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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: S. ANTHONY LONG Long & Mathies Law Firm Boonville, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TONY V. LOTT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 87A04-0604-CR-219

APPEAL FROM THE WARRICK SUPERIOR COURT The Honorable Keith A. Meier, Judge Cause No. 87D01-0309-FA-172

November 17, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Tony V. Lott appeals his sentence following his convictions for Incest, as a Class B felony, and Child Molesting, as a Class C felony, pursuant to a guilty plea. We address a single issue on review, namely, whether the trial court abused its discretion when it enhanced his sentence. We affirm. FACTS AND PROCEDURAL HISTORY In May of 1999, Lott's then-wife, Dara, learned that Lott had inappropriately touched their four-year-old daughter, S.L. When confronted, Lott told Dara that "it was just one time and . . . it would never happen again." Transcript at 30. Subsequently, Lott sought medical attention for depression. However, in August of 2001, Dara learned that Lott had molested S.L. "in excess of twenty times prior to [her] finding out about that one time." Id. at 32. Dara also learned that Lott, when he was a child, had been

inappropriately fondled by his older brother and that he had a sexual relationship with his sister during their childhood. Dara "immediately informed him to get his stuff out of the house that evening, and that [she] would file for divorce the next day." Id. Dara also informed the local authorities, and the State brought charges against Lott for child molesting, as a Class A felony, incest, as a Class B felony, and child molesting, as a Class C felony. Lott entered a preliminary plea of not guilty on September 29, 2003, followed by a Notice of Insanity Defense on May 21, 2004. On June 27, 2005, Lott pleaded guilty but mentally ill to the incest and Class C child molesting counts. In exchange, the State
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dropped the Class A child molesting count. Lott then underwent three independent, court-ordered psychological evaluations, by Dr. Thomas Liffick, Dr. David Cerling, and Dr. John Ireland, for purposes of evaluating his claim of insanity. On March 21, 2006, the trial court found Lott guilty but mentally ill on the incest and Class C child molesting counts. In sentencing Lott, the trial court found one

aggravator, namely, Lott's position of trust with S.L. The trial court also explicitly considered the following mitigators: the hardship of incarceration on Lott, his remorse, and Lott's guilty plea. The trial court expressly declined to consider whether Lott posed a risk to commit future crimes, the victim's age, any criminal history Lott may have had, and Lott's potential need for correctional or rehabilitative treatment. After finding that the aggravator outweighed the mitigators, the trial court sentenced Lott to eighteen years on the incest count and seven years on the child molesting count. The trial court imposed the sentences concurrently per the plea agreement. This appeal ensued. DISCUSSION AND DECISION Sentencing decisions are generally within the discretion of the trial court and will only be reversed upon a showing of an abuse of discretion. Marshall v. State, 832 N.E.2d 615, 623 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or if the trial court has misinterpreted the law. Id. The court may increase a sentence or impose consecutive sentences if the court finds aggravating factors. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001); Ind. Code

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