Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016 Page 1 of 8

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

William T. Myers

Grant County Public Defender

Marion, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jesse Larry Dean Clem,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 17, 2016

Court of Appeals Case No.

27A02-1604-CR-915

Appeal from the Grant Circuit 

Court 

The Honorable Mark Spitzer, 

Judge

Trial Court Cause No.

27C01-1503-FA-3

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1604-CR-915 | November 17, 2016 Page 2 of 8

Case Summary

[1] Jesse Larry Dean Clem (“Clem”) was convicted of two counts of Child 

Molesting, as Class A felonies,1 and was adjudicated to be a Habitual Offender.2 

He was sentenced to an aggregate term of imprisonment of seventy-five years, 

and now appeals.

[2] We remand for correction of the sentencing order.

Issue

[3] Clem raises a single issue for our review: whether the trial court abused its 

discretion in determining aggravating and mitigating factors, and in its 

weighing thereof.

Facts and Procedural History

[4] From 2003 to 2011, Clem lived off-and-on with his sometime-girlfriend, J.A., in 

a home in Marion. J.A. had a daughter from a prior relationship, A.A., who 

was born in 2000 and lived with J.A. until June 2011. J.A. and Clem produced 

three children, A.C., D.C., and B.C. These three children also lived with J.A.

 

1

Ind. Code § 35-42-4-3(a). Clem’s offenses were committed prior to the effective date of substantial revisions 

to Indiana’s criminal statutes. We refer throughout to the statutory provisions applicable to Clem’s offenses.

2

I.C. § 35-50-2-8.
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[5] Clem had a long history of alcohol abuse. During much of the time he lived 

with J.A. and the children through June 2011, Clem was unemployed and 

stayed home while J.A. worked. During the day, Clem would routinely 

consume alcohol to the point of intoxication. Alcohol consumption caused 

Clem to become angry, and Clem would routinely become verbally and 

physically aggressive toward A.A.

[6] During May and June of 2011, as the weather became hot, Clem would instruct 

A.A. not to wear clothing except for underwear and a bra. A.A. complied 

because she was afraid of Clem harming her. On several occasions, Clem had 

A.A. lie down in bed with him. He would then put his hands in her underwear 

and penetrate her genitalia with his finger.

[7] At some point in June 2011, Clem and J.A. had a disagreement, and Clem left 

the home. Around this time, A.A. left the home to live with her grandmother, 

where she remained after J.A. was arrested and incarcerated.

[8] In July 2014, C.G., A.A.’s aunt, had come to visit some of A.A.’s relatives. 

Based upon a conversation she had with A.C., C.G. asked A.A. questions that 

resulted in C.G. calling police. A police investigation ensued, and a warrant 

was issued for Clem’s arrest.

[9] On March 27, 2015, the State charged Clem with two counts of Child 

Molesting, as Class A felonies. On February 8, 2016, the State alleged Clem to 

be a habitual offender. A bifurcated jury trial was conducted from February 22 

to February 24, 2016, at the conclusion of which the jury found Clem guilty as 
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charged of the two counts of Child Molesting. A separate trial on the habitual 

offender allegation was conducted, at the conclusion of which the jury found 

Clem to be a habitual offender.

[10] On April 1, 2016, a sentencing hearing was conducted. During the hearing, the 

trial court entered judgments of conviction against Clem and adjudicated him a 

habitual offender. At the close of the hearing, the court sentenced Clem to forty 

five years imprisonment for each of the two counts of Child Molesting, to be 

served concurrently, and with five years suspended to probation. The court 

ordered the sentence enhanced by thirty years as a result of the habitual 

offender adjudication.

[11] This appeal ensued.

Discussion and Decision

[12] On appeal, Clem challenges only the trial court’s sentencing decision, arguing 

that the trial court abused its discretion “when it failed to properly balance and 

identify mitigating and aggravating factors.” (Appellant’s Br. at 9.)

[13] The Indiana Supreme Court’s decision in Anglemyer v. State established the 

process by which our state’s appellate courts review sentencing challenges:

1. The trial court must enter a statement including reasonably 

detailed reasons or circumstances for imposing a particular 

sentence.
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2. The reasons given, and the omission of reasons arguably 

supported by the record, are reviewable on appeal for abuse of 

discretion.

3. The relative weight or value assignable to reasons properly 

found or those which should have been found is not subject to 

review for abuse.

4. Appellate review of the merits of a sentence may be sought on 

the grounds outlined in Appellate Rule 7(B).

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 

218. In light of the Anglemyer Court’s holding, we do not address the portion of 

Clem’s argument that challenges the trial court’s weighing of sentencing 

factors.3

[14] Clem’s remaining issue on appeal challenges the trial court’s finding of 

aggravating and mitigating factors. “So long as the sentence is within the 

statutory range, it is subject to review only for abuse of discretion.” Id. A trial 

court abuses its discretion if its sentencing 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 

 

3 We note here that Clem’s brief relies in part on Patterson v. State, 846 N.E.2d 723 (Ind. Ct. App. 2006), 

which sets forth the “manifest abuse of discretion” standard for reviewing the weighing of sentencing factors. 

We remind counsel that Anglemyer’s standards for appellate review are now nearly a decade old. The prior 

standard does not apply here, and should not have been used. See Marcus v. State, 27 N.E.3d 1134, 1135-36 

(Ind. Ct. App. 2015) (striking an appellate brief when counsel used pre-Anglemyer standards after repeated 

admonition not to do so); also In re Schlesinger, 53 N.E.3d 417-18 (Ind. 2016) (imposing attorney discipline for 

repeated use of pre-Anglemyer standards after multiple warnings from this Court).
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defendant, the trial court must enter “a sentencing statement that includes a 

reasonably detailed recitation of its reasons for imposing a particular sentence.” 

Id. at 491. When a defendant argues on appeal that the trial court failed to 

identify or find a mitigating factor, the defendant must establish that the 

mitigating evidence is both significant and clearly supported by the record. Id. 

at 493. However, the trial court is not obligated to explain why it did not find a 

particular circumstance to be significantly mitigating. Sherwood v. State, 749 

N.E.2d 36, 38 (Ind. 2001). Even when a trial court has abused its sentencing 

discretion, however, we will remand “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.” Anglemyer, 868 N.E.2d at 491.

[15] Clem contends that the trial court abused its discretion when it rejected as a 

mitigating factor at sentencing his long history of substance abuse. A review of 

Clem’s criminal history reveals that he has multiple convictions directly related 

to his history of substance abuse, including a conviction for possession of 

marijuana and multiple convictions for public intoxication and operating a 

vehicle while intoxicated. As in Hape v. State, upon which Clem relies, Clem 

“misses the point” of the trial court’s decision not to find his history of 

substance abuse as a mitigating circumstance at sentencing. 903 N.E.2d 977, 

1002 (Ind. Ct. App. 2009). Like Hape, Clem “has been involved with the 

criminal justice system ... and a number of his convictions and charges stem 

from substance abuse or possession.” Id. And while he provided evidence that 

he had previously engaged in rehabilitative efforts, he apparently failed benefit 
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from those rehabilitation resources and admitted during the presentencing 

investigation that he has an alcohol problem and used marijuana regularly until 

2014. While a history of substance abuse can be a mitigating factor, the trial 

court was within its discretion in this case to find that Clem’s substance abuse 

history was not a mitigating factor at sentencing.

[16] We address sua sponte, however, the use of the habitual offender enhancement 

in the trial court’s sentencing order. “[W]hen defendants are convicted of 

multiple offenses and found to be habitual offenders, trial courts must impose 

the resulting penalty enhancement upon only one of the convictions and must 

specify the conviction to be so enhanced.” McIntire v. State, 717 N.E.2d 96, 102 

(Ind. 1999). If the trial court does not do so, we must remand to correct the 

sentence as it regards the habitual offender status. Id. Because it is not readily 

apparent to which of the two convictions for Child Molesting the habitual 

offender enhancement should be attached, we remand this case to the trial court 

for the sole purpose of correcting the sentencing order.

Conclusion

[17] The trial court did not abuse its sentencing discretion when it did not find 

Clem’s substance abuse to be a mitigating factor. But because the trial court did 

not identify which of the two convictions for Child Molesting was to be 

enhanced by the habitual offender adjudication, we remand with instructions to 

correct that facet of the sentencing order
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[18] Remanded.

Riley, J., and Barnes, J., concur.