S.B. v. State

175 N.E.3d 1199

S.B., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-698

Court of Appeals of Indiana.

FILED September 17, 2021

Attorney for Appellant: Donald E. C. Leicht, Peru, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J. T. Whitehead, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] S.B. appeals her sentences, entered pursuant to a plea agreement, for two counts of incest as Level 4 felonies. S.B. alleges that: (1) the trial court erred in imposing consecutive terms of imprisonment that exceeded the fifteen-year maximum term allowed under Indiana Code Section 35-50-1-2 ; and (2) her twenty-four-year aggregate sentence is inappropriate in light of the nature of her offenses and her character. We agree with S.B. that incest is not an enumerated "crime of violence" pursuant to Indiana Code Section 35-50-1-2(a) ; however, S.B. has failed to meet her burden on appeal of demonstrating that her odious crimes constituted a single episode of criminal conduct. Thus, we conclude that the trial court did not err in imposing consecutive sentences that exceeded the fifteen-year statutory limit prescribed in Indiana Code Section 35-50-1-2(d)(3). Further, S.B. has not carried her burden to persuade us that her twenty-four-year aggregate sentence is inappropriate in light of the nature of her offenses and her character. Accordingly, we affirm.

Issues

[2] S.B. raises two issues on appeal, which we restate as follows:

I. Whether S.B.’s twenty-four-year aggregate sentence exceeds the statutory maximum prescribed by Indiana Code Section 35-50-1-2.

II. Whether S.B.’s sentence is inappropriate in light of the nature of her offenses and her character.

Facts

[3] In late June 2019, C.K. sent messages to an acquaintance via Facebook Messenger, wherein C.K. confessed that C.K. and his ex-girlfriend, S.B., engaged in numerous sex acts with S.B.’s minor sons.¹ At the time, S.B.’s sons were six years old and three years old, respectively. The acquaintance notified and relayed C.K.’s sexually explicit confessions to the police.

[4] In S.B.’s police interview on June 23, 2019, S.B. initially denied knowledge of the crimes and cited her methamphetamine use with C.K. for her lack of memory. S.B. subsequently admitted that she and C.K. snorted methamphetamine, undressed her sons, and engaged in oral and anal sex acts with her sons including the following:² (1) S.B. and C.K. massaged the bottoms and penises of both boys; (2) S.B. performed oral sex on her three-year-old son; (3) C.K. performed oral sex on S.B.’s six-year-old son; (4) S.B. and C.K. engaged in sexual activity in the presence of the boys; and (5) C.K. watched pornography with the six-year-old boy and coached the six-year-old boy to mimic various acts of digital and anal penetration on S.B.

[5] On June 15, 2019, the State charged S.B. with two counts of child molesting, as Level 1 felonies, as well as two counts of incest, as Level 4 felonies, which the State later amended in September 2019 to change the address of the offenses. The amended charging information for Count III reads:

The undersigned affiant, being duly sworn according to law upon oath deposes and says that between May 1, 2019 and June 24, 2019 at or near [address] in Howard County, State of Indiana, [S.B.] being at least eighteen years of age, to-wit: age 31 years, did engage in sexual intercourse or other sexual contact with another person, to-wit: T.H.; knowing that said other person is related to the defendant biologically as a child and the other person was less than 16 years of age, to-wit: 6 years old, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.

S.B.’s App. Vol. II p. 40. The amended charging information for Count IV reads:

The undersigned affiant, being duly sworn according to law upon oath deposes and says that between May 1, 2019 and June 24, 2019 at or near [address] in Howard County, State of Indiana, [S.B.] being at least eighteen years of age, to-wit: [31] years old did engage in sexual intercourse or other sexual contact with another person, to-wit: M.T.; knowing that said other person is related to the defendant biologically as a child and the other person was less than 16 years of age, to-wit: 3 years old, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.

Id. at 41.

[6] The State and S.B. tendered a plea agreement to the trial court on February 24, 2021. Therein, S.B. agreed to plead guilty to the two charged counts of incest ("Counts III and IV") in exchange for the State's agreement not to file additional charges and to dismiss the remaining charges. The plea agreement left sentencing to the trial court's discretion.

[7] At S.B.’s change of plea and sentencing hearing on April 7, 2021, S.B., by counsel, stipulated that the facts recited in the probable cause affidavit regarding the two incest counts, as summarized above, constituted a sufficient factual basis for Counts III and IV. See S.B.’s Tr. Vol. II p. 11. The trial court approved the plea agreement. The probable cause affidavit recites four Facebook messages that C.K. sent to a friend regarding the incidents of child molesting and incest. The fourth message states: "The next and last time was in the boys[’] room" and recounts depraved acts that C.K. and S.B. committed with the boys. Id. at 18.

[8] The pre-sentence investigation report contained the probation department's recommendation that S.B. should serve consecutive terms of twelve years for each count, with three years suspended and three years on probation. Defense counsel argued: "We would suggest to the court that if the court is inclined to run the sentences consecutive, then we would suggest two eight-year sentences, execute one, but don't execute the other." Id. at 14.

[9] In sentencing S.B., the trial court found S.B.’s entry of a guilty plea, which spared her sons the trauma of a trial, and her lack of prior criminal history to be mitigating circumstances. As aggravating circumstances, the trial court identified: (1) the boys’ tender ages;³ and (2) S.B.’s violation of her position of trust as a mother by sexually abusing her sons and subjecting them to sexual abuse by C.K. The trial court imposed the following sentences, which the court ordered to be served consecutively: Count III, twelve years executed in the Department of Correction; and Count IV, twelve years, with nine years executed and three years suspended to supervised probation. Defense counsel did not object. S.B. now appeals.

Analysis

I. Consecutive Sentencing Statute

[10] S.B. argues that the trial court imposed consecutive terms of imprisonment that are not authorized pursuant to Indiana Code Section 35-50-1-2 (the "consecutive sentencing statute"). In its sound discretion, a trial court may impose consecutive or concurrent terms of imprisonment.

Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana Code Section 35-50-1-2(c), however, limits the court's discretion and specifies the parameters for ordering consecutive sentences for multiple crimes. "The legislature prescribes penalties for crimes, and the trial court's discretion does not extend beyond the statutory limits." Edwards v. State , 147 N.E.3d 1019, 1021 (Ind. Ct. App. 2020). "Therefore, in reviewing a sentence, we will consider whether it was statutorily authorized." Id.

[11] Specifically, S.B. argues the trial court erred in ordering consecutive sentences exceeding the statutory limit of fifteen years set by Indiana Code Section 35-50-1-2 because: (1) incest is not a "crime of violence" pursuant to Indiana Code Section 35-50-1-2(a) ; and (2) the offenses for which she was convicted arose from a single episode of criminal conduct.⁴ The entirety of S.B.’s argument in her brief alleging that the trial court abused its discretion consists of the following:

The stipulated factual basis evidence [sic] a single "episode of criminal conduct." ( I.C. 35-50-1-2(b) )[.] "Incest", defined I.C. 35-46-1-3, is not a "crime of violence" listed in I.C. 35-50-1-2(a) ; therefore, the maximum of consecutive sentences to which [S.B.] could have been sentenced is fifteen (15) years. I.C. 35-50-1-2(d)(3)....

S.B.’s Br. p. 6 (internal citation omitted). S.B. has failed to demonstrate, in his single-sentence argument that lacks any citation to authority, that the trial court exceeded its statutory authorization in sentencing S.B.

At the time of S.B.’s offenses, Indiana Code Section 35-50-1-2 provided, in part, as follows:

(a) As used in this section, "crimes of violence" means the following:

(1) Murder ( IC 35-42-1-1 ).

(2) Attempted murder ( IC 35-41-5-1 ).

(3) Voluntary manslaughter ( IC 35-42-1-3 ).

(4) Involuntary manslaughter ( IC 35-42-1-4 ).

(5) Reckless homicide ( IC 35-42-1-5 ).

(6) Battery ( IC 35-42-2-1 ) as a:

(A) Level 2 felony;

(B) Level 3 felony;

(C) Level 4 felony; or

(D) Level 5 felony.

(7) Aggravated battery ( IC 35-42-2-1.5 ).

(8) Kidnapping ( IC 35-42-3-2 ).

(9) Rape ( IC 35-42-4-1 ).

(10) Criminal deviate conduct ( IC 35-42-4-2 ) (before its repeal).

(11) Child molesting ( IC 35-42-4-3 ).

(12) Sexual misconduct with a minor as a Level 1 felony under IC 35-42-4-9(a)(2) or a Level 2 felony under IC 35-42-4-9(b)(2).

(13) Robbery as a Level 2 felony or a Level 3 felony ( IC 35-42-5-1 ).

(14) Burglary as a Level 1 felony, Level 2 felony, Level 3 felony, or Level 4 felony ( IC 35-43-2-1 ).

(15) Operating a vehicle while intoxicated causing death ( IC 9-30-5-5 ).

(16) Operating a vehicle while intoxicated causing serious bodily injury to another person ( IC 9-30-5-4 ).

(17) Child exploitation as a Level 5 felony under IC 35-42-4-4(b) or a Level 4 felony under IC 35-42-4-4(c).

(18) Resisting law enforcement as a felony ( IC 35-44.1-3-1 ).

(19) Unlawful possession of a firearm by a serious violent felon ( IC 35-47-4-5 ).

(b) As

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