Court of Appeals of Indiana | Memorandum Decision 67A05-1611-CR-2553 | June 22, 2017 Page 1 of 9

MEMORANDUM DECISION

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

Joel C. Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Donald Lee Troy,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 22, 2017

Court of Appeals Case No.

67A05-1611-CR-2553

Appeal from the Putnam Superior 

Court

The Honorable Charles D. Bridges, 

Judge

Trial Court Cause No.

67D01-1608-F5-123

Bailey, Judge.
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Case Summary

[1] Following a guilty plea, Donald Lee Troy (“Troy”) was convicted of Sexual 

Misconduct with a Minor, as a Level 5 felony,

1 and sentenced to six years

imprisonment, with five years executed and one year suspended to probation. 

Troy now appeals, challenging aspects of his sentence.

[2] We affirm.

Issues

[3] Troy presents the following expanded and restated issues:

I. Whether the trial court abused its sentencing discretion; 

and

II. Whether his sentence is inappropriate.

Facts and Procedural History

[4] On August 15, 2016, forty-nine-year-old Troy was charged with having sexual 

intercourse with A.B., who was over the age of fourteen and under the age of 

sixteen. Troy pleaded guilty to the offense pursuant to a plea agreement. A 

sentencing hearing was held on October 12, 2016, and the trial court imposed a 

sentence of six years, with one year suspended to probation.

 

1

Ind. Code § 35-42-4-9(a).
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[5] This appeal ensued.

Discussion and Decision

Abuse of Sentencing Discretion

[6] Troy argues that the trial court abused its sentencing discretion by improperly 

identifying certain aggravating factors.

[7] Sentencing decisions are within the discretion of the trial court and are 

reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 

482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). An abuse of 

discretion occurs if the decision is clearly against the logic and effect of the facts 

and circumstances before the court, or the reasonable, probable, and actual 

deductions to be drawn therefrom. Id. In sentencing a defendant, the trial 

court must enter a sentencing statement that includes “reasonably detailed 

reasons or circumstances for imposing a particular sentence,” id. at 491, and 

Indiana Code section 35-38-1-7.1 provides a non-exhaustive list of potential 

aggravating or mitigating circumstances. “[O]nce the trial court has entered a 

sentencing statement, which may or may not include the existence of 

aggravating and mitigating factors, it may then ‘impose any sentence that 

is . . . authorized by statute; and . . . permissible under the Constitution of the 

State of Indiana.’” Id. (quoting I.C. § 35-38-1-7.1(d)).

[8] One way the trial court abuses its sentencing discretion is when it “enter[s] a 

sentencing statement that explains reasons for imposing a sentence—including 
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a finding of aggravating and mitigating factors if any—but the record does not 

support the reasons.” Id. at 490. The trial court also abuses its sentencing 

discretion when “the reasons given are improper as a matter of law.” Id. at 491. 

If the trial court has abused its sentencing discretion, we will remand for 

resentencing “if we cannot say with confidence that the trial court would have 

imposed the same sentence had it properly considered reasons that enjoy 

support in the record.” Id.

[9] Troy contends that the trial court abused its sentencing discretion because it 

improperly “relied upon the probable cause affidavit not admitted as evidence 

during the sentencing hearing to find several aggravators not advanced by the 

State.” Appellant’s Br. at 10. In this respect, Troy challenges the following 

aggravators derived from the probable cause affidavit: (1) Troy was grooming 

other potential victims; (2) Troy encouraged A.B. to change her story; and (3) 

Troy asked A.B. to send him inappropriate pictures.

[10] Troy did not object to use of the probable cause affidavit when the trial court 

orally sentenced him, and so Troy has waived this argument. See Brown v. State, 

929 N.E.2d 204, 207 (Ind. 2010) (noting that failure to raise a contemporaneous 

objection results in waiver of appellate review). Waiver notwithstanding, even 

if we were to conclude that the probable cause affidavit was not properly before 

the trial court, in light of other aggravating circumstances that the trial court 

properly identified—that Troy engaged in multiple sexual acts with A.B. over 

an extended time and that he shifted blame to A.B. by telling the probation 
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department that she had flirted with him—we are confident that the trial court 

would have imposed the same sentence. See Anglemyer, 868 N.E.2d at 491.

[11] Troy also contends that the trial court abused its discretion by “seem[ing] to 

have applied aggravating weight to the fact that A.B. will have to deal with this 

crime her whole life,” pointing out that “no emotional impacts upon A.B. were 

demonstrated by the record.” Appellant’s Br. at 13. Troy focuses on a moment

in the trial court’s sentencing statement when it noted that Troy’s wife had been 

similarly victimized: “[Y]our poor wife, having gone through this herself, now 

she’s having to relive this . . . [s]he’s had to deal with this her whole life . . . [a]s 

will the victim in this case.” (Sent. Tr. at 64.) We do not think that the trial 

court, through this brief comment, found that the impact on A.B. was a distinct 

and separate aggravator. Indeed, as the State points out, the trial court did not 

use the language “aggravator” or “aggravating factor” as it had while reflecting 

on other circumstances. We thus conclude that the trial court did not abuse its 

discretion when it briefly acknowledged the testimony Troy’s wife had given.

[12] Finally, Troy asserts that the trial court abused its discretion when it identified 

his criminal history as an aggravating factor. The identified criminal history 

includes two matters, both of which Troy self-reported: an arrest for a juvenile 

offense of possession of paraphernalia and a 2011 arrest for illegal taking of a 

wild animal. Both matters were dismissed, and the pre-sentence investigation 

lacks further detail about the circumstances of either arrest.
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[13] A record of arrests, without more, does not constitute “criminal history” for the 

purposes of sentence aggravation. Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 

1991). Rather, “[t]he substance of [this] aggravator . . . is the fact that the 

defendant committed the other crime, not that he was arrested for it.” Id. 

Nonetheless, an arrest record “is relevant to the court’s assessment of the 

defendant’s character and the risk that he will commit another crime and is 

therefore properly considered by a court in determining [a] sentence.” Id. 

Indeed, the record might “reveal to the court that subsequent antisocial 

behavior on the part of the defendant has not been deterred even after having 

been subject to the police authority of the State and made aware of its oversight 

of the activities of its citizens.” Id.

[14] Here, the trial court acknowledged that Troy had been arrested and not 

convicted. The trial court nevertheless determined that the arrests amounted to 

a criminal history, and identified that history as an aggravating circumstance. 

We conclude that the trial court abused its discretion to the extent that it relied 

on the bare self-reported arrests to identify criminal history as an aggravating 

circumstance. Nonetheless, we conclude that the error was harmless. See Ind. 

Trial Rule 61 (providing that no error or defect in an order is ground for 

disturbing the order “unless refusal to take such action appears to the court 

inconsistent with substantial justice”). Although the trial court should not have 

characterized Troy’s arrests as “criminal history,” the trial court could have 

properly relied on those arrests to make a character determination about Troy, 

and thereby properly aggravate his sentence. See I.C. § 35-38-1-7.1(c) (noting 
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that trial court is not limited in “the matters . . . [it] may consider in 

determining the sentence”). We are ultimately confident that, had the trial 

court characterized Troy’s arrest record as indicative of an aggravating 

character attribute instead of as aggravating criminal history, the trial court 

would have reached the same sentence. See Anglemyer, 868 N.E.2d at 491.

2

Inappropriate Sentence

[15] Troy asks that we exercise our authority to revise his sentence.3 Even when a 

trial court has not abused its sentencing discretion, we may independently 

review a sentence under Indiana Appellate Rule 7(B). Under this rule, we 

“may revise a sentence authorized by statute 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.” In conducting 

our review, we consider “the culpability of the defendant, the severity of the 

crime, the damage done to others, and myriad factors that come to light in a 

given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The 

principal role of such review is to attempt to leaven the outliers, not achieve the 

perceived “correct” result in each case. Id. at 1225. The defendant bears the 

 

2

Indeed, we note that the trial court—although it could have more artfully done so—appeared to express 

concern about Troy’s character given his previous interactions with law enforcement, despite characterizing 

the arrest record as criminal history: “I’m not sure, if maybe you’ve got it in your head now when you 

commit a crime that you just walk away like you did the other two. I don’t know.” (Sent. Tr. at 64.)

3

In the conclusion of his brief, Troy makes a brief request for a revision of his sentence. We treat Troy’s 

claim as properly raised, reminding counsel that inappropriate sentence and abuse of discretion arguments 

are to be separately analyzed. See Anglemyer, 868 N.E.2d at 491.
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burden of persuading us that his sentence is inappropriate. Whatley v. State, 928 

N.E.2d 202, 207-08 (Ind. 2010).

[16] Regarding the nature of the offense, the advisory sentence “is the starting point 

the Legislature has selected as an appropriate sentence for the crime 

committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The 

sentencing range for a Level 5 felony is between one year and six years, with an 

advisory sentence of three years. I.C. § 35-50-2-6. Troy received the maximum 

sentence length of six years, with one year suspended to probation.

[17] As to the nature of Troy’s offense, Troy engaged in sexual intercourse with a

minor whom he employed. The intercourse, along with other sexual acts, 

occurred multiple times and took place at work. As to the character of the 

offender, Troy pleaded guilty, expressed remorse, and proactively attended

counseling, which reflects well on Troy’s character. Troy also appears to be a 

supportive parent to his step-children and a helpful caregiver to his father. 

However, Troy decided to take advantage of a minor who worked for him, and 

he seemingly attempted to shift blame to the victim when he told the probation 

department that A.B. had flirted with him. 

[18] Troy presents no argument as to the nature of his offense or his character, and 

we are not persuaded that his sentence warrants revision.
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Conclusion

[19] Troy has not directed us to reversible error in the trial court’s sentencing order, 

and the sentence is not inappropriate.

[20] Affirmed.

Vaidik, C.J., and Robb, J., concur.