Williams v. State

895 N.E.2d 377

Johanna P. WILLIAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 47A05-0802-CR-101.

Court of Appeals of Indiana.

October 28, 2008.

Nick J. Herthel, Herthel & Herthel, Bedford, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE¹

Appellant-Defendant, Johanna P. Williams (Williams), appeals her sentence for child molesting, as a Class C felony, Ind.Code § 35-42-4-3, and sexual misconduct with a minor, as a Class C felony, Ind.Code § 35-42-4-9, and the trial court's determination that she is a sexually violent predator (or SVP).

We affirm in part, reverse in part, and remand with instructions.

ISSUES

On appeal, Williams raises three issues with regard to her sentence, one of which we find to be dispositive:

(1) Whether her sentence violates the United States Supreme Court's opinion in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied.

Williams also raises two issues with regard to the trial court's SVP finding, which we restate as follows:

(2) Whether there is sufficient evidence to support the trial court's finding that Williams is a sexually violent predator; and

(3) Whether the application to Williams of the current statute requiring sexually violent predators to register as sex offenders for life violates the prohibition against ex post facto laws.

FACTS AND PROCEDURAL HISTORY²

In March of 2005, Williams, who was twenty years old at the time, had sexual encounters with P.N., who was under fourteen at the time, and A.T., who was fourteen at the time. Williams touched P.N.'s vagina and placed her mouth on A.T.'s penis. Both P.N. and A.T. lived with Williams' adoptive sister. P.N. is the daughter of Williams' adoptive sister, and A.T. had been placed in foster care with Williams' adoptive sister.³

On August 29, 2005, the State filed an Information charging Williams with Count I, child molesting, as a Class B felony, I.C. § 35-42-4-3, based on her conduct with P.N., and Count II, child molesting, as a Class B felony, I.C. § 35-42-4-3, based on her conduct with A.T. On October 12, 2005, the State amended Count II to allege sexual misconduct with a minor as a Class C felony, I.C. § 35-42-4-9, based on the ages of Williams (20) and A.T. (14) at the time of the offense. Finally, on November 13, 2006, following plea negotiations, the State amended Count I to allege child molesting as a Class C felony, I.C. § 35-42-4-3, based on Williams' conduct with P.N. Williams agreed to plead guilty to the amended charges, and the parties agreed that Williams' sentences would be served concurrently. The trial court accepted the plea agreement and set the matter for sentencing.

On July 11, 2007, while sentencing was still pending, the State moved to have Williams labeled as a sexually violent predator. The trial court appointed two psychologists, Dr. Lois Rifner (Dr. Rifner) and Dr. Lawrence Ewert (Dr. Ewert), to evaluate Williams to aid in the making of that determination. On October 11, 2007, Dr. Ewert filed his report with the trial court. In his report, Dr. Ewert opined that Williams "does not meet the criteria for being a Sexually Violent Predator. It does not appear likely that she will repeatedly engage in the offenses listed in the code definition of SVP. She most closely resembles the female sex offender types with low levels of risk to reoffend sexually." (Appellant's App. p. 227). On October 17, 2007, Dr. Rifner filed her report with the trial court. Dr. Rifner noted in her report that Williams had admitted that she had been engaged in sexual acts with P.N. for approximately ten years. Dr. Rifner diagnosed Williams with pedophilia, alcohol abuse, a personality disorder, and brain injuries and opined that "[s]he is at moderate risk to commit future sex offenses." (Appellant's App. pp. 243-44). However, Dr. Rifner did not reach a specific conclusion in her written report as to whether Williams should be classified as a sexually violent predator. After the reports were submitted, the trial court set a sentencing hearing and ordered Dr. Ewert and Dr. Rifner to appear to testify.

On February 6, 2008, the trial court held an SVP/sentencing hearing. Dr. Ewert and Dr. Rifner testified regarding Williams' SVP status. When asked whether she had come to a conclusion as to whether Williams is a sexually violent predator, Dr. Rifner testified, "I believe that she is." (Transcript p. 42). The trial court also heard from a few other witnesses, including Williams. At the end of the hearing, the trial court determined that Williams should be classified as a sexually violent predator. Then, in sentencing Williams for the underlying offenses, the trial court found one aggravating circumstance—Williams was in a position of trust with her victims—and one mitigating circumstance—Williams' lack of criminal history. Finding Williams' abuse of her position of trust to outweigh her lack of criminal history the trial court sentenced Williams to concurrent terms of seven years, with three years suspended to supervised probation, on each count.

Williams now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, Williams challenges her sentence, the trial court's finding that she is a sexually violent predator, and the consequent requirement that she register as a sex offender for life. Before we address the merits of the appeal, we note that Williams' attorney included a copy of the presentence investigation report on white paper in the Appellant's Appendix. In Hamed v. State, 852 N.E.2d 619, 621 (Ind. Ct.App.2006), we explained:

Ind. Appellate Rule 9(J) requires that "[d]ocuments and information excluded from public access pursuant to Ind. Administrative Rule 9(G)(1) shall be filed in accordance with Trial Rule 5(G)." Ind. Administrative Rule 9(G)(1)(b)(viii) states that "[a]ll pre-sentence reports pursuant to Ind.Code § 35-38-1-13" are "excluded from public access" and "confidential." The inclusion of the presentence investigation report printed on white paper in his appellant's appendix is inconsistent with Trial Rule 5(G), which states, in pertinent part:

Every document filed in a case shall separately identify information excluded from public access pursuant to Admin. R. 9(G)(1) as follows:

(1) Whole documents that are excluded from public access pursuant to Administrative Rule 9(G)(1) shall be tendered on light green paper or have a light green coversheet attached to the document, marked "Not for Public Access" or "Confidential."

(2) When only a portion of a document contains information excluded from public access pursuant to Administrative Rule 9(G)(1), said information shall be omitted [or redacted] from the filed document and set forth on a separate accompanying document on light green paper conspicuously marked "Not For Public Access" or "Confidential" and clearly designating [or identifying] the caption and number of the case and the document and location within the document to which the redacted material pertains.

We ask that counsel follow this procedure in the future.

I. Sentencing

Williams first challenges her sentence. Because she committed her offenses in March of 2005, before our current advisory sentencing scheme went into effect on April 25, 2005, she was entitled to be sentenced pursuant to the former presumptive sentencing scheme. See Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind.2007). Under that scheme, Indiana trial courts were constrained by the United States Supreme Court's decision in Blakely. Under Blakely, a court can enhance a sentence beyond the presumptive term based only on those facts that are established in one of the following ways: (1) as a fact of prior conviction; (2) by a jury beyond a reasonable doubt; (3) when admitted by the defendant; and (4) in the course of a guilty plea where the defendant has waived his or her rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and stipulated to certain facts or consented to judicial factfinding. Trusley v. State, 829 N.E.2d 923, 925 (Ind.2005).

Here, Williams was convicted of two Class C felonies. The Class C felony sentencing statute that was in effect at the time of Williams' offenses provided for a minimum sentence of two years, a maximum sentence of eight years, and a presumptive sentence of four years. I.C. § 35-50-2-6 (2004). The trial court imposed an enhanced term of seven years for each of Williams' Class C felonies, with those terms to run concurrently. Those enhancements were supported by a single aggravating circumstance: Williams was in a position of trust with her victims.

On appeal, Williams contends that the facts underlying that aggravator were not established in one of the ways discussed in Trusley and that, therefore, her sentence violates Blakely.⁴ The State, on the other hand, argues that Williams "admitted the essential facts leading to her enhanced sentence." (Appellee's Br. p. 6). We agree with Williams.

The State asserts:

[Williams] admitted that she molested her niece and a foster child living in her neighborhood. [Williams'] mother further testified that the niece was at times left in the care of [Williams]. This apparently resulted in roughly ten years of abuse. These facts were either admitted by [Williams] herself or presented to the trial court via defense witnesses at the sentencing hearing.

(Appellee's Br. p. 7). The first problem with the State's argument is that it does not include any citations to the record. The State apparently hopes that we will simply believe it or that we will do its homework. We decline to do either, and we refer the State to Indiana Appellate Rule 46, which requires that contentions on appeal be supported by cogent reasoning and citations to authorities and "the Appendix...