Joseph Pennington v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Apr 23 2014, 9:58 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRIS M. TEAGLE GREGORY F. ZOELLER
Muncie, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSEPH PENNINGTON, )
)
Appellant-Defendant, )
)
vs. ) No. 05A02-1309-CR-823
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BLACKFORD CIRCUIT COURT
The Honorable Dean A. Young, Judge
Cause No. 05C01-1301-FB-6
April 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Joseph Pennington appeals his sentence for sexual misconduct with a minor as a
class B felony. Pennington raises three issues, which we restate as:
I. Whether the trial court erred in failing to provide Pennington’s
defense counsel an adequate opportunity to address the presentence
investigation report (the “PSI”) and present a final argument; and
II. Whether his sentence is inappropriate in light of the nature of the
offense and his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
Pennington, who was a youth leader at a church S.W. attended, had sexual
intercourse with and performed or submitted to deviate sexual conduct with S.W. a
number of times when she was fifteen years old. On January 4, 2013, the State charged
Pennington with three counts of sexual misconduct with a minor as class B felonies. On
August 8, 2013, a written plea agreement was filed pursuant to which Pennington agreed
to plead guilty to one count of sexual misconduct with a minor as charged and the State
agreed to dismiss the other counts. The plea agreement also provided that Pennington’s
executed time would not exceed eight years. On September 17, 2003, the trial court
accepted Pennington’s guilty plea and held a sentencing hearing. The court found the
facts that Pennington had no prior criminal history and that a long term of incarceration
would constitute a hardship on his wife and minor child to be mitigating circumstances.
The court also found that Pennington’s victimization of the child was continuous,
approximating a period of one and one-half years, that he was advised by his pastor early
on to discontinue any further involvement with S.W. which involvement began when
S.W. was fourteen years of age, that Pennington was a youth pastor for his church where
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he met S.W., and that fact that his responsibility was to provide religious counseling and
guidance for young people to be aggravating circumstances. The court sentenced
Pennington to fifteen years with eight years executed in the Department of Correction
and seven years suspended to probation. The court later found Pennington to be a
sexually violent predator.
DISCUSSION
I.
The first issue is whether the court erred in failing to provide Pennington’s defense
counsel an adequate opportunity to address the PSI and present a final argument.
Pennington contends that the trial court committed two errors in conducting the
sentencing hearing. First, he argues the court failed to allow defense counsel the
opportunity to address the information in the PSI that he believed should not be
considered by the court. Specifically, he claims that, while the court stated at one point
during the hearing that his request to discuss the information would be addressed at a
later point, defense counsel was never given that opportunity. Second, Pennington
asserts the court erred in failing to allow his defense counsel to make a final argument at
the sentencing hearing, and he requests that we remand for a new sentencing hearing.
The State maintains that Pennington testified about several matters in the PSI, he
acknowledged that the factual history of the PSI was accurate, he was given the
opportunity to raise any issues that remained immediately before the trial court
pronounced its sentence, and he affirmatively declined that opportunity. The State also
argues that Pennington declined the opportunity to make argument when offered by the
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court and that the court asked whether Pennington had any additional evidence he would
like to present, intended to offer any statement in allocution, or raise anything else before
the court pronounced its sentence, and Pennington declined. In his reply brief,
Pennington argues the court asked if he wanted to make a statement on his own behalf
but that this was not the same as permitting his counsel to make a final argument on his
behalf.
With respect to the PSI, Ind. Code § 35-38-1-8(a) provides in part that “a
defendant convicted of a felony may not be sentenced before a written presentence report
is prepared by a probation officer and considered by the sentencing court.” The contents
of the PSI must be disclosed to the convicted person, and the convicted person should be
afforded a fair opportunity to controvert the material contained within the report.
Carmona v. State, 827 N.E.2d 588, 598-599 (Ind. Ct. App. 2005). With respect to the
final argument, Ind. Code § 35-38-1-5 provides in part that the court “shall afford counsel
for the defendant an opportunity to speak on behalf of the defendant” and that “[t]he
defendant may also make a statement personally in the defendant’s own behalf and,
before pronouncing sentence, the court shall ask the defendant whether the defendant
wishes to make such a statement.”
The record reveals that, prior to accepting Pennington’s guilty plea, the court
asked defense counsel to establish the facts, and defense counsel questioned Pennington
regarding the facts. Following the presentation of the factual basis, the court noted that it
had directed the preparation of the PSI and that it had been filed with the court. The
court asked Pennington and his counsel “Do you know of any changes of form or other
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matters that need to be addressed,” and defense counsel replied “Well, there is just a
couple statements in here that I would ask that the Court not consider.” Transcript at 12.
The court stated “Okay. We’ll take that up, then, during the presentation of evidence,”
and defense counsel stated “But, uh, but as far as the factual history, it’s all accurate.” Id.The court asked Pennington if there was anything he wished to present before the court
accepted or rejected the plea, and Pennington did not have anything further. The court
accepted Pennington’s plea of guilty and entered judgment of conviction accordingly.
The court then stated that it would proceed with sentencing and asked defense
counsel if he had any witnesses, and defense counsel began by presenting the testimony
of Pennington. Defense counsel asked “this is in the [PSI], you’ve never been in any
kind of criminal trouble before, correct,” and Pennington replied “None whatsoever.” Id.
at 15. Defense counsel further stated “this is mentioned in the [PSI], you have, did some
counseling at Family Services Society, correct,” and Pennington responded affirmatively.
Id. at 16. On cross-examination, the State said “We have our statement, it’s in the [PSI],
but I just want to make sure and hit a couple of points” and then asked about how
Pennington knew S.W. Id. at 17. Pennington explained that he and S.W. attended the
same church, that he became a youth pastor, and that she was a member of the youth
group. In addition to Pennington’s testimony, defense counsel presented the testimony of
Pennington’s wife, his stepfather-in-law, and his brother, and the State presented the
testimony of S.W.’s mother, who read a statement prepared by S.W. Following the
presentation of testimony, the court asked “Any further evidence you want to present at
this time, [defense counsel],” and defense counsel responded “No.” Id. at 40. The court
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stated “Alright. [] Pennington is entitled to make a statement in allocution. Does he want
to say anything at this time before sentence is pronounced,” and defense counsel stated
“No, sir.” Id. The court stated “Nothing else,” and defense counsel stated “He doesn’t
have anything else.” Id. The court then found mitigating and aggravating circumstances
and sentenced Pennington.
Based upon the record, we cannot say that the trial court denied Pennington or his
defense counsel an adequate opportunity to contest any statements in the PSI or to present
a final argument. Pennington does not demonstrate any error or that he was prejudiced
and is not entitled to reversal of his sentence or a new sentencing hearing on these bases.
See Hardy v. State, 436 N.E.2d 837, 840 (Ind. Ct. App. 1982) (holding that the defendant
failed to show any prejudice where the defendant argued he was not afforded an
opportunity to contest a statement in a presentence report).
II.
The next issue is whether Pennington’s sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides
that we “may revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Under this rule, the burden is on the defendant
to persuade the appellate court that his or her sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
In support of his claim that his sentence is inappropriate, Pennington argues that
he did not use any weapons in the commission of the offense, the victim appears to have
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recovered from the crimes as shown by the fact that her relationships with her parents
have been repaired, he had no prior criminal convictions, there were positive statements
about him as a father and son-in-law, he showed remorse and apologized to the victim
and her family, and he had been gainfully employed throughout his adult life. He
requests this court to revise his sentence to the advisory sentence of ten years with six
years on electronically monitored home detention and four years suspended.
The State argues that Pennington used his position as a youth pastor at his church
to groom and sexually victimize a fifteen-year-old girl, his grooming of her began when
she was fourteen, and that despite being told that he was not to have contact with S.W.,
within two months Pennington was kissing, fondling, and having intercourse with her.
The State notes that Pennington had sex with S.W. on ten to twelve occasions at a park,
in his car, at his place of employment, and at S.W.’s house, that they had oral sex at least
a dozen times, and they exchanged nude photographs via text messages. The State argues
that S.W. gave Pennington a “hand job” on a church bus while Pennington’s wife was on
the bus. Appellee’s Brief at 11. The State points to the facts that, as a result of the
relationship, S.W. grew estranged from her parents and careless in her schoolwork, she
routinely lied about who she was talking to on the phone, she avoided visits with her
father because she did not wish to be away from Pennington, her grades suffered, and
that, when he finally broke off the relationship, she realized he had been manipulating
her. The State points out that S.W. received psychiatric treatment and that the ongoing
nature of the sexual predation, the level of manipulation, and the lasting impact on S.W.
all show that the nature of the offense is deserving of an enhanced sentence.
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Our review of the nature of the offense reveals that Pennington met S.W. when she
was fourteen and began to attend the youth group where he was a youth pastor.
According to the report of the probation department, a neighbor witnessed inappropriate
contact between Pennington and S.W., and Pennington was told by the church leadership
that he was never to be alone with S.W. Pennington stated that S.W. was fifteen years
old when they first had sexual intercourse, and that they had intercourse on “at least ten
to twelve occasions,” including at his place of employment at the time, in his car, and at
S.W.’s house. Appellant’s Confidential Appendix at 8. Pennington also stated that he
and S.W. “had oral sex ‘at least a dozen times,’” and that “there was ‘mutual fondling’ on
numerous occasions.” Id. The report also indicated that S.W. gave him a “hand job” in
the church van when they, along with several other youths, adults, and Pennington’s wife,
were in the vehicle traveling home from a concert. Id. Pennington also stated that he and
S.W. “sent nude pictures of themselves via text messages . . . ten (10) to twelve (12)
times.” Id.S.W.’s mother read a statement prepared by S.W. in which she stated that
Pennington was thirty years old when S.W. was fourteen years old, Pennington
manipulated her and made her believe they would eventually have a future together, they
discussed the number of kids they would have together and their children’s names,
Pennington was a youth pastor and had a full-time government job, S.W. started to fight
with her mother, S.W. avoided seeing her father because she did not want to miss a
moment with Pennington, she lied about who she was texting, she stopped caring about
her schoolwork and her grades suffered, and that, in hindsight, she was the only one
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being truthful with her feelings. S.W. described the impact Pennington had on her and
her family and how her relationships with her family and friends have improved
dramatically since Pennington has not been in her life, and said she received counseling
related to Pennington’s involvement with her.
Our review of the character of the offender reveals that Pennington’s wife and
stepfather-in-law made positive statements about Pennington being a good father to his
daughter, Pennington’s wife stated she would not be able to meet her household expenses
by herself, and that Pennington’s brother indicated he was willing to let Pennington work
for him if that would help. The PSI indicates that Pennington had no prior criminal
convictions, and he apologized to S.W.’s family at sentencing. According to the report of
his interview with the probation department, he stated that, shortly after he ended his
relationship with S.W., he began an affair with a married woman who also attended his
church and was also a youth leader.
After due consideration of the trial court’s decision, and in light of the protracted
nature of Pennington’s sexual relationship with S.W., we conclude that Pennington has
not met his burden of showing that the sentence imposed by the trial court is
inappropriate in light of the nature of the offense and his character.
CONCLUSION
For the foregoing reasons, we affirm Pennington’s sentence for sexual misconduct
with a minor as a class B felony.
Affirmed.
VAIDIK, C.J., and NAJAM, J., concur.
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