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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: THOMAS W. VANES Crown Point, Indiana

FILED
May 27 2008, 11:57 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
VICTOR VEGA TORRES, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 45A03-0708-CR-385

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Kathleen Sullivan, Judge Pro Tempore Cause No.45G01-0609-FA-53

May 27, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following a guilty plea, Victor Torres appeals his sentence for child molesting, a Class C felony. On appeal, Torres raises one issue, which we restate as whether Torres's statutory maximum sentence of eight years, with two years suspended to probation, is inappropriate in light of the nature of the offense and his character. Concluding the sentence is inappropriate, we reverse and remand with instructions that the trial court enter a five-year sentence, with one year suspended to probation. Facts and Procedural History1 At some point between August 1, 2004, and July 1, 2005, B.D., who was either five or six years old,2 spent the night at his grandfather's home in East Chicago. Torres also spent the night there. According to the probable cause affidavit, on one occasion that night B.D. refused Torres's request that B.D. "get close to him." Appellant's Appendix at 9. Later that evening, B.D. went to sleep on a couch in the living room wearing a t-shirt and blue jeans. Some time later, B.D. awoke in the nude to find Torres sucking on his "private area." Id. When Torres realized B.D. was awake, he ceased and helped B.D. put his clothes back on. B.D. reported these events to his mother, who in turn filed a police report on April 14, 2006. On September 20, 2006, the State charged Torres with child molesting as a Class A

We heard oral argument on April 8, 2008, at Ivy Tech Community College in Lafayette, Indiana. We thank counsel for their presentations, and extend our gratitude to Ivy Tech's students, faculty, and administration for their hospitality.
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B.D.'s birth date is December 6, 1998.

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felony and child molesting as a Class C felony.3 On May 24, 2007, the parties entered into a plea agreement pursuant to which Torres agreed to plead guilty to child molesting as a Class C felony and the State agreed to dismiss the charge of child molesting as a Class A felony. Sentencing was left to the trial court's discretion, and the parties stipulated to a factual basis that differed slightly from the probable cause affidavit. Specifically, the stipulated factual basis omitted that Torres sucked on B.D.'s "private area," appellant's app. at 9, and stated instead that Torres fondled B.D.'s penis "with the intent to arouse or satisfy his own sexual desires or those of the victim," id. at 38, thus reducing the offense to a Class C felony. On the same day the parties entered into the plea agreement, the trial court accepted Torres's guilty plea and scheduled a sentencing hearing for July 10, 2007. At the sentencing hearing, the trial court received documentary evidence that included Torres's mental health records and heard testimony from Torres's mother, B.D.'s mother, and Torres. On the same day, the trial court entered an order finding that Torres's guilty plea, history of mental illness, and status as a victim of child abuse were mitigating circumstances and that Torres's criminal history, which included two convictions of criminal recklessness as Class A misdemeanors, and B.D.'s age were aggravating circumstances. The trial court also found that "each aggravating factor, standing alone, outweighs any mitigating factor." Id. at 41. Based on these findings, the trial court sentenced Torres to the statutory maximum of eight years, with

The elements distinguishing child molesting as a Class A felony and child molesting as a Class C felony are that the former require that the defendant be at least twenty-one years of age and that the defendant perform or submit to sexual intercourse or deviate sexual conduct, while the latter does not require that the defendant be at least twenty-one years of age, but does require that the defendant perform or submit to

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two years suspended to probation. Torres now appeals. Discussion and Decision I. Standard of Review4 This court has authority to revise 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), and we recognize that 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). In determining whether a sentence is inappropriate, we examine both the nature of the offense and the character of the offender. See Payton v. State, 818

fondling or touching with intent to arouse or to satisfy either the victim's or the defendant's sexual desires. See Ind. Code

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