OPINION
Gregory Comer appeals his sentences for one count of child molestation as a class B felony 1 and one count of child *724 molestation as a class C felony. 2 Comer raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion in sentencing Comer; and
II. Whether Comer's sentence is inappropriate.
We reverse and remand for resentencing. 3
The relevant facts follow. In January 2000, Comer married Angela Comer. Angela had two daughters prior to the marriage. The older of Angela's daughters, TH., was born on March 27, 1991. Two children were born to the marriage. Between Thanksgiving and Christmas of 2003, Comer "inappropriately" fondled and touched TH. on her breasts and vagina and performed oral sex on TH. Transcript at 9. Comer also showed TH. pornographic videos and touched himself in front of her. Comer told Angela that he had shown the pornographic videotapes to T.H.
TH. told a youth leader about the molestation, and the authorities were called. Detective Lisa Himelick with the Grant County Sheriff's Department asked Angela about the allegations, and Angela told Detective Himelick that she did not know what to believe and that TH. had lied to her before. On the way to an interview at Child Protective Services, Angela told TH. that she was concerned about the family's welfare if Comer got into trouble and "not to make a mountain out of a mole hill." Transcript at 17. Angela also told T.H. to tell them that "this was all just a big lie that we'll deal with it ourselves as a family." Appellant's Appendix at 20. The State charged Angela with child neglect and attempted obstruction of justice. T.H.'s relationship with Angela became strained, and TH. no longer has "a lot of trust" in Angela. Transcript at 25. TH. and her biological sister began living with their grandmother.
The State charged Comer with: (1) Count I, child molesting as a class A felony; 4 (2) Count II, child molesting as a class C felony; (8) Count III, child molesting as a class C felony; and (4) Count IV, vicarious sexual gratification as a class D felony. 5 Comer pleaded guilty to a lesser included offense of child molesting as a class B felony and child molesting as a class C felony, and the State dismissed the remaining charges. The plea agreement left the sentence up to the discretion of the trial court.
On February 4, 2005, the trial court held a sentencing hearing. In the presentence investigation report, the probation officer recommended that the following be considered as an aggravating factor, "The victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age or older. The [victim] would have been eleven at the time of the erime." Appellant's Appendix at 47. At the sentencing hearing, Comer asked the trial court to consider the following mitigating factors: (1) Comer was cooperative with police; (2) Comer accepted responsibility for his actions by pleading guilty; (8) Comer has no criminal record; (4) Comer is likely to respond to probation; and (5) Comer apologized to the trial court and to TH. Comer's counsel agreed with the recommendation of the aggravator that TH. *725 was less than twelve years of age at the time of the offenses.
The trial court found the following aggravating circumstances: (1) "Defendant's victim was under the age 12 years at the time of commission of these offenses;" (2) "Defendant was in a position of trust with his victim since he was her stepfather;" and (8) "Defendant's acts has [sic] destroyed the family network and the victim's relationship with her mother which will probably never be restored." Id. at 60. The trial court found the following mitigating factors: (1) "Defendant has no prior criminal history;" and (2) "Defendant appears to be remorseful and has apologized to his victim." Id. The trial court sentenced Comer to fifteen years on the child molesting as a class B felony conviction with five years suspended and eight years on the child molesting as a class C felony conviction. The trial court ordered the sentences to be served concurrently.
I.
The first issue is whether the trial court abused its discretion in sentencing Comer. Sentencing decisions rest within the discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Smallwood ' v. State, TTB N.E.2d 259, 263 (Ind.2002). An abuse of discretion occurs if "the decision is clearly against the logic and effect of the facts and cireumstances." Pierce v. State
Our courts frequently hold that a single aggravating cireumstance may be sufficient to support the imposition of an enhanced sentence. 'Deane v. State, T59 N.E.2d 201, 205 (Ind.2001); see also Battles v. State,
A. Aggravators
The trial court found the following ag-gravators; (1) Comer's victim was under the age of twelve years at the time of the offenses; (2) Comer was in a position of trust with his victim because he was her stepfather; and (8) Comer's acts destroyed the family network and the victim's relationship with her mother which will probably never be restored. Comer concedes that the trial court properly found his position of trust with the victim as an aggravating factor. Comer argues that the trial court improperly found the remaining aggravating factors.
*726 Comer argues that the trial court improperly found that the victim's age was less than twelve years of age because the victim was at least eight months past her twelfth birthday at the time of the offenses. The State acknowledges that there is no evidence in the record that establishes that TH. was under the age of twelve at the time of the offenses. The charging information states that T.H. was "twelve (12) years of age," Appellant's Appendix at 7-9. At the probable cause hearing, Detective Himelick testified that TH.'s date of birth was March 27, 1991, which indicates that TH. was more than twelve years old at the time of the offenses. Further, the following exchange occurred at the guilty plea hearing:
BY THE COURT: And she was under the age of 12? Is that correct?
BY DEFENDANT: She was at the age of 12.
BY THE COURT: I'm sorry. I misread this. She was at the age of 127
BY DEFENDANT: Yes.
Transcript at 10. The only indication that TH. was less than twelve years old comes from the presentence investigation report, which recites:
The officer has found the following aggravating factors:
1. 1.0. 35-38-1-7(b)(5) The victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age or older. The {victim] would have been eleven at the time of the crime.
Appellant's Appendix at 47. The State concedes that the probation officer incorrectly listed the victim's age of less than twelve years as an aggravating factor.
The State argues that the use of this aggravating error is not reversible error because Comer invited it. The State directs us to the following comments of Comer's defense attorney during closing argument, "I agree with [the probation officer]'s finding of the aggravator that she was less than 12 years of age at the time, and I also agree with his finding of the mitigators."
6
Transcript at 338. Even assuming that Comer invited the error, we will nonetheless review the trial court's sentencing order because it is our duty to "correct sentencing errors, sua sponte, if necessary." Dickson v. State,
The charging information, testimony at the probable cause hearing, and testimony at the guilty plea hearing indicate that TH. was not less than twelve years old at the time of the offénses. Based on the record, we must conclude that the trial court abused its discretion by considering this factor. See, eg., Fugate v. State,
Further, a factor constituting a material element of an offense cannot be used as an aggravating circumstance.
7
McCann v. State,
Comer also argues that the trial court improperly relied on the impact on the victim's family as an aggravating factor. "[UInder normal cireumstances the impact upon family is not an aggravating cireumstance for purposes of sentencing." Bacher v. State,
We find Leffingwell v. State,
Here, at sentencing, the trial court held, "[It's clear ... to the Court that [Comer's] actions have completely destroyed this family network and destroyed the victim's relationship with her mother. I'm not sure that relationship is ever capable of being repaired." Transcript at 35. We
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cannot say that Comer's actions were responsible for the destruction of the victim's relationship with her mother. Angela's own actions resulted in Angela being charged with neglect and the destruction of the family unit beyond simply removing Comer from the family unit. Further, the trial court failed to explain how the defendant's actions had an impact of a destructive nature that is not normally associated with the commission of the offense of child molesting, or how this impact was foreseeable to Comer. Thus, the trial court abused its discretion by considering the impact on the family as an aggravating factor. See, eg., Leffingwell,
B. Mitigators
Comer argues that the trial court abused its discretion by failing to consider the following alleged mitigating factors: (1) he pleaded guilty; (@) he is likely to respond affirmatively to probation and is unlikely to reoffend; (8) his work history; and (4) imprisonment would result in undue hardship to his family. "The finding of mitigating factors is not mandatory and rests within the discretion of the trial court." O'Neill v. State,
We first consider Comer's proposed mitigator that he pleaded guilty. The trial court did not specifically identify. Comer's guilty plea as a mitigating factor. Indiana courts have recognized that a guilty plea is a significant mitigating circumstance in some cireumstances. Trueblood v. State,
For example, in Sensback, the defendant argued that her guilty plea showed "acceptance of responsibility." Id. at 1164. However, the State argued that she received her benefit due in that the State dropped the robbery and auto theft counts in exchange for her guilty plea to the felony murder charge. Id. at 1165. Our supreme court agreed with the State that the defendant "received benefits for her plea adequate to permit the trial court to conclude that her plea did not constitute a significant mitigating factor." Id.
Here, Comer received significant benefits from his guilty plea. In exchange for his guilty plea, the charges of child molesting as a class C felony and vicarious sexual gratification as a class D felony were dropped. The plea agreement also provided that the child molesting charge was reduced from a class A felony to a class B
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felony. Thus, rather than facing a maximum sentence of sixty-nine years for the four original counts, Comer faced a maximum sentence of twenty-eight years. See Ind.Code §§ 35-50-24 & 85-50-27 (2004).
8
Thus, Comer received a significant benefit from his guilty plea, and the trial court did not abuse its discretion by not identifying Comer's guilty plea as a mitigating factor. See: Sensback,
Comer also argues that the trial court erred by failing to consider the pre-sentence report's contentions that he was likely to respond affirmatively to probation and that he was unlikely to commit another offense as mitigators. Comer cites the presentence investigation report, which stated:
This officer has found the following [mitigating] factors:
* * * * " " c
2. 1.C. 35-38-1-7(c)(7) The defendant is likely to respond affirmatively to probation or short term imprisonment. The defendant has no history to show that he would not be an appropriate candidate for probation.
3. 35-38-1-7(c)(8) The character and attitudes of the defendant indicate that he is unlikely to commit another crime. The defendant expressed remorse during my interview. He express [sic] a desire to learn how to keep this from happening again. The defendant stated that he has already written an apology letter to the victim. This letter was given to Ed Pereira as part of the victims [sic] on going counseling. '
Pe * x x #
Appellant's Appendix at 47.) The State argues that the basis for the probation officer's findings were already included in the. listed mitigators. At sentencing, the trial court found: .
I -would find in mitigation; first, the defendant's lack of any prior criminal record, according to the presentence report, is completely clean. Secondly, the defendant appeared at his presentence interview to be remorseful and has made comments this morning of remorse, apologizing to his victim and he indicated a willingness to try to figure out why or what it was that drove him to commit this crime. |
Transcript at 33. Thus, the trial court found the reasons behind the presentence report's recommendations to be mitigators. Further, the trial court stated at sentencing, "Alright I've listened to the evidence this morning and reviewed the presentence report and considered comments of counsel and the letters that I earlier indicated received by the court ...." Id. at 84-85. Thus, the trial court did not overlook the mitigating factors of Comer's likelihood to respond affirmatively to probation and to commit another offense. Thus, the trial court did not abuse its discretion by failing to consider these issues as mitigators. See, e.g., Ware v. State, S16 N.E.2d 1167, 1178 (Ind.Ct.App.2004) (holding that the trial court did not abuse its discretion by failing to find defendant was unlikely to commit another crime as a mitigating factor because defendant was engaged in an on-going sexual relationship with a child over the course of several months and by failing to find that defendant would respond affirmatively to probation).
Comer also argues that his work history should have been a mitigating factor. The State argues that Comer has waived this argument by failing to present it to the trial court at sentencing. Even
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assuming that Comer preserved this argument, Comer only directs us to the presen-tence investigation report, which states that Comer worked for "Mark Glessner (farms)" for $15,000 per year from 1986 to 1990. Appellant's Appendix at 45. Comer quit that job and worked at "New House Farms" for $25,000 per year from 1991 to 2004. Id. The status of his employment with "New House Farms" is "unknown." Id. Comer has failed to establish that the mitigating evidence is both significant and clearly supported by the record. Thus, the trial court did not abuse its discretion by not considering Comer's work history as a mitigating circumstance. See, eg., Bennett v. State,
Comer also argues that the undue hardship to his four children should be a mitigating factor because he was supporting them until his arrest. "Many persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in an undue hardship." Dowdell v. State,
In summary, the trial court properly considered one aggravator and improperly considered two aggravators. Although a single aggravator is sufficient to support the imposition of an enhanced sentence, we cannot affirm because we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances. Therefore, we must remand to the trial court so that the valid aggravator may be reweighed against the mitigating factors. See, eg., Day v. State,
For the foregoing reasons, we reverse and remand for resentencing.
Reversed and remanded.
Notes
. Ind.Code § 35-42-4-3 (2004).
. Ind.Code § 35-42-4-3 (2004).
. We direct Comer's attention to Ind.App. Rule 46(A)(10), which requires an appellant's brief to "include any written opinion, memorandum of decision or findings of fact and conclusions thereon relating to the issues raised on appeal. When sentence is at issue in a criminal appeal, the brief shall contain a copy of the sentencing order."
. Ind.Code § 35-42-4-3 (2004).
. Ind.Code § 35-42-4-5 (2004).
. We note that the prosecutor initially addressed T.H.'s age during closing argument by stating, "[Comer] sexually molested [TH.] his stepdaughter age 12." Transcript at 29.
. Ind.Code § 35-42-4-3 provides:
(a) A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony.
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(b) A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.
. Subsequently amended by Pub.L. No. 71-2005, §§ 7-10 (eff. April 25, 2005).