Porter v. State

1

Jeremy Porter, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 23A-CR-641

Court of Appeals of Indiana

August 30, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Superior Court The Honorable Michael Bergerson, Senior Judge Trial Court Cause No 79D02-2207-F5-113

Attorney for Appellant Chad A. Montgomery Montgomery Law Office Lafayette, Indiana

Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Courtney Staton Deputy Attorney General Amanda L Martin-Nelson Certified Legal Intern Indianapolis, Indiana

MEMORANDUM DECISION

CRONE, JUDGE

Case Summary

[¶1] Jeremy Porter appeals the five-year executed sentence imposed by the trial court following his guilty plea to possession of child pornography as a level 5 felony. Finding that Porter has not met his burden to establish that his sentence is inappropriate in light of the nature of his offense and his character, we affirm.

Facts and Procedural History

[¶2] Like both Porter and the State, we quote the affidavit of probable cause for its recitation of the facts:

Officer Odom of the Lafayette Police Department and Corrections Officers Slater and Hartsock stat[ed] affirmatively on May 29, 2022 at approximately 1pm, officers were advised of a report involving child pornography being located on a cell phone belonging to Jeremy Porter Sr.

Upon arrival, officers spoke with Jeremy Porter Jr. who indicated he was at his father, Jeremy Porter Sr.'s residence, and used Jeremy Porter Sr.'s cell phone to make a call. Jeremy Porter Jr. advised he observed what appeared to be child pornography on the cell phone and turned the cell phone over to police. Officers learned Jeremy Porter Sr. was a participant of the Tippecanoe County Community Corrections program and was living at a residence on Emerald Pines Court in Lafayette, Indiana.

Community Corrections officers and officers with the Lafayette Police Department subsequently searched Jeremy Porter Sr.'s residence and seized two additional cell phones.

Affiant [Paul Huff] examined the contents of all three cell phones and located images of child pornography stored on the devices. On one of the cell phones seized from Jeremy Porter Sr.'s residence, Affiant observed multiple images saved to the phone contents which depicted juvenile females who appeared to be less than twelve years of age with their genitals exposed. Affiant noticed the images had a modified date of September 14, 2021 and were still stored in some form on the cell phone when it was seized on May 29, 2022. Affiant further observed a "selfie" image of Jeremy Porter Sr. saved to the phone with a modified date of September 15, 2021.

On the other cell phone seized from Jeremy Porter Sr.'s residence, Affiant observed multiple images saved to the phone contents which depicted juvenile children who appeared to be less than twelve years of age. Affiant observed some of the images depicted the exposed genitalia of the children and others depicted the children engaged in sexual intercourse or other sexual conduct. Affiant further noted all of these images had a modified date between September 10, 2020 and July 12, 2021 and they were still accessible on the cell phone when it was seized on May 29, 2022. Affiant also observed several images saved to the phone contents which depicted juvenile females who appeared to be less than twelve years of age being subjected to sadomasochistic abuse involving leg and/or arm restraints with their genitalia exposed. Affiant noted these images had a modified date between September 5, 2021 and March 9, 2022 and were still stored in some form on the phone when it was seized on May 29, 2022. Affiant further observed several documents and receipts addressed to Jeremy Porter Sr. were saved to the phone's contents.

Affiant reviewed Jeremy Porter Sr.'s cell phone which was provided to officers with the Lafayette Police Department on May 29, 2022. Affiant observed multiple images saved to the phone contents which depicted juvenile females who appeared to be less than twelve years of age with their genitalia exposed. Affiant noted these images had a modified date of March 2, 2022 and were still stored in some form on the cell phone when it was seized on May 29, 2022. The investigation was completed in early July 2022.

Appellant's App. Vol. 2 at 14.

[¶3] In July 2022, the State charged Porter with four counts of level 5 felony possession of child pornography. Id. at 10-13. The State also filed a petition to revoke Porter's probation in a separate matter, cause number 79D02-2008-F5-130 (F5-130).

[¶4] In January 2023, the parties filed a plea agreement in which Porter pled guilty to one count of level 5 felony possession of child pornography, and the State agreed to dismiss the three other felonies. Id. at 16-18. In addition, Porter agreed that his sentence would run consecutive to the sentence that he had been serving for F5-130 when he committed the current offense. The State agreed that Porter's penalty for violating probation in F5-130 would be sixty-two days of executed time already served. The plea agreement further provided that Porter "shall receive the sentence this Court deems appropriate after hearing any evidence or argument of counsel." Id. at 16. At a plea hearing, Porter admitted that he was guilty of level 5 felony possession of child pornography and that he violated the community corrections placement that he was serving for F5-130. Tr. Vol. 2 at 18-19.

[¶5] At a February 2023 sentencing hearing, the trial court heard Porter's testimony, considered the presentence report, and listened to arguments before ordering a five-year executed sentence. In its sentencing order, the court found two mitigating circumstances: Porter "plead guilty and accepted responsibility; [Porter's] good employment history." Sentencing Order at 1. The court found that the mitigating circumstances were outweighed by the following aggravating factors:

[Porter's] criminal history; [Porter] has had two (2) Petitions to Revoke filed against him; [Porter] has been unsuccessfully terminated from probation in the past; [Porter] has had one (1) Petition to Execute filed against him; [Porter] was on community corrections when the instant offense was committed; prior attempts at rehabilitation have failed; the amount of pornographic material [Porter] had in his possession.

Id. Porter filed a timely appeal.

Discussion and Decision

[¶6] Porter asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B), which states, "The 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." Porter has the burden of showing that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) clarified on reh'g, 875 N.E.2d 218. Although Rule 7(B) requires us to consider both the nature of the offense and the character of the offender, the appellant is not required to prove that each of those prongs independently renders his sentence inappropriate. Connor v. State, 58 N.E.3d 215, 218 (Ind.Ct.App. 2016); see also Moon v. State, 110 N.E.3d 1156, 1163-64 (Ind.Ct.App. 2018) (Crone, J., concurring in part and concurring in result in part) (quotation marks omitted) (disagreeing with majority's statement that Rule 7(B) "plainly requires the appellant to demonstrate that his sentence is inappropriate in light of both the nature of the offenses and his character."). Rather, the two prongs are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Connor, 58 N.E.3d at 218.

[¶7] When reviewing a sentence, our principal role is to leaven the outliers rather than necessarily achieve what is perceived as the correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). "We do not look to determine if the sentence was appropriate; instead we look to make sure the sentence was not inappropriate." Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell, 895 N.E.2d at 1222. "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess the nature of the offense and character of the offender, "we may look to any factors appearing in the record." Boling v. State, 982 N.E.2d 1055, 1060 (Ind.Ct.App. 2013).

Ultimately, whether a sentence should be deemed inappropriate "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell, 895 N.E.2d at 1224. Moreover, when conducting an appropriateness review, the appellate court may consider all penal consequences of the sentence imposed including the manner in which the sentence is ordered served. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

[¶8] Turning first to the nature of the offense, we observe that "the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed." Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a level 5 felony...