Charles W. South, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] After pleading guilty to Level 4 felony sexual misconduct with a minor, Charles W. South, Jr., was sentenced to six years in the Indiana Department of Correction (DOC). He now appeals his sentence, arguing it is inappropriate in light of the nature of the offense and his character. We affirm.

Facts and Procedural History

[2] In June 2024, the State charged Smith with Level 1 felony child molesting and Level 3 felony child molesting. See Cause No. 33C01-2406-F1-000005.¹ The victim in that case was thirteen-year-old A.P., South's daughter's best friend. That same month, a protective order was issued preventing South from contacting or communicating with A.P.

[3] While on bond in Cause 000005, South continued to communicate with A.P. On March 17, 2025, law enforcement officers tracked A.P. to a garage in New Castle, where they found her and South together. In the garage, officers found two used condoms, and later testing revealed the presence of both South's and A.P.’s DNA on the condoms.

[4] The State charged South in the instant case with Level 4 felony sexual misconduct with a minor, Class A misdemeanor false informing, and Class A misdemeanor invasion of privacy. Pursuant to a plea agreement, South pled guilty to the Level 4 felony, and the State dismissed the remaining charges. The plea agreement also provided that South's executed sentence would not exceed six years. A sentencing hearing was held in October 2025.

[5] At sentencing, South stated he had “remorse” for what he “let happen[.]” Tr. Vol. II p. 37. However, the court declined to find this as a mitigator factor, stating South “didn't let it happen, he caused it to happen. She's a child.” Id. at 44. The court ultimately found no mitigating factors but found the following aggravators: (1) South's criminal history, consisting of 1986 convictions for felony theft and misdemeanor criminal mischief; (2) that he “reoffend[ed] with the same victim” while out on bond; and (3) that he violated a protective order. Id. The trial court sentenced South to six years executed in the DOC. South now appeals.

Discussion and Decision

[6] South argues his six-year sentence in the DOC is inappropriate. Indiana Appellate Rule 7(B) permits an appellate court to 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.” We give “considerable deference” to the trial court's sentencing decision and attempt only to “leaven the outliers” rather than achieve the “perceived ‘correct’ result” in every case. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222, 1225 (Ind. 2008)).

Indiana Appellate Rule 7(B) is a rare avenue for appellate relief that is reserved for exceptional cases. Even with Rule 7(B), sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference. Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character). Absent such a sufficiently compelling evidentiary basis, we will not override the decision of ․ the trial court.

Sorenson v. State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019) (citations, quotations, and brackets omitted), trans. denied.

[7] A person convicted of a Level 4 felony shall be sentenced to a fixed term of between two and twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2014). Here, the trial court imposed an advisory sentence of six years executed in the DOC—the maximum allowed under the plea agreement. A defendant's “ ‘conscious choice to enter a plea agreement that limits the trial court's discretion to a sentence less than the statutory maximum should usually be understood as strong and persuasive evidence of sentence reasonableness and appropriateness’ and appellate relief should be granted ‘only in the most rare, exceptional cases.’ ” Merriweather v. State, 151 N.E.3d 1281, 1286 n.2 (Ind. Ct. App. 2020) (quoting Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006) (Dickson, J., concurring)). Furthermore, “[a] defendant who receives an advisory sentence has a particularly heavy burden to prove it inappropriate under Appellate Rule 7(B).” Kincaid v. State, 171 N.E.3d 1036, 1042 (Ind. Ct. App. 2021), trans. denied.

[8] As to the nature of the offense, South argues nothing about it goes “beyond the inherent depravity of the act.” Appellant's Br. p. 7. We disagree. South was charged with multiple counts of child molesting, bonded out, and then reoffended with the same victim, who was a friend of his daughter's. And in doing so he violated a protective order. Such actions would typically warrant an enhanced or even maximum sentence, let alone the advisory.

[9] These actions also reflect poorly on South's character. And while South argues he expressed remorse and accepted responsibility, we note the trial court, who is in the best position to identify such mitigators, declined to find as such. Nor would we give either significant weight, given the highly beneficial plea agreement and South's attempts to minimize his culpability by stating he “let it happen[.]” Tr. Vol. II p. 37. See Anglemeyer v. State, 875 N.E.2d 218, 221 (Ind. 2007) (rejecting defendant's claims that he accepted responsibility and showed remorse where his plea agreement was “more likely the result of pragmatism” and he attempted to minimize his culpability) (quotation omitted).

[10] Given this, we cannot say South's sentence is inappropriate.

[11] Affirmed.

FOOTNOTES

1.   Smith later pled guilty to the Level 3 felony and was sentenced to sixteen years in the DOC, to be served consecutively to the instant offense. See Cause No. 33C01-2406-F1-000005.

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.