Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be r egarded 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 : ATTORNEYS FOR APPELLEE : KRISTIN A. MULHOLLAND GREGORY F. ZOELLER Appellate Public Defender Attorney General of Indiana Crown Point, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana


## IN THE COU RT OF APPEALS OF INDIANA

DERRICK A. HICKS, ) ) Appellant

- Defendant, ) ) vs. ) No. 45A03

- 1307

- CR

- 265 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell , Judge Cause No. 45G03

- 1206

- FA

- 17
April 29 , 2014 MEMORANDUM DECISION
- NOT FOR PUBLICATION MAY, Judge2

Derrick A. Hicks appeals his sentence of seventy years after his plea of guilty to Class A felony child molesting, 1 Class B felony incest, 2 Class B felony sexual misconduct with a

m inor, 3 and the finding that he is a n habitual offender. 4 Hicks alleges his sentence is inappropriate in light of his character and the nature of his offense s . We affirm

.

FACTS AND PROCEDURAL HISTORY From December 10, 2010 , to April 7, 2012, Derrick Hic ks resided in East Chicago with his d aughter, M.W. Throughout this time, Hicks engaged in sexual intercourse with M.W. multiple times, and M.W. gave birth to Hicks ’ child. At the beginning of this period, Hicks was over the age of twenty

- one and M.W. was under four teen. Hicks was charged with Class A felony child molesting, Class B felony incest, Class B felony sexual misconduct with a minor, Class D felony intimidation, 5 Class D felony battery, 6 Class D felony obstruction of justice, 7 and was alleged to be a n habitual offender

. On January 17, 2013, Hicks agreed to plead guilty to the counts of child molesting, incest, and sexual misconduct with a minor in ex change for the dismissal of the other charges. O n March 28, 2013, Hicks moved to withdraw his pl ea and he re quested a new public defender. The trial court denied the motion and Hicks again agreed to plead guilty

. After

1 Ind. Code § 35

- 42

- 4

- 3

. 2 Ind. Code § 35

- 46

- 1

- 3

. 3 Ind. Code § 35

- 42

- 4

- 9

. 4 Ind. Code § 35

- 50

- 2

- 8

. 5 Ind. Code § 35

- 45

- 2

- 1. 6 Ind. Code § 35

- 42

- 2

- 1. 7 Ind. Code § 35

- 44.1

- 2

- 2.3

making findings of mitigating and aggravating circumstances, 8 the court sentenced Hicks to thirty years for child molestation, ten years for incest, and ten years for sexual misconduct with a minor

. The incest sentence would be served consecutively to the child molestation
sentence , and the sexual misconduct with a minor sentence would be served concurrent ly with the sentence for ince st , for a sentence of forty years

. The court also found Hicks to be

a n habitual offender and enhanced his sentence by thirty years , for an aggregate sentence of seventy years

. DISCUSSION AND DECISION We may revise a sentence if “ after due consideration o f 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) (emphasis added). The appellant bears the burden of demonstrating the sent ence is inappropriate

. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006 ). W e do not give complete deference to the trial court, but we recognize “the unique perspective a trial court brings to its sentencing decisions” and give
due consideration to i ts decision. Williams v. State , 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (quoting Rutherford v. State , 866 N.E.2d 867, 873 (Ind. Ct. App. 2007) )

. In analyzing the “nature of the offense” prong of a Rule 7(B) analysis, the advisory
sentence is the startin g point that the legislature has determined to be appropriate for a given

8 The trial court found as a mitigating factor that Hicks did not have the benefit of a plea agreement. It found as aggravating factors that the “harm suffered by the victim of the offense was greater than the elements necessary to prove the commission of the crime; in that it lasted over an extended period of time and that a child was conceived out of those sexual encounters,” that Hicks had two prior felony convictions, and that Hicks was in a position of trust with the victim. ( App. at 51

. )4

crime. Anglemyer v. State , 868 N.E.2d 482, 494 , clarified on reh ’ g , 875 N.E.2d 218 (Ind. 2007)

. The advisory sentence for a Class A felony is thirty years with a range of twenty to fifty years. Ind. Code § 35

- 50

- 2

- 4

. T he advisory sentence for a Class B felony is ten years with a range of six to twenty years

. Ind. Code § 35

- 50

- 2

- 5. The sentence enhancement for

a n habitual offender finding is “ an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years.” Ind. Code § 35

- 50

- 2

- 8. Our analysis of the “nat ure of the offense” requires us to look at the extent and depravity of the offense rather than comparing the facts at hand to other cases

. Brown v. State , 760 N.E.2d 243, 247 (Ind. Ct. Ap p. 2002 ), trans. denied . Hicks was the victim’s
father . For severa l years, he sexually molested his daughter beginning at a time when she was under the age of fourteen , and she became pregnant with Hicks ’ child

. In light of the nature of the offense, Hicks’ sentence was not appropriate. T he trial court sentenced Hicks to t he advisory sentence for each count

-- thirty years for the Class A felony count, ten years for both Class B felony counts, and thirty years for the habitual offender finding attached to the Class A felony child molestation count. T he depravity and
exten t of the crime permit the sentence imposed. Cf. Brown , 760 N.E.2d at 247. In looking at the character of an offender, we consider the defendant’s age, criminal history, background, and remorse. James v. State , 868 N.E.2d 543, 548

- 49 (Ind. Ct. App. 2007)

. Hicks’ character does not require a reduction in his sentence. While we acknowledge5

Hicks’ testimony regarding his harsh treatment as a child, Hicks, in his forties, has numerous criminal convictions. Two are the felonies supporting the habitual offen der finding. 9 His most recent conviction is based on the sexual molestation of his daughter over the course of multiple years

. While Hicks argues his apology letter demonstrates remorse for his crime, it does not lessen the effects his actions ha d on his daughter . Hick s’ character does not support
f inding his sentence is inappropriate. Hicks has not demonstrated that his sentence is inappropriate based on his character and the nature of the offense. A ccordingly, we affirm. Affirmed.
VAIDI K, C.J., and RILEY, J., concur.

9 Hicks argues that, under Frye v. State , these felonies a re significantly old so as to not be given much weight. Frye v. State , 837 N.E.2d 1012 (Ind. 2005) ( reh ’ g. denied ) . However, Frye is distinguishable. In Frye , our Indiana Supreme Court reduced Frye’s burglary sentence from forty years to twenty

- five. Id. at 1015. The trial court calculated Frye’s forty year sentence based on ten years for the burglary offense, five years for an enhancement, and twenty

- five years because Frye was a n habitual offender. Id. at 1014. There the trial court increased the habitual offender enhancement over the presumptive sentence, which the Supreme Court found inappropriate in light of the nature of the offense or Frye’s character. Id. Here, however, the trial court did not exceed the presumptive sentence for the habitual offender findin g, but rather followed the language of the statute which provid e s an “ additional fixed term that is not less than the presumptive sent ence for the underlying offense.” Ind. Code § 35

- 50

- 2

- 8(h)

. As the trial court followed the language of the statute, we find no error.