MEMORANDUM DECISION
[1] Patrick James Comiskey, Jr., appeals the thirty-two-year sentence imposed following his two convictions of Level 3 felony child molesting.
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Comiskey argues the trial court abused its discretion by not identifying his lack of criminal history as a mitigator and his thirty-two-year sentence is inappropriate for his offense and character. We affirm.
Facts and Procedural History
[2] On October 19, 2020, twenty-two-year-old Comiskey lived in a house in Gary with five other adults and eleven children. Two of the children were seven-year-old A.B. and her twelve-year-old brother B.B., who that day were in the basement of the house watching a movie. Comiskey came to the basement and began playing with A.B. by tossing her onto a bed and tickling her. As they wrestled, the blanket that had been covering them fell off, and B.B. saw that Comiskeys hand was down A.B.’s pants. B.B. hit Comiskey on the head with a metal water bottle. A.B. ran upstairs to the bathroom, where she cried, and Comiskey ran out of the house. B.B. immediately told his mother, who called the police. When police arrived, A.B. reported that Comiskey had started touching her two weeks earlier. Police arrested Comiskey on October 20, 2020.
[3] On October 21, 2020, the State filed an Information that alleged Comiskey committed four counts of child molesting – one Level 1 felony,
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one Level 3 felony, and two Level 4 felonies
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– for acts committed against A.B. Additional investigation revealed Comiskey had also been molesting another seven-year-old girl living in the house, F.M., so on February 24, 2023, the State filed for leave the amend the Information to add three counts of child molesting – one Level 1 felony, one Level 3 felony, and one Level 4 felony – for acts committed against F.M.
[4] The parties filed a “Stipulated Plea and Agreement” that provided Comiskey would plead guilty to the two Level 3 felony charges, the State would dismiss the other five charges, the trial court would determine the length of each sentence, and the sentences would be served consecutively. (Id. at 96.) The parties also submitted a “Stipulated Factual Basis” in which Comiskey admitted molesting A.B. “on multiple occasions,” penetrating F.M.’s vagina with his penis “in her bedroom and in the bathroom,” and performing these acts while knowing he was HIV positive, knowing the girls ages, and knowing both girls called him “Uncle PJ.” (Id. at 99.) The trial court accepted the plea agreement and ordered preparation of a pre-sentence investigation report (hereinafter “PSI”).
[5] Following a sentencing hearing, the trial court found a mitigator in the fact that Comiskey “admitted his guilt by way of plea agreement, thus saving the court and tax payers of this county the time and expense of a trial.” (Id. at 126.) The court also found the following aggravators:
1. The harm, injury, loss or damage suffered by the victim of the offense was:
a. Significant; and
b. Greater than the elements necessary to prove the commission of the offense.
2. The victim of the offense was less than Twelve (12) years of age at the time the defendant committed the offense.
3. The defendant was in the position of having care, custody, or control of the victim of the offense.
4. The Court finds the nature and circumstances of the crime to be [a] significant aggravating factor in that: it is gruesome in the execution, heinous overall and shocks the conscious [sic] of any reasonable person. Further the defendant knew of his HIV status, and took advantage of their inocense [sic] in their home, to which they should have found safety and the act was repeated until discovered by another child.
(Id. at 127.) The court imposed sixteen-year sentences for each of Comiskeys crimes, with two-and-a-half years of each sentence suspended to sex offender probation. Thus, Comiskeys aggregate sentence was thirty-two years, with five years suspended to sex offender probation.
Discussion and Decision
1. Finding of Mitigators
[6] Comiskey first argues the trial court abused its discretion when it disregarded his lack of criminal history as a mitigating factor. Sentencing decisions “ ‘rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.’ ” McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on rehg 875 N.E.2d 218 (Ind. 2007)). An abuse of discretion occurs if the trial courts 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.” Lewis v. State, 31 N.E.3d 539, 541-42 (Ind. Ct. App. 2015).
[7] When a trial court imposes a felony sentence, it is required to issue a sentencing statement “that includes a reasonably detailed recitation of the trial courts reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-85 (Ind. 2007), clarified on rehg on other grounds, 875 N.E.2d 218 (Ind. 2007). If the court finds aggravating or mitigating circumstances, “the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating.” Id. at 490. We review “the courts finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors.” Baumholser v. State, 62 N.E.3d 411, 416-17 (Ind. Ct. App. 2016) (citing Anglemyer, 868 N.E.2d at 490-91), trans. denied.
[8] When reviewing the aggravating and mitigating circumstances relied on by the trial court, we will remand only if “the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.” Id. The court “is neither obligated to accept the defendants arguments as to what constitutes a mitigating factor nor required to give the same weight to a proposed mitigating factor as does the defendant.” Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct. App. 2017). On appeal, the defendant must “establish that the mitigating evidence is both significant and clearly supported by the record.” Id.
[9] Comiskey asserts the trial court erred by failing to list his lack of criminal history as a mitigating factor. Comiskey notes the Indiana statute listing possible mitigating circumstances lists “the person has no history of delinquency or criminal activity” as a possible mitigator. See Ind. Code § 35-38-1-7.1(b)(6).
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He also notes the PSI “unambiguously sets forth the fact that Comiskey has zero previous interactions with law enforcement, whether as a juvenile or an adult.” (Br. of Appellant at 8.) Comiskey then asserts the “record is clear as to the mitigating significance of Comiskeys lack of criminal history[.]” (Id.) We, however, disagree.
[10] Two decades ago, we held a trial court did not abuse its discretion by failing to recognize a defendants lack of criminal history as a mitigator when the “evidence of [defendants] substance abuse and sexual relationship with a fifteen-year-old boy ․ led the trial court to consider her character ‘questionable,’ and demonstrated [defendant] was leading a less than law-abiding life.” Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004). Similarly, Comiskeys factual stipulation indicates he molested both A.B. and F.M. on more than the one occasion for which he was convicted. A.B. reported the molestation had been happening for two weeks, but the stipulation includes a window of two and a half months, and the factual stipulation regarding F.M. includes a window over thirteen months long. Because Comiskey stipulated that other criminal behavior had been happening, we cannot say the trial court abused its discretion by refusing to find significant mitigation in his lack of formal criminal history. See id.
[11] Moreover, even if the court had abused its discretion by failing to mention Comiskeys lack of criminal history as a mitigator, any error would be harmless. Harmless error is “an error that does not affect the substantial rights of a party.” Rosales v. State, 3 N.E.3d 1014, 1019 (Ind. Ct. App. 2014) (quoting Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002)). Here, the trial court expressly noted the “significant aggravating factor” of the nature and circumstances of Comiskeys repeated molestation of these two seven-year-old girls in their own home by a man they called Uncle PJ, who risked exposing them to HIV. Given the courts use of descriptors such as “gruesome” and “heinous” we doubt the court would have imposed less than the maximum sentence if it had mentioned Comiskeys lack of criminal history as a minor mitigator. Therefore, any possible error in failing to mention it was harmless.
2. Inappropriate Sentence
[12] Comiskey next argues his sentence is inappropriate. Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence “if, after due consideration of the trial courts decision, [we] find that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Our determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Our review is deferential to the trial courts decision, and our goal is to determine whether the appellants sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. The appellant bears the burden of demonstrating his sentence [is] inappropriate.
George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020) (internal citations omitted), trans. denied. Our review is “holistic” and takes into consideration “the whole picture before us.” Lane v. State, 2024 WL 1924947, ––– N.E.3d ––––, *6 (Ind., May 2, 2024). Appellants need not prove their sentence is inappropriate for both their character and offense, but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id.
[13] “When considering the nature of the offense, we first look to the advisory sentence for the crime.” McHenry v. State, 152 N.E.3d 41, 46 (Ind. Ct. App. 2020). When a sentence deviates from the advisory sentence, “we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence.” Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). When convicted of a Level 3 felony, a person “shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.” Ind. Code § 35-50-2-5. Herein, the trial court imposed two sixteen-year sentences, which the plea agreement required be served consecutively.
[14] “Comiskey openly acknowledges the aggravating nature of the offense, given his position of trust, the repeated criminal activity in relation to [A.B.], and his commission of these offenses while knowingly being HIV positive.” (Br. of Appellant at 10.) Instead, he argues his sentence is inappropriate because his character “is not the ‘worst of the worst’[.]” (Id.) In support, Comiskey notes he has no criminal history, he pled guilty, and the trial court “found no aggravating factors about Comiskeys character.” (Id.) While Comiskey pled guilty and has no formal criminal history, we do not find ourselves “overcome by compelling evidence portraying in a positive light ․ the defendants character (such as substantial virtuous traits or persistent examples of good character).” Oberhansley v. State, 208 N.E.3d 1261, 1271 (Ind. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)). Comiskey repeatedly molested two seven-year-old girls who called him Uncle PJ while living in the same house with them. As the State notes, if another child – A.B.’s own brother – had not caught Comiskey with his hand in A.B.’s pants, there is nothing to suggest Comiskey would not have continued the molestations. His thirty-two-year sentence is not inappropriate. See, e.g., Lane, ––– N.E.3d at –––– (affirming a lengthy sentence as not inappropriate because it was “consistent with the aim of Indianas criminal-justice system to separate dangerous, violent offenders from the community to protect public safety”).
Conclusion
[15] In light of the facts and circumstances surrounding Comiskeys crimes, we find no abuse of discretion in the trial courts failure to list Comiskeys lack of criminal history as a mitigator. Nor do we see his sentence as inappropriate. Accordingly, we affirm the trial courts judgment.
[16] Affirmed.
FOOTNOTES
1
. Ind. Code § 35-42-4-3(a).
2
. Ind. Code § 35-42-4-3(a) & (a)(1).
3
. Ind. Code § 35-42-4-3(b).
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. The full text of that possible mitigator indicates the trial court may consider: “The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.” Ind. Code § 35-38-1-7.1(b)(6).
May, Judge.
Vaidik, J., and Kenworthy, J., concur.