Kevin M. Plummer v. State of Indiana (mem. dec.) ( 2015 )

Jun 30 2015, 10:10 am
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before 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
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin M. Plummer, June 30, 2015
Appellant-Defendant, Court of Appeals Cause No.
01A02-1411-CR-824
v. Appeal from the Adams Superior
Court.
State of Indiana, The Honorable Patrick R. Miller,
Judge.
Appellee-Plaintiff.
Cause No. 01D01-1301-FA-1
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Kevin M. Plummer (Plummer), appeals his sentence and
order for restitution following his guilty plea for child molesting, a Class C
felony, Ind. Code § 35-42-4-3 (2013).
[2] We affirm in part, reverse in part, and remand with instructions.
ISSUES
[3] Plummer raises two issues on appeal, which we restate as follows:
(1) Whether his maximum sentence of eight years was appropriate in
light of the nature of the offense and his character; and
(2) Whether the trial court abused its discretion when it ordered Plummer
to pay restitution in the amount of $3,068.68.
FACTS AND PROCEDURAL HISTORY
[4] Between February and May of 2012, Plummer exercised his weekend parenting
time with his minor daughter, V.P., who was then thirteen years old. After her
younger half-siblings would go to sleep, Plummer required V.P. to dress in
“weird” clothing: lingerie, a feather boa, thigh high nylons, high heels, and
short skirts. (Appellant’s App. p. 328). During one weekend, Plummer showed
V.P. a bag containing thongs of various colors, which were “for her to wear in
the future.” (Appellant’s App. p. 328). If V.P. refused to change, Plummer
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would yell at her and ball his fist. V.P. complied so “she would not get hurt.”
(Appellant’s App. p. 328). After she was dressed, Plummer told her to sit on
the couch next to him. With each parenting time, Plummer’s attire diminished,
ranging from pajama bottoms, to boxer shorts, to a lime green thong.
[5] On one occasion, Plummer asked V.P. to remove his boxer shorts, which she
refused. After he had removed the boxer shorts himself, Plummer began
rubbing her leg with his hand. Another time, Plummer came into V.P.’s
bedroom naked and demanded that she get on the couch where he rubbed his
penis on her. During a parenting time weekend in March of 2012, Plummer
removed his clothing, rubbed his penis back and forth on V.P.’s vagina and, in
doing so, penetrated her vagina. Plummer insisted that V.P. keep quiet about
the clothing and his actions.
[6] On June 5, 2012, the State filed an Information, charging Plummer with Count
I, child molesting, a Class A felony; Count II, incest, a Class B felony; and
Count III, performing sexual conduct in the presence of a minor, a Class D
felony. On September 22, 2014, the day before his trial, Plummer entered into
a plea agreement with the State pursuant to which he agreed to plead guilty to
an amended charge of Class C felony child molesting in exchange for the State
dismissing the other Counts, with sentencing left to the discretion of the trial
court. On October 31, 2014, the trial court conducted a sentencing hearing. At
the close of the evidence, the trial court sentenced Plummer to eight years
executed at the Department of Correction and ordered him to pay restitution in
the amount of $3,068.68.
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[7] Plummer now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Appropriateness of Sentence
[8] Plummer contends that his sentence is inappropriate in light of the nature of the
offense and his character. Although a trial court may have acted within its
lawful discretion in imposing a sentence, Indiana Appellate Rule 7(B) provides
that an appellate 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.” Upon reviewing a sentence for appropriateness, an appellate court
does not merely substitute its judgment for that of the trial court; instead, we are
required to give the trial court’s decision “due consideration.” Akard v. State,
937 N.E.2d 811, 813 (Ind. 2010). Thus, the “principal role of appellate review
should be to attempt to leaven the outliers, and identify some guiding principles
for trial courts and those charged with improvement of the sentencing statutes,
but not to achieve a perceived correct result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). Therefore, the question under Appellate Rule
7(B) is “not whether another sentence is more appropriate” but rather “whether
the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind.
Ct. App. 2008). Whether this court regards a sentence as appropriate at the end
of the day turns on our sense of the culpability of the defendant, the severity of
the crime, the damage done to others, and myriad other facts that come to light
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in a given case. Suprenant v. State, 925 N.E.2d 1280, 1284 (Ind. Ct. App. 2010),
trans. denied. Nonetheless, the defendant has the burden of persuading us that
his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). As such, a defendant must establish that his sentence is inappropriate
both in light of his character and the nature of the offense. Williams v. State, 891
N.E.2d 621, 633 (Ind. Ct. App. 2008).
[9] Here, Plummer pled guilty to child molesting as a Class C felony. The advisory
term for a Class C felony is four years with the minimum and maximum terms
being two and eight years, respectively. I.C. § 35-50-5-6 (2013). At the
sentencing hearing, the trial court imposed the maximum sentence of eight
years.
[10] With respect to the nature of Plummer’s offense, we note at the outset that
“[c]rimes against children are particularly contemptible.” Walker v. State, 747
N.E.2d 536, 538 (Ind. 2001). Plummer’s crime is even more despicable in light
of V.P.’s grooming over a period of four months and his insistence that she
wear “weird” clothing. (Appellant’s App. p. 328). Plummer’s increasingly
sexualized behavior with his daughter not only destroyed V.P.’s childhood but
also damaged the relationship with her half-siblings and her stepfather. During
the two years preceding the guilty plea, V.P. was called a “liar,” and she blames
herself for having “ripped [her] family apart and [she’s] the one who can’t take
it back.” (Transcript p. 135). Despite these overwhelming feelings of guilt, she
is “still glad [she] told.” (Tr. p. 135). During the sentencing hearing, V.P.
divulged of being “broken because of this.” (Tr. p. 136) “To this day, [she] is
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deathly scared of men. [She] would come home every weekend and hide in
[her] room because [she] thought [her] step-dad would do the same thing. . . .
So [she’d] come home and hide but that fear never went away.” (Tr. p. 136).
As explained by V.P.’s mother, Plummer’s actions had a devastating impact on
the entire family:
The whole dynamic of our family has changed. Little things that we
took for granted, impulsive hugs, sneak up behind and tickling sides.
The loss of a special friendship. The anger towards anyone and
everyone. The isolation and fear. I watched my beautiful little girl
turn into an angry young woman. . . . She started wearing long sleeve
shirts or jackets all the time. Now I know it was because she felt dead
inside. She used a piece of glass to cut her arms. She just wanted to
feel something.
(Tr. p. 137).
[11] Turning to his character, we note that Plummer does not have a criminal
history. Even though Plummer was originally charged with a Class A felony
child molesting, as a benefit to pleading guilty the Class A felony was amended
to a Class C felony, resulting in a significant sentence reduction. While we
agree with Plummer that there is an absence of physical injuries, we cannot
ignore the pattern of grooming a young child to submit to unwanted touches to
satisfy the perpetrator’s own sexual pleasures and the resulting emotional toll
on V.P. He violated the love and trust a daughter bestows on her father to more
easily commit these crimes. We disagree with Plummer’s suggestion that by
pleading guilty, he “extended a substantial benefit to the State.” (Appellant’s
Br. p. 12). In fact, by pleading guilty the day before the trial was scheduled to
commence, he forced the victim and her family to live through the preparations
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and stress of a pending jury trial. In light of the evidence before us, we
conclude that Plummer’s eight-year sentence is appropriate in light of the
nature of the offense and his character.
II. Restitution
[12] Next, Plummer asserts that the trial court abused its discretion when it ordered
Plummer to pay restitution in the amount of $3,068.68. Specifically, Plummer
asserts that a mere notation by a probation officer of a victim’s desire to seek
restitution without offering any underlying supporting evidence at trial, is not
sufficient to justify a restitution award. In response, the State asserts that
because Plummer failed to object to the restitution order during the sentencing
hearing, he has waived the issue for our review.
[13] This court has long held that a defendant who fails to object at trial to the entry
of a restitution order or to the admission of evidence concerning the amount of
restitution waives appellate review of the issue. See Long v. State, 867 N.E.2d
606, 618 (Ind. Ct. App. 2007). However, as this court has recently noted, “the
vast weight of the recent caselaw in this state indicates that appellate courts will
review a trial court’s restitution order even where the defendant did not object
based on the rationale that a restitution order is part of the sentence, and it is
the duty of the appellate courts to bring illegal sentences into compliance. See,
e.g., Rich v. State, 890 N.E.2d 44, 48 (Ind. Ct. App. 2008). We agree with the
weight of authority and will therefore proceed to address Plummer’s argument
on the merits.
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[14] Plummer argues that the State did not submit any evidence to establish the
victim’s loss and to support the trial court’s order of restitution. “The purpose
of a restitution order is to impress upon the criminal defendant the magnitude
of the loss he has caused and to defray the costs to the victims caused by the
offense.” Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct. App. 2006). It is
within the trial court’s discretion to order restitution, and we will reverse only
for an abuse of that discretion. Id. An abuse of discretion occurs if the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it, or if the trial court misinterprets or misapplies the law.
Id.
[15] Indiana Code section 35-50-5-3(a)(2) provides that, in addition to any sentence
imposed for a felony or misdemeanor, a court may order the payment of
restitution to the victim of the crime. “The court shall base its restitution order
upon a consideration of: (2) medical and hospital costs incurred by the victim
(before the date of sentencing) as a result of the crime[.]” I.C. § 35-50-5-3(a)(2).
Thus, a trial court’s restitution order must be supported by sufficient evidence of
a victim’s actual loss. Rich, 890 N.E.2d at 49. We have previously held that
“the amount of actual loss is a factual matter that can be determined only upon
a presentation of the evidence.” Bennet v. State, 862 N.E.2d 1281, 1286 (Ind. Ct.
App. 2007). “Evidence supporting a restitution order is sufficient ‘if it affords a
reasonable basis for estimating loss and does not subject the trier of fact to mere
speculation or conjecture.’” J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App.
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2011) (quoting M.L. v. State, 838 N.E.2d 525, 528 (Ind. Ct. App. 2005), trans.
denied)).
[16] Here, the only evidence before the trial court was the probation officer’s
unsupported assertion that the “victim did not provide any statement, but
requests $3,068.68 in restitution.” (Appellant’s App. p. 321). During the
sentencing hearing, the trial court noted on the basis of the pre-sentence
investigation report that “the victim [has] asked for restitution in this matter in
the sum of $3,068.68. I’ve heard no testimony or, or opposition to that so I’m
going to go ahead and order that to be due and owing[.]” (Tr. p. 147). In
support of the amount, the State now refers to V.P.’s mother’s testimony that
V.P. had to visit “countless doctor’s appointments, psychiatrists and she’s
needed some unnecessary procedures done.” (Tr. p. 138).
[17] Without any further evidence or supporting documentation that the award
covers “costs to the victim caused by the offense,” the amount is merely based
on “speculation or conjecture” and insufficient to support the restitution award.
See Henderson, 848 N.E.2d at 346; J.H., 950 N.E.2d at 734. Therefore, finding
that the trial court abused its discretion, we reverse the restitution order but
remand the cause to the trial court to conduct a new restitution hearing. See,
e.g., T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct. App. 2005) (concluding that
there was an inadequate factual basis for the trial court’s restitution order and
remanding for a new restitution hearing).
CONCLUSION
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[18] Based on the foregoing, we conclude that Plummer’s sentence was appropriate
pursuant to Appellate Rule 7(B), but we reverse the restitution order and
remand to the trial court with instructions to conduct a new restitution hearing.
[19] Affirmed in part, reversed in part, and remanded with instructions.
[20] Bailey, J. and Barnes, J. concur
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