THOMAS v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Niles C. Thomas challenges his five-year sentence for Level 5 felony failure to register as a sex or violent offender, arguing it is inappropriate. We affirm.

Facts and Procedural History

[2] Thomas was convicted of Class A felony child molesting in 2003 and thus is required to register as a sex offender for life. In both November 2016 and January 2022, Thomas was convicted of Level 6 felony failure to register as a sex or violent offender.

[3] Following the January 2022 conviction, Thomas registered at his stepfather's address. But by October of that year, Thomas was no longer living there and failed to register a new address. The State charged Thomas with two counts of Level 5 felony failure to register as a sex or violent offender: one for failing to report a change of address within 72 hours, and another for failing to reside at his registered address. Thomas pled open to the first count, and the second count was later dismissed.

[4] At sentencing, Thomas explained that he wasn't trying to “hide from anybody” or “get away with something”; rather, he struggled to maintain consistent housing because of his poor financial status. Tr. p. 15. The trial court found as aggravators that Thomas has a criminal history, including two prior convictions for failure to register, and that he has previously violated probation. The court found as mitigators that Thomas pled open and showed remorse, although it “d[id] not consider remorse to be a great mitigator.” Appellant's App. Vol. II p. 59. Finding the aggravators to outweigh the mitigators, the court sentenced Thomas to five years, with four years executed and one year suspended to probation.

[5] Thomas now appeals.

Discussion and Decision

[6] Thomas contends his five-year sentence is inappropriate and asks us to revise it under Indiana Appellate Rule 7(B), which provides that an appellate 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.” The appellate court's role under Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (quotation omitted). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[7] The sentencing range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). Here, the trial court sentenced Thomas to five years, with four years executed and one year suspended to probation.

[8] Even accepting that there is nothing particularly egregious about Thomas's offense, his criminal history supports an above-advisory sentence. He has five felony and nine misdemeanor convictions, including two prior convictions for failure to register as a sex or violent offender. And he was charged in this case within ten months of his second failure-to-register conviction. Additionally, Thomas violated his probation in the 2003 child-molesting case. Thomas highlights that he expressed remorse, but the trial court observed him directly and “d[id] not consider remorse to be a great mitigator.” Thomas has failed to persuade us that his partially suspended sentence is inappropriate.

[9] Affirmed.

Vaidik, Judge.

Altice, C.J., and Crone, J., concur.