of time with Selby and his family. The charges stemmed from Selby fondling S.L. by picking her up and touching her genital area and from Selby approaching her as she lay on the family room floor during a sleepover, moving her underwear aside, and licking her genital area. Prior to the jury trial, Selby filed a motion in limine regarding several matters, including prior bad acts, which the trial court granted. Four additional child molesting cases were pending against Selby at the time of trial. Two of the alleged victims testified at trial but the motion in limine prevented them from testifying about anything other than their observations of the interaction between Selby and S.L. They were not allowed to
2

testify at trial regarding their own encounters with Selby or their observations of the interaction between Selby and the other alleged victims. These same two alleged victims testified at the sentencing hearing, however, and were allowed to testify over Selby's objection to facts surrounding Selby's alleged molestation of each of them. In sentencing Selby, the trial court found the following aggravating and mitigating factors: In sentencing [Selby], the Court has considered: (1) The harm suffered by the victim of said offense was significant. (2) [Selby] was in a position of having care, custody, or control of the victim of the offense. (3) [Selby's] character is such that probable cause has been found in four (4) other cases for child molesting as a Class "C" felony. (4) [Selby's] conduct poses a risk to this community. (5) That imposition of a reduced sentence or suspension of sentence would depreciate the seriousness of the offenses. (6) [Selby] lacks remorse as evidenced by his prior testimony and conduct. The Court finds the following mitigating factors: (1) [Selby] has a limited history of charged delinquency or criminal activity or the person has led a law-abiding life for a substantial period before commission of the crime. Appellant's Brief at 10-11. The trial court found the aggravating factors outweighed the mitigating factor and sentenced Selby to fifty years for the Class A felony conviction, to be served concurrently with a seven-year sentence for the Class C felony conviction. Selby now appeals his sentence. Discussion and Decision I. Abuse of Discretion Selby first contends the trial court erred in allowing two other alleged victims of molestation to testify to the specifics of their own molestations at the sentencing hearing
3

and abused its discretion in considering the pending charges related to those victims to be an aggravating factor. In Smylie v. State, 823 N.E.2d 679 (Ind. 2005), cert. denied, 546 U.S. 976 (2005), our supreme court held that Indiana's then-existing fixed-term presumptive sentencing scheme was unconstitutional based upon a United States Supreme Court decision that any factor which increased a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Id. at 683 (citing Blakely v. Washington, 542 U.S. 296, 301 (2004)). In response to Smylie, the legislature amended the sentencing scheme, effective April 25, 2005, to eliminate the problematic presumptive sentence from which the sentence could be increased or decreased and created sentencing ranges with non-binding "advisory sentences" instead. Under this new sentencing scheme, the statutory maximum is the upper limit of the statutory range, and a sentence can no longer be increased beyond the statutory maximum. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007). The advisory sentencing scheme, therefore, does not run afoul of Blakely even with judicial findings of aggravating circumstances. Id. The sentencing scheme in effect at the time of a defendant's crime is the appropriate sentencing scheme to be applied. Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007). Without specifically arguing so, Selby apparently asserts his crimes were committed prior to April 25, 2005, and his sentence was therefore subject to the dictates of Blakely.1 The information in this case alleges that "on or about the calendar year
Only if the offenses were committed prior to April 25, 2005, would Blakely play a role in Selby's sentencing; however, we note that in his abuse of discretion argument, Selby cites the maxim that a trial court may impose any sentence that is authorized by statute and permissible under the constitution regardless of the presence or absence of aggravating or mitigating factors, which is post-Blakely amendment language. See Ind. Code

Download Roy A. Selby v. State of Indiana.pdf

Indiana Law