COA declines to dismiss appeal, but affirms child molesting sentence

The Indiana Court of Appeals has affirmed a man’s child molesting sentence, declining the state’s request to dismiss his appeal while also finding that his consecutive sentences are not inappropriate.

In Nicholas D. McHenry v. State of Indiana, 19A-CR-2460, Nicholas McHenry was convicted of two counts of Level 4 felony child molesting. The Hancock Circuit Court sentenced McHenry to consecutive 12-year terms, for an aggregate sentence of 24 years behind bars.

“The State contends McHenry waived his ability to challenge his sentence pursuant to paragraph 15 of McHenry’s plea agreement,” Judge Melissa May wrote for the appellate panel. “While the plea agreement stated a defendant has a right to appeal his sentence following an open plea, the State argues McHenry did not enter an open plea. The State dismissed the Level 1 felony count, and the plea agreement defined ‘open plea’ as ‘an agreement which leaves the sentence entirely to the Judge’s discretion, without any limitation or the dismissal of any charges.’

“However, the State’s argument in the case at bar is the same argument that we considered and rejected in Williams v. State, 51 N.E.3d 1205 (Ind. Ct. App. 2016),” the panel continued, declining to dismiss McHenry’s appeal.

“Like the plea agreement in Williams, McHenry’s plea agreement notified him that a defendant has a right to appeal the sentence imposed after entering an open plea and erroneously characterized McHenry’s plea as not an open plea,” May wrote. “The plea agreement left McHenry’s sentence to the trial court’s discretion, and the trial court was only limited in the sentence it could impose by the statute outlining the maximum and minimum penalties for a Level 4 felony. Further, like the trial court in Williams, the trial court herein advised McHenry of his right to appeal at the end of McHenry’s sentencing hearing, and the State did not object.”

The appellate court additionally rejected McHenry’s argument that his aggregate sentence is inappropriate given the nature of his offense and his character, “particularly in light of McHenry’s continuing acts of criminal sexual behavior.”

It therefore affirmed his sentence.

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