Edwards v. State

147 N.E.3d 1019

Kevin MT EDWARDS, Appellant/Defendant,

v.STATE of Indiana, Appellee/Plaintiff.

Court of Appeals Case No. 20A-CR-42

Court of Appeals of Indiana.

FILED April 30, 2020

Attorney for Appellant: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana

Attorneys for Appellees: Curtis T. Hill, Jr., Attorney General of Indiana, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana

Bradford, Chief Judge.

Case Summary

[1] In early 2019, Kevin Edwards was determined to be in possession of ten pornographic images of minors and eventually pled guilty to ten counts of possession of child pornography, three as Level 5 felonies and seven as Level 6 felonies. The trial court imposed an aggregate sentence of thirteen and one-half years of incarceration with one and one-half years suspended to probation. Edwards contends that because his ten possession charges constituted a single episode of criminal conduct, the trial court erred in imposing an aggregate sentence of longer than seven years. Because the State failed to produce enough evidence to allow a finding that Edward's crimes did not constitute an episode of criminal conduct, we affirm Edwards's convictions but remand for the imposition of a sentence of no longer than seven years.

Facts and Procedural History

[2] In December of 2018, Google LLC reported an incident of suspected possession of child pornography to the National Center for Missing and Exploited Children ("the NCEMC"), which forwarded a CyberTip report to the Indiana State Police, which forwarded it to Detective Kevin Getz. (Appellant's App. Vol. II p. 17). According to the CyberTip report, the person suspected of downloading pornographic images had used an email address of zombiebait0419@gmail.com, which was determined to belong to Edwards. Two further CyberTip reports indicated suspected incidents of downloading child pornography on December 7, 2018, at 16:30:04 hours Greenwich mean time and on December 7, 2018, at 16:26:39 Greenwich mean time. Four images associated with the two incidents were forwarded along with the CyberTip reports. On January 15, 2019, Detective Getz forwarded a search warrant to Google requesting information and content related to the account associated with zombiebait0419@gmail.com. Google forwarded an additional six images of child pornography in the search-warrant return. Another search warrant was executed on Edwards's Bedford residence on March 21, 2019.

[3] On March 22, 2019, the State charged Edwards with ten counts of possession of child pornography, three as Level 5 felonies and seven as Level 6 felonies. On November 13, 2019, Edwards pled guilty as charged without a written plea agreement. On December 9, 2019, the trial court held a sentencing hearing, during which neither party presented any evidence and Edwards argued that his aggregate sentence could be no longer than seven years because his ten acts of possession constituted a single episode of criminal conduct. Without providing a rationale, the trial court rejected this argument, finding that Edwards's offenses were not part of a single episode of criminal conduct. The trial court proceeded to sentence Edwards to two and one-half years of incarceration for each of his Level 5 felony convictions and to one year for each of his Level 6 felony convictions, with all sentences to be served consecutively with the exception of one of the Level 6 felony sentences. The trial court suspended one and one-half years of Edward's aggregate thirteen-and-one-half-year sentence to probation.

Discussion and Decision

[4] The determination of a defendant's sentence is within the trial court's discretion, and will be reversed only upon a showing of abuse of discretion. Pritscher v. State , 675 N.E.2d 727, 729 (Ind. Ct. App. 1996). The legislature prescribes penalties for crimes and the trial court's discretion does not extend beyond the statutory limits. Id. Therefore, in reviewing a sentence, we will consider whether it was statutorily authorized. Id.

[5] Indiana Code section 35-50-1-2 provides, in part, that "except for crimes of violence, the total of the consecutive terms of imprisonment [...] to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct [...] may not exceed seven (7) years [... i]f the most serious crime for which the defendant is sentenced is a Level 5 felony[.]" Because none of Edwards's convictions were for "crimes of violence" (as defined by Indiana Code section 35-50-1-2(a) ),¹ if they all arose from "an episode of criminal conduct[,]" his aggregate sentence cannot exceed seven years of imprisonment. Ind. Code § 35-50-1-2(d)(2).

[6] The statutory definition of an "episode of criminal conduct" is that it "means offenses or a connected series of offenses that are closely related in time, place, and circumstance." Ind. Code § 35-50-1-2(b). Although we have stated that " ‘the singleness of a criminal episode should be based on whether the alleged conduct was so closely related in time, place and circumstances that a complete account of one charge cannot be related without referring to details of the other charge[,]’ " Tedlock v. State , 656 N.E.2d 273, 276 (Ind. Ct. App. 1995) (quoting State v. Ferraro , 8 Haw.App. 284, 800 P.2d 623, 629 (1990) ), the Indiana Supreme Court has since said that "this is a bit of an overstatement" and elaborated as follows:

We are of the view that although the ability to recount each charge without referring to the other can provide additional guidance on the question of whether a defendant's conduct constitutes an episode of criminal conduct, it is not a critical ingredient in resolving the question. Rather, the statute speaks in less absolute terms: "a connected series of offenses that are closely connected in time, place, and circumstance." I.C. § 35-50-1-2(b). And as we have observed, " Tedlock emphasizes the timing of the offenses" and "refers to the ‘simultaneous’ and ‘contemporaneous’ nature of the crimes which would constitute a single episode of criminal conduct." Smith v. State , 770 N.E.2d 290, 294 (Ind. 2002) (citing Tedlock , 656 N.E.2d at 276 ).

Reed v. State , 856 N.E.2d 1189, 1200 (Ind. 2006).

[7] All the convictions in this case were for possession of child pornography, ten items of which, the parties seem to agree, were discovered to be in Edwards's possession at the same time. Edwards argues that this simultaneity renders all ten possessions a single episode of criminal conduct, even if all ten items were acquired at different times. Edwards also argues that, even if the time of acquisition matters, the record indicates that he acquired all images at the same time. The State argues that, despite the Reed Court's emphasis on the simultaneous nature of the crimes at issue, simultaneous possession is not determinative if the images were acquired separately, as it argues they were.

I. The Interaction Between Possession Crimes and Indiana Code Section 35-50-1-2(b)

[8] Over the past twenty years, a split has developed in this court regarding the interaction between possession crimes and the consecutive-sentence limitations in Indiana Code section 35-50-1-2. In Ratliff v. State , 741 N.E.2d 424 (Ind. Ct. App. 2000), trans. denied , the defendant was operating a vehicle while intoxicated and fled when police attempted to make a traffic stop. Id. at 427–28. When Ratliff was apprehended, he was found to be in possession of marijuana. Id. at 428. The State charged Ratliff with, and he was convicted of, operating a vehicle while intoxicated, resisting law enforcement, and marijuana possession; the trial court imposed an aggregate sentence in excess of that allowed pursuant to the then-current version of Indiana Code section 35-50-1-2(b), if it applied. Id. Ratliff argued on appeal that it did apply because all three of his convictions were part a single episode of criminal conduct. The majority disagreed:

Although it may be true that Ratliff's OWI and resisting law enforcement convictions could not be related without referring to both crimes, the possession of marijuana conviction is wholly separate, related only by the fact that the crime was discovered in the course of pursuing a fleeing drunk driver. [...] That the three criminal acts were "part of a larger or more comprehensive series" of acts which were discovered simultaneously does not distract from the fact that they are distinct acts, not all of which bear a direct relation to the others. Therefore, we hold that Ratliff's actions did not constitute a single episode of criminal conduct, and the trial court was not limited by Indiana Code section 35-50-1-2(b) in sentencing Ratliff to consecutive terms of imprisonment.

Id. at 434.

[9] Judge Mathias dissented on this point, focusing on the fact that Ratliff had committed other crimes while simultaneously in possession of contraband:

The majority holds that the OVWI and resisting law enforcement convictions, each of which required a volitional act, are part of the same criminal episode but that "the possession of marijuana conviction is wholly separate, related only by the fact that the crime was discovered in the course of pursuing a fleeing drunk driver." Op. at 434. The possession of marijuana offense, which does not require a volitional act, occurred at the same time and place as the other offenses. Nevertheless, the majority excludes the possession offense from the criminal episode because the marijuana was merely "discovered" at the time of the other offenses. Under the majority's rationale, every possession offense, by virtue of its non-volitional nature, will never be part of any criminal episode. I believe such a result contravenes both the language and intent of the statute, although I fully acknowledge that there is no authority on the issue.

Ratliff's possession of marijuana was directly and inextricably connected to the other offenses, as the marijuana would never have been discovered had Ratliff not

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