Jones v. State

221 N.E.3d 686

Wiley R. JONES, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 23A-CR-739

Court of Appeals of Indiana.

Filed October 10, 2023

Attorney for Appellant: Andrew R. Rutz, New Albany, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, IN

Brown, Judge.

[1] Wiley R. Jones appeals his convictions and sentences for six counts of possession of child pornography as level 5 felonies. We reverse and remand.

Facts and Procedural History

[2] On November 18, 2022, the State charged Jones with six counts of possession of child pornography as level 5 felonies.¹ On November 21, 2022, the court appointed counsel for Jones.

[3] On February 1, 2023, the parties filed a plea agreement pursuant to which Jones agreed to plead guilty as charged and indicated that sentencing was "open." Appellant's Appendix Volume II at 36. That same day, the court held a hearing. The court explained Jones's rights and stated: "Also understand that by entering a plea of guilt, the Court will proceed with judgment of guilt and sentence you without a trial. You understand that?" Transcript Volume II at 6. Jones answered affirmatively. The court explained to Jones that a level 5 felony carries a penalty of one to six years with an advisory sentence of three years.

[4] When the court asked for a factual basis, Jones acknowledged that he possessed or accessed six images on November 17, 2022, which depicted a child less than twelve years old engaged in sexual conduct.² The court indicated that the plea agreement did not say whether the sentences could be served consecutively and asked if they could be "run consecutively." Id. at 12. Defense counsel asserted that "that's something that we will argue at the sentencing hearing," he believed "they will be capped at seven (7) years based off of the statute for, um, continuous crimes, which would cap it at seven (7) years," and he believed the State had a different position. Id. After some discussion, the court stated: "I have to ask you because that is an open thing, that it can be run consecutively. I'm not saying that's what'll happen, I'm just saying that [ ] possibility exists. Do you understand that?" Id. at 13. After conferring with his counsel, Jones answered: "Okay. Sure. Sure. Sure." Id.

[5] On March 24, 2023, the court held a sentencing hearing. At the beginning of the hearing, the court stated that it entered judgments of conviction for all six counts. The prosecutor stated he thought it was important for the court to understand the nature of the underlying charges and presented the testimony of Indiana State Police Detective Scott Stewart. Detective Stewart testified that he received two tips from a company that stores data for Verizon and found a large amount of "child sexual abuse material, child pornography, uh, child molest videos." Id. at 21. According to Detective Stewart, he obtained search warrants for all the content for the account and a search warrant was generated to Verizon for subscriber information. Detective Stewart received information from Verizon and the phone number came back to Jones. He obtained search warrants to review material Jones had in his possession. When asked how many images were obtained from Jones's residence, he answered: "Hundreds. Um, there's hundreds of videos, um, child molest videos, there's hundreds, if not thousands, but I – I don't know an exact figure, but it's a very large amount." Id. at 24. Jones told Detective Stewart that he knew what he was doing was illegal, that he "was interested," and that "it was intriguing to him." Id. at 25. Detective Stewart testified the six videos "of what was charged" were obtained from a tablet and a computer. Id. at 26. He indicated that: Count I involved the fondling of the backside of a minor child; Count II involved a collage video of an infant child; Count III involved fellatio of a toddler by another minor; Count IV involved the fondling of an infant's vaginal area; and Count V involved an adult ejaculating on a pre-pubescent female. Detective Stewart also discussed State's Exhibit 2, which contained modification dates for the images. Based upon Detective Stewart's testimony and State's Exhibit 2, Count I was based on evidence that was last modified on January 26, 2017; Count II was based on evidence last modified at 5:21 p.m. on December 25, 2021; Count III was based on evidence modified on December 17, 2021, and at 4:47 p.m. and 5:22 p.m. on December 25, 2021; Count IV was based on evidence modified at 5:29 p.m. on December 25, 2021; Count V was based on evidence modified on December 25, 2021, and April 13, 2022; and Count VI was based on evidence modified at 5:23 p.m. on December 25, 2021.³ When asked "when there are different modification dates does that indicate that Mr. Jones ... manipulated that video in some manner on his device," he answered: "Something happened to that video on those – that device. So, that's the last modification that happened to that video." Id. at 28. The prosecutor said "Okay," and Detective Stewart said: "Something happened." Id.

[6] On cross-examination, when asked if Jones told him where he obtained the child pornography, he answered: "I don't think he gave us anyone specific. He was talking about he just got them from every – a lot of different places. I – I don't recall exactly." Id. at 37. When asked if he had testified that "this was an above average case in terms of the amount of child pornography," he answered affirmatively. Id. at 38.

[7] Jones's counsel argued:

I would point the Court to Indiana Code 35-50-1-2, which very clearly states however except for crimes of violence, which possession of child pornography is not a crime of violence, child exploitation is a crime of violence, the total of a consecutive sent – terms of imprisonment exclusive of terms of imprisonment under Indiana Code 35-50-2-8 and Indiana Code 35-50-2-10 to which a defendant is sentenced for a felony conviction arising out of an episode of criminal conduct shall not exceed the period ... as described in subsection (d). For a Level 5 Felony, that means the terms of imprisonment may not exceed seven (7) years. I think that's important. Um, you heard Detective Stewart testify it's not common to bust someone with possession of child pornography the same day they get their child pornography. They're gonna (sic) have it for multiple days. That does not mean that we just getta (sic) convict them over and over again.

Id. at 49. He also asserted:

I will point out to you that nowhere on his plea agreement does it state that he is pleading guilty to Possession of Child Pornography on more than one (1) date or on more than one (1) time. He is pleading guilty to Possession of Child Pornography on or about November seventeenth (17^th), twenty twenty-two (2022) in Floyd County, State of Indiana. That's what he pled to on Count 1. That's what he pled to on Count 2. That's what he pled to on Count 3. That's what he pled to on Count 4. That's what he pled to on Count 5. That's what he pled to on Count 6, and now the State is asking you to have him sentenced for something that he didn't even plead guilty to. He pled guilty to one (1) specific date, period.

Id. at 50.

[8] On March 27, 2023, the court continued the hearing. The court found that Jones "participated in these offenses over a period of years" as an aggravating circumstance. Id. at 61. It stated the crimes "were not brought about by a single error in judgment" and, "[w]hen he claimed remorse in his Presentence Investigation, he did not provide any evidence of any effort he made to obtain help in dealing with this despicable behavior." Id. The court also stated:

Each video that we saw contains separate and distinct incidents of the crime of child pornography. Thousands of images and videos were involved, and thousands of children including infants, toddlers, and other very young children, were victimized, and although [Jones] admitted guilt in this case, I do remember when he made his plea change to that of guilty, he was a little bit evasive in establishing the factual basis for the crimes and appeared somewhat reluctant to admit guilt, although, uh, he did, uh, very accurately, um, make the – the factual basis and admitted guilt, but due to the nature of these offenses, a lesser sentence would depreciate the seriousness of the crime. These offenses are particularly disgusting and it is difficult to understand how people would've have [sic] an appetite for such things. Those are the aggravating circumstances that I thought were the most important.

Id. at 61-62. With respect to mitigating circumstances, the court observed that Jones "scored as low risk on the IRA's [sic] and he led a law-abiding life for a substantial period of time before this offense as far as the Court knows." Id. at 62. The court found the aggravating circumstances far outweighed the mitigating circumstances.

[9] On March 27, 2023, the court sentenced Jones to consecutive sentences of four years on each conviction with four years executed for Counts I through V and four years suspended for Count VI for an aggregate sentence of twenty-four years with twenty years executed and four years suspended.

Discussion

[10] Jones argues that the sentencing procedure violated his right to understand the possible sentencing range guaranteed by Ind. Code § 35-35-1-2(a)(3) and Article 1, § 13 of the Indiana Constitution. He asserts Ind. Code § 35-50-2-1.3(c) required that the trial court use the appropriate advisory sentence, "[i]t constrains the trial court's discretion in accordance with [Ind. Code] § 35-50-1-2(d)(2)," and "[t]he exception sets-up a seven-year ceiling when three elements exist: (1) the trial court is imposing consecutive sentences for felony convictions that (2) are not crimes of violence that (3) ‘arise out of an episode of criminal conduct.’ " Appellant's...