Opinion
24A-CR-2065
12-16-2024
ATTORNEY FOR APPELLANT Jerry T. Drook Marion, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Andrew M. Sweet Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Blackford Circuit Court The Honorable Brian W. Bade, Judge Trial Court Cause No. 05C01-2211-F3-389
ATTORNEY FOR APPELLANT Jerry T. Drook Marion, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Andrew M. Sweet Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge.
[¶1] Michael V. Winters appeals his sentence for two counts of child solicitation as level 5 felonies. We affirm.
Facts and Procedural History
[¶2] On July 23, 2022, Winters, who was born in 1995, communicated with a fourteen-year-old and solicited her to engage in sexual intercourse. On August 4, 2022, Winters communicated with a person whom he knew to be at least fourteen years old but less than sixteen years old and solicited the individual to perform a sexual act with him.
[¶3] On November 10, 2022, the State charged Winters with: Count 1, promotion of sexual trafficking of a child as a level 3 felony; Count 2, child solicitation as a level 5 felony; Count 3, conspiracy to commit kidnapping as a level 6 felony; Count 4, vicarious sexual gratification as a level 5 felony; Count 5, child solicitation as a level 5 felony; Count 6, child solicitation as a level 5 felony; Count 7, child solicitation as a level 5 felony; and Count 8, inappropriate communication with a child as a class A misdemeanor.
Count 1 referenced a "child less than sixteen (16) years of age." Appellants' Appendix Volume II at 16. Counts 2 through 6 referenced "Victim No. 1, a child at least fourteen years of age but less than sixteen years of age." Id. at 17. Count 7 referenced "Victim No. 2, a child at least fourteen years of age but less than sixteen years of age." Id. Count 8 referenced a "child less than fourteen (14) years of age." Id.
[¶4] On December 13, 2022, the court held a hearing on Winters's motion to set bond, and the court set a bond amount of $3,000. On February 9, 2023, Winters posted a cash bond.
Winters's notice of appeal requested transcripts of only the November 13, 2023 and January 22, 2024 hearings. The record does not contain a transcript of the December 13, 2022 hearing.
[¶5] On November 13, 2023, Winters and the State filed a plea agreement pursuant to which Winters agreed to plead guilty to Count 2, child solicitation as a level 5 felony, and Count 7, child solicitation as a level 5 felony, and the State agreed to dismiss the remaining counts. That same day, the court held a hearing at which it discussed the plea agreement and noted that Winters was free subject to a bond conditioned on his appearance for all court proceedings.
[¶6] On January 22, 2024, the court held a hearing at which it accepted the plea agreement. Winters testified that he had been working as a "fork truck" driver for a few months and was hired a month earlier but lost his employment after his arrest. Transcript Volume II at 28. He indicated he understood that his actions had a severe impact on people. He stated:
I'm very sorry. I started this a long time ago, around the victim's age, and it was a mistake at that time to start. But, then, I chose as an adult to get back into it, and that's my fault. And I, reading the impact statement, I did not realize how much harm I was causing, but it's - I don't want to hurt people. I'm not trying to hurt people. I just - I was in a bad spot as well, and I let . . .
myself get out of control, and that's my problem and I need to take care of that.Id. at 30. When asked if he had taken any steps to "take care of that," he answered that he had "been trying to work through some of these issues on [his] own" and was willing to do therapy. Id. He also stated that he realized that he "should have gotten into it sooner as well." Id. Winters later stated:
Your Honor, I understand that in this day and age where it don't really mean a lot, I am sorry, and I can say that a million times and it doesn't change anything. The only thing that I can really do is try to improve my actions from this point on. I wish I could go back. I wish I could change things, but that's not an option. I have to move forward and I'm willing to show my apology in any way, even if that should mean 12 years in prison or more.Id. at 38.
[¶7] The mother of one of the victims testified that her daughter lost her innocence and "[t]his has devastated my daughter." Id. at 33. She also stated, "And I just heard him say he hasn't gotten help, although he's been what - this is a year at least going on now." Id. at 32. The victim's father testified that his daughter "blames herself" and is devastated. Id. at 34. He stated, "[Winters has] had two years to go to therapy. Has he been busy? He's an animal, and he knows it." Id. He also asked the court to read what Winters wrote to his daughter.
[¶8] The court stated:
First and foremost, the State and the victims who have made comment in this cause pointed out fairly accurately, what I'm
looking at an offense of this type and determining how to sentence it, the material that the Court was exposed to through presentation of evidence or otherwise, whether during bond hearing, whether during probable cause affidavit proceedings, if you could put a severity level within a particular offense, you are most certainly at the high-end of this offense level. The things that were said were beyond disturbing. Unconscionable the way that you were speaking to these minor children. Secondarily, with respect to culpability, weighing that in, your comments were littered with your own admission that you knew it was bad to do, you knew that you might be taking advantage of vulnerable individuals....[I]t certainly stood out to me, the statements the victims have written and, then, presented here today verbally, what a profound impact this has had, particularly on at least one of the victims.... And lastly, point of consideration, Mr. Winters, the State and, I think, the victims very aptly pointed out, I had made a note before these proceedings, something I was looking for is, I wanted to see what you had been doing since your release on bond. I wrote that down, because at your bond, I specifically mentioned, kind of a spoiler alert, some of the things I would look for. One of those was, maintain appropriate work history. You've done that. The other thing was, what are you doing to show me that you're either making this better, that this isn't going to be a problem again, and it's been a total failure in that regard. Even if you didn't really want to get better, even if you just wanted to fool me and give me the impression you wanted to get better, perhaps reduce the impact of your sentence, the first thing I would have done is sign up with a counselor and go get that process started. It makes it very difficult to believe that that is your number one priority is rehabilitation when, not only when you did not do it right away, you didn't do it at all. That concerns me. It does. From the other side of the coin, the notes that I have specifically made with respect to consideration for sentence, [defense counsel] has accurately pointed out, you're still relatively young. You do not have a prior criminal history, which the Court has considered. Additionally, the Court is weighing whether or not the prospects of rehabilitation are better
with different forms of sentence. So, I am weighing some of those things that [defense counsel] has pointed out, and I will tell you, Mr. Winters, as difficult it is to find anything positive to say, I guess from a rehabilitation standpoint, it gives you a small fraction of hope that you were able to recognize that you had these problems even while you were committing these issues.Id. at 38-39. The court sentenced Winters to six years for Count 2 with one year suspended to probation and six years for Count 7 with one year suspended to probation. The court ordered the sentences to be served consecutively. With respect to the consecutive aspect, the court stated: "The Court finds as a result of there being separate victims, the timeframes associated, and these offenses falling within a classification of offenses that allows for the Court to consider consecutive sentencing, the Court will order that those sentences be imposed consecutively, a total of 12 years." Id. at 40.
Discussion
[¶9] Winters argues that his sentence is inappropriate in light of the nature of the offenses and his character. Ind. Appellate Rule 7(B) provides that we "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall be imprisoned for a fixed term of between one and six years, with the advisory sentence being three years.
[¶10] Our review of the nature of the offenses reveals that Winters communicated with a fourteen-year-old in July 2022 and solicited her to engage in sexual intercourse. The next month, Winters communicated with another person whom he knew to be at least fourteen years old but less than sixteen years old and solicited her to perform a sexual act with him. The presentence investigation report ("PSI") indicates that Winters's version of the offenses involved him attempting "to solicit lewd actions and images from girls under the age of eighteen," he stated one of the girls being "more eager, which led to [his] unhealthy obsession growing worse," "[i]t began to consume all [his] time," he used online chatrooms to meet people "who give the content out," and "[t]he reason this happened is because [he] let [himself] go out of control, and acted like an animal." Appellant's Appendix Volume II at 60. He also stated that "the one victim was more 'willing,' and he agreed to go get her in Maine," and "[h]er mom took her phone so I ordered her a new phone." Id.
[¶11] A victim impact statement indicates that Winters first contacted her when she was thirteen years old and asked her if "he could groom" her, she later sent him videos and photos of herself, and he "would become more and more manipulative, making [her] feel guilty for regretting doing these things with him," and "since [she] gave him pictures and information about [her] and [her] family, [she] couldn't afford to block him." Id. at 88. She wrote that "staying clean of self-harm is almost impossible, relapsing almost daily," she developed anorexia, and she has not "felt like [herself] since [she] first met him, [and] [she has] wanted to get into relationships where they're abusive and manipulative." Id. The mother of one of the victims wrote that Winters preyed on her daughter's vulnerabilities including anxiety and self-esteem issues and manipulated her to receive photos and information about where they live and used that information "to blackmail her into further photos and contact." Id. at 89.
[¶12] Our review of the character of the offender reveals that Winters pled guilty to Count 2, child solicitation as a level 5 felony, and Count 7, child solicitation as a level 5 felony, and the State dismissed multiple counts. The PSI indicates that Winters, who was born in 1995, has no prior criminal history. It indicates Winters stated that he started to use marijuana when he was twenty years old, his use varies, and his last use of marijuana was "a couple of weeks" before the PSI interview. Id. at 62. According to the PSI, Winters stated that he began using acid and mushrooms when he was twenty-two or twenty-three years old and has used acid and mushrooms three or four times. He stated that he had crushed Adderall and Vicodin and snorted each. He also stated that he generally takes risks and lacks control. The PSI indicates that Winters's overall risk assessment score using the Indiana risk assessment tool places him in the high risk to reoffend category. After due consideration, we conclude that Winters has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offenses and his character.
To the extent Winters argues the trial court abused its discretion in sentencing him, we need not address this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind.Ct.App. 2012) (noting that any error in failing to consider the defendant's guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh'g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App. 2007) (noting that, "even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate"), trans. denied), trans. denied. Even if we were to address Winters's abuse of discretion argument, we would not find it persuasive in light of the record.
[¶13] For the foregoing reasons, we affirm Winters's sentence.
[¶14] Affirmed.
Mathias, J., and Kenworthy, J., concur.