Court of Appeals of Indiana | Memorandum Decision 23A01-1701-CR-202 | July 3, 2017 Page 1 of 10

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

Bryan K. Coulter

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael L. Zackmire,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 3, 2017

Court of Appeals Case No.

23A01-1701-CR-202

Appeal from the Fountain Circuit 

Court

The Honorable Stephanie S. 

Campbell, Judge

Trial Court Cause No.

23C01-1509-F3-407

Altice, Judge.

Case Summary
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[1] Michael Zackmire pled guilty to two counts of Level 3 felony rape. The trial 

court sentenced Zackmire to nine years executed for each conviction and 

ordered the sentences to be served consecutively, for an aggregate sentence of 

eighteen years. Zackmire appeals, challenging the sentence imposed in two 

respects: 1) Zackmire contends that the trial court abused its sentencing 

discretion and 2) he claims that his sentence is inappropriate.

[2] We affirm.

Facts & Procedural History

[3] On September 15, 2015, the State charged Zackmire with four counts of Level 3 

felony rape. The trial court held a combined plea and sentencing hearing on 

December 22, 2016. Pursuant to the terms of a plea agreement, Zackmire 

agreed to plead guilty to two counts of Level 3 felony rape in exchange for 

dismissal of the remaining charges. The plea agreement also provided that 

sentencing would be left to the trial court’s discretion. At the guilty plea 

hearing, Zackmire agreed with the factual basis for his convictions—that 

between the dates of August 1, 2015, and September 8, 2015, he had sexual 

intercourse and other sexual contact with J.S., a twenty-four-year-old female for 

whom Zackmire was co-guardian and who was mentally incapable of 
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consenting to sexual intercourse or other sexual contact.1 The trial court 

accepted Zackmire’s guilty plea.

[4] During the sentencing portion of the hearing, the trial court noted that it 

considered the pre-sentence investigation report (PSI) and arguments of 

counsel. The PSI indicated that Zackmire was fifty-two years old when he 

committed the instant offenses. J.S. was Zackmire’s niece2 and Zackmire had 

guardianship over her for approximately a year and a half before he raped her. 

The PSI also indicated that Zackmire had no prior criminal history. In his 

statement of the offense for purposes of the PSI, Zackmire claimed that at the 

time he committed these offenses, he was under a lot of stress, drinking heavily, 

and having marital problems. 

[5] In pronouncing the sentence, the trial court made the following sentencing 

statement:

The Court finds as an aggravating circumstance that you were in 

a position of trust over this young lady. That is considered 

aggravating, not because it’s just simply a position of trust over 

this young lady, you were her court appointed guardian to 

protect her and you took advantage. You manipulated that 

position as her caregiver for your own personal satisfaction. You 

were in a position of care, custody and control over this young 

lady. This factor is considered aggravating because the victim 

had been placed in the home that you shared with the victim’s 

 

1 The victim’s mental age is reportedly twelve years of age.

2 Zackmire was adopted as an infant and thus his niece is not a blood relative.
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co-guardian and you failed to protect her while the co-guardian 

was at work and away from the home. The nature of the crime is 

considered as aggravating because these events were not isolated. 

You demonstrated a pattern of abusive behavior over a several 

week period. The victim was a virgin prior to your acts and you 

took from her the beauty of what a loving, physical relationship 

could be. You caused her physical pain. You have created in 

her a general lack of trust and fear of men. The Court finds as a 

mitigating factor your remorse. Factor is considered mitigating 

because you have apologized. You have acknowledge [sic] your 

guilt for your actions and did not put the victim through the pain 

of testifying at trial. Your lack or prior criminal history is 

considered a mitigating factor. The fact that the crime was a 

result of circumstances unlikely to reoccur is a mitigating factor. 

That it may create an undue hardship on you is considered a 

mitigating factor. But the Court gets to balance mitigators 

against aggravators and in this case the Court does give weight to 

your expression of remorse and lack of prior criminal history, 

and it gives substantial weight to the aggravators.

Transcript of 12-22-16 at 17-19. The trial court then sentenced Zackmire to the 

advisory sentence of nine years3 on each count and ordered the sentences to be 

served consecutively, for an aggregate sentence of eighteen years executed. The 

trial court then explained its reasons for ordering consecutive sentences:

[T]he offenses were committed over a period of time. There were 

days between your offenses which allowed you time to consider 

the crimes you were committing and the impact those offenses 

could have on your victim. You stole from your victim her right 

 

3

See Ind. Code § 35-50-2-5 (“[a] person who commits a Level 3 felony (for a crime committed after June 30, 

2014) shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory 

sentence being nine (9) years”).
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to determine who and when she would surrender her virginity to. 

You caused pain and physical injury to the victim. You took 

advantage of her [sic] position of trust and care of the victim. 

Your victim is disabled as defined by Indiana law and you knew 

what her disability was. 

Id. at 19. Zackmire now appeals.

Discussion & Decision

1. Abuse of Discretion

[6] Sentencing decisions rest within the sound discretion of the trial court. 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 

218. “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. at 490 (quoting 

K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its 

sentencing discretion in a number of ways, including: (1) failing to enter a 

sentencing statement at all; (2) entering a sentencing statement that includes 

aggravating and mitigating factors that are unsupported by the record; (3) 

entering a sentencing statement that omits reasons that are clearly supported by 

the record; or (4) entering a sentencing statement that includes reasons that are 

improper as a matter of law. Id. at 490-91. Because trial courts are no longer 

obligated to weigh aggravating and mitigating factors when imposing a 

sentence, a trial court cannot be said to have abused its discretion in failing to 

properly weigh such factors. Id. at 491.
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[7] Zackmire first argues that the trial court abused its sentencing discretion in 

finding as separate aggravating factors that he was in a position of trust with the 

victim and that he was in a position of care, custody, and control. Zackmire 

claims that these aggravators are essentially the same and should have been 

considered as one aggravator, not two.4 

[8] Zackmire does not argue that the trial court’s considerations were improper, but 

rather, seems to suggest that the balancing and weighing of aggravators and 

mitigators is a product of comparing enumerated lists of aggravators and 

mitigators with the greatest weight given to the longest list. This is simply not 

the case. Here, the trial court carefully and thoughtfully discussed the 

aggravating and mitigating circumstances and articulated the weight and 

balancing of such factors in deciding what sentence to impose. We find no 

abuse of discretion in the trial court’s consideration of the fact that Zackmire 

was in a position of trust as a court appointed co-guardian of J.S. and that he 

also was in a position of care, custody, and control when he was solely 

responsible for J.S. while the co-guardian was at work. 

 

4

In its written sentencing order, the trial court stated:

(1) [Zackmire] was in a position of trust. This factor is considered as aggravating in that the 

victim was under his care as her court appointed guardian. [Zackmire] manipulated his position 

as her caregiver for his own personal satisfaction;

(2) [Zackmire] was in a position of care, custody and control. This factor is considered as 

aggravating because the victim had been placed in the home he shared with the victim’s coguardian and he failed to protect her while the co-guardian was at work.

Appellant’s Appendix Vol. 3 at 46-47.
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[9] Zackmire argues that the trial court abused its discretion in finding that the 

victim had been a virgin because such finding was “not fully supported by the 

record.” Appellant’s Brief at 9. As Zackmire notes, however, such fact is noted 

in the probable cause affidavit that was included in the pre-sentence 

investigation report and Zackmire did not object to inclusion of such 

information therein. There is thus evidence in the record to support the trial 

court’s finding in this regard.

[10] Zackmire also argues that the trial court abused its discretion in ordering the 

sentences to run consecutively. As set out above, the trial court explained the 

reasoning behind its decision to impose consecutive sentences, specifically 

noting that the offenses were committed over a period of time and that 

Zackmire had time to consider the crimes he was committing and the impact 

they had on J.S. Zackmire claims that imposition of consecutive sentences 

requires more than this “single statement.” Appellant’s Brief at 10.

[11] We disagree with Zackmire. Here, the trial court identified several aggravating 

factors, including the repeated nature of the offenses, that the victim suffered 

physical and emotional pain, that Zackmire abused a position of trust, and also 

that the victim was disabled. The trial court articulated its balancing of these 

factors with the identified mitigators. The trial court clearly identified several 

aggravating factors and provided more than a single statement in explaining its 

decision to impose consecutive sentences. The trial court did not abuse its 

discretion in ordering Zackmire’s advisory sentences to be served consecutively. 
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2. Appropriateness

Although a trial court may have acted within its lawful discretion in imposing a 

sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize 

independent appellate review and revision of a sentence imposed by the trial 

court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer, 

868 N.E.2d at 491). This appellate authority is implemented through Indiana 

Appellate Rule 7(B), which provides that a court “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.” Anglemyer, 868 N.E.2d at 491. 

Nevertheless, “we must and should exercise deference to a trial court’s 

sentencing decision, both because Rule 7(B) requires us to give ‘due 

consideration’ to that decision and because we understand and recognize the 

unique perspective a trial court brings to its sentencing decisions.” Stewart v. 

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the 

burden of persuading us that his sentence is inappropriate. Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006).

[12] Here, Zackmire pled guilty and received the advisory sentence of nine years for 

both offenses when he could have received up to sixteen years for each offense. 

The trial court ordered the sentences to be served consecutively. The starting 

point that the Legislature has selected as an appropriate sentence for a crime is 

the advisory sentence. Anglemyer, 868 N.E.2d at 494. Therefore, when the trial 

court imposes the advisory sentence, the defendant bears a heavy burden in 
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persuading this court that the sentence is inappropriate. McKinney v. State, 873 

N.E.2d 630, 647 (Ind. Ct. App. 2007), trans. denied. 

[13] With regard to the character of the offender, Zackmire asserts that he has 

cooperated with authorities since the beginning of their investigation, that he 

has no criminal history, that he is remorseful, that his overall risk assessment 

places him in the low risk category to reoffend, and that he accepted 

responsibility by pleading guilty thereby saving his victim the pain of testifying 

at trial. He also points out that he owns a successful trucking company and that 

he voluntarily sought out counseling prior to sentencing. As did the trial court, 

we accept these factors as having some mitigating weight, but not as redeeming 

character traits in light of the nature of the offense.

[14] The nature of the offense justifies the sentence imposed. Zackmire raped his 

mentally disabled niece, over whom he had a guardianship, approximately 

seven times in a period of a little more than a month. Zackmire admitted that 

he knew J.S. could not make adult decisions and that she had the mental 

capacity of a twelve-year-old. Moreover, after he committed his offenses, he 

tried to cover them up by warning J.S. not to tell anyone and making her 

shower after he raped her. In her victim impact statement, J.S. wrote that she 

cannot trust men and has been depressed. The nature of the offenses supports 

the trial court’s imposition of consecutive, advisory sentences for an aggregate 

sentence of eighteen years.

[15] Judgment affirmed.
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[16] Kirsch, J. and Mathias, J., concur.