Opinion
Court of Appeals Case No. 20A-CR-2280
05-13-2021
Matthew Hon FERGUSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
Attorney for Appellant: Timothy P. Broden, Broden Law, Lafayette, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Timothy P. Broden, Broden Law, Lafayette, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[1] Matthew Hon Ferguson contends his thirteen-year sentence for Level 3 felony promotion of sexual trafficking of a younger child and Level 4 felony sexual misconduct with a minor is inappropriate. We affirm.
Facts and Procedural History
[2] In 2017, Ferguson, who was twenty-two years old and lived in Lafayette, Indiana, met K.S., who was eleven or twelve years old and lived in Pennsylvania. The two stayed in contact on Facebook. In May 2020, Ferguson visited K.S., then fourteen, in Pennsylvania and stayed with her and her mother for about a week. After Ferguson left, he and K.S. talked daily. On June 11, Ferguson drove to K.S.’s house in Pennsylvania in the middle of the night, snuck her out of her house, and brought her back to Lafayette.
According to the PSI, Ferguson was charged with several crimes in Pennsylvania related to his May 2020 stay with K.S. These charges were pending at the time of sentencing in this case.
[3] When they returned to Lafayette, K.S. stayed with Ferguson, who lived with his mother, father, and four young children. Ferguson had sexual intercourse with K.S. twice. While K.S. was at Ferguson's house, she was reported as a runaway in Pennsylvania. On June 19, Lafayette Police Department officers went to Ferguson's house, where they thought K.S. was staying. They asked Ferguson and his mother if K.S. was there, but they said no. The next day, June 20 (which happened to be K.S.’s fifteenth birthday), the police found K.S. at Ferguson's house and returned her to Pennsylvania.
[4] Upon K.S.’s return, Pennsylvania authorities opened an investigation. On July 7, while the investigation was ongoing, Ferguson took a bus to Pennsylvania and brought K.S. back to Lafayette with him. When Ferguson and K.S. returned to Lafayette on July 8, they stayed with some of Ferguson's friends. While there, K.S. received two tattoos—one on her forearm of the nickname Ferguson had given her and the other on her collar bone of Ferguson's first and last names (Ferguson was present during one tattoo).
[5] On July 9, Lafayette Police Department officers arrested Ferguson in connection with the June events. At the time, the officers didn't know K.S. was back in Indiana. Ferguson waived his rights and spoke to the police; however, he didn't tell them K.S. was in Lafayette. The next day, July 10, the State charged Ferguson with two counts of Level 4 felony sexual misconduct with a minor (for the two incidents of sexual intercourse occurring between June 11 and 20). The State later added a third count, Level 3 felony promotion of sexual trafficking of a younger child, which was based on Ferguson transporting K.S. in June with the intent of inducing her to participate in sexual conduct. The trial court issued an order prohibiting Ferguson from contacting K.S.
[6] On July 18, K.S. showed up at Ferguson's house. Ferguson was in jail, and his mother called the police to come get her. While incarcerated, Ferguson wrote K.S. a letter telling her how to get around the no-contact order and that he wanted to continue their relationship.
[7] In October, Ferguson and the State entered into a plea agreement, under which Ferguson would plead guilty to Level 3 felony promotion of sexual trafficking of a younger child and one count of Level 4 felony sexual misconduct with a minor and the State would dismiss the other sexual-misconduct count. According to the agreement, sentencing was left to the discretion of the trial court except that the sentences would run concurrently.
[8] At the sentencing hearing, evidence was presented that the mother of Ferguson's four children rarely saw them, leaving them in the care of Ferguson and his mother; Ferguson had a job but was laid off in March 2020 when the pandemic started; and Ferguson has mental-health issues, including bipolar disorder, intermittent explosive disorder, PTSD, and depression. In addition, evidence was presented about Ferguson's juvenile and criminal history. Specifically, he has juvenile adjudications for criminal trespass, battery, and disorderly conduct. Ferguson was charged with Class C misdemeanor operating a motor vehicle without ever receiving a license in March 2020 (before the events in this case) and pled guilty during the pendency of this case.
[9] The trial court identified six aggravators: (1) Ferguson has a juvenile and criminal history; (2) the nature and circumstances of the offenses; (3) Ferguson had a pending misdemeanor case when he committed the offenses in this case; (4) Ferguson wrote a letter to K.S. from jail saying he still wanted a relationship with her; (5) Ferguson "traveled to Pennsylvania twice to pick up" K.S.; and (6) Ferguson "failed to disclose to law enforcement that he left [K.S.] with friends in Indiana prior to his arrest causing her whereabouts to be unknown for nine (9) days following his arrest." Appellant's App. Vol. II p. 24. The court identified four mitigators: (1) Ferguson pled guilty "in a timely manner," which was "diminished by the benefit received from the plea agreement"; (2) Ferguson has mental-health issues; (3) long-term imprisonment would cause an undue hardship on Ferguson's children; and (4) Ferguson had a good employment record. Id. Finding the aggravators outweigh the mitigators, the court sentenced Ferguson to thirteen years for Level 3 felony promotion of sexual trafficking of a younger child and ten years for Level 4 felony sexual misconduct with a minor, to be served concurrently. The court ordered Ferguson to serve ten years in prison and three years on probation.
[10] Ferguson now appeals his sentence.
Discussion and Decision
[11] Ferguson contends his thirteen-year sentence, with ten years executed and three years suspended to probation, is inappropriate and asks us to revise it to nine years, with six years executed and three years suspended to probation. Under Indiana Appellate Rule 7(B), 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, 159-60 (Ind. 2019) (quotation omitted). "Ultimately, our constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate." Id. at 160 (quotation omitted).
[12] A person who commits a Level 3 felony shall be imprisoned for a fixed term of between three and sixteen years, with an advisory term of nine years. Ind. Code § 35-50-2-5(b). A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two and twelve years, with an advisory term of six years. Ind. Code § 35-50-2-5.5. Here, the trial court sentenced Ferguson to thirteen years for the Level 3 felony and ten years for the Level 4 felony and ordered the sentences to be served concurrently.
[13] As the trial court recognized, there are mitigating aspects to Ferguson's character. He has four young children who need taken care of, he was employed until the pandemic started, he has mental-health issues, and he pled guilty early in this case. In addition, as Ferguson points out, this is his first felony conviction (the Pennsylvania charges were pending when Ferguson was sentenced in this case).
Ferguson claims the trial court shouldn't have identified his juvenile and criminal history as an aggravator. However, this amounts to an abuse-of-discretion argument, not an inappropriate-sentence argument, which is the sole argument Ferguson raises on appeal. But even if Ferguson properly raised this argument, there are five other aggravators, none of which he challenges.
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[14] Nonetheless, the disturbing and predatory nature of the offenses supports Ferguson's sentence. Ferguson met K.S. when she was eleven or twelve years old and stayed in contact with her on Facebook. In June 2020, when Ferguson was twenty-five and K.S. was fourteen, Ferguson drove to Pennsylvania in the middle of the night, snuck K.S. out of her house, and brought her back to his house in Indiana, where he had sexual intercourse with her. When the police came to his house looking for K.S., Ferguson denied she was there. Shortly after the police found K.S. and returned her to Pennsylvania, Ferguson took a bus to Pennsylvania and brought her back to Indiana a second time. See Appellant's Br. p. 9 (Ferguson "conced[ing]" he brought K.S. from Pennsylvania to Indiana on two occasions). This time, Ferguson took K.S. to his friend's house, where she was tattooed with his name. The next day, Ferguson was arrested for the earlier events. Although Ferguson waived his rights and spoke to the police, he didn't tell them K.S. was back in Indiana. It wasn't until K.S. showed up at Ferguson's house about ten days later that they learned she was back in Indiana. When Ferguson was in jail, he wrote a letter to K.S. telling her how to get around the no-contact order and that he wanted to continue their relationship.
[15] This is not an exceptional case that warrants a sentence revision. We therefore affirm Ferguson's sentence.
[16] Affirmed.
Bradford, C.J., and Brown, J., concur.