David A. Penfold v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 29 2016, 9:20 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Douglas S. Walton Gregory F. Zoeller
Walton Law Office Attorney General of Indiana
Evansville, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David A. Penfold, December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
63A01-1606-CR-1436
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Judge
Appellee-Plaintiff. Trial Court Cause No.
63C01-1408-F4-374
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 1 of 4
Statement of the Case
[1] David A. Penfold appeals his sentence for child solicitation, as a Level 4 felony,
following his guilty plea. Penfold raises a single issue for our review, namely,
whether the advisory sentence is inappropriate in light of the nature of Penfold’s
offense and his character. We affirm.
Facts and Procedural History
[2] In May of 2014, Penfold, a twenty-three-year-old male who lived in Hebron,
Indiana, sent a number of sexually explicit messages over the internet to a
person whom he believed to be a fourteen-year-old female. That person was
really an adult “decoy” associated with “the Perverted Justice Organization.”
Appellant’s App. Vol. II at 20. At some point, the decoy informed local police
officers about Penfold’s attempted solicitations, and they monitored and
recorded Penfold’s communications. After three months, in August Penfold
arranged to meet with the decoy. Penfold arrived at a predetermined location
at a scheduled time, and local police arrested him.
[3] The State charged Penfold with two counts of child solicitation, as Level 4
felonies. On September 14, 2015, Penfold pleaded guilty, pursuant to a written
plea agreement, to one of the charges and, in exchange, the State dismissed the
other charge. Pursuant to his plea agreement, Penfold agreed to leave
sentencing open to the trial court’s discretion so long as the court did not
sentence him to more than seven years executed in the Department of
Correction.
Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 2 of 4
[4] The court accepted Penfold’s plea agreement and held a sentencing hearing.
Following that hearing, the court found as an aggravator that Penfold was a
“high risk to reoffend.”1 Appellant’s App. Vol. III at 36. As mitigators, the
court found that Penfold “has no history of delinquency or criminal activity”
and that he “has accepted responsibility for his actions and has plead[ed] guilty
and saved the Court time and resources.” Id. The court concluded that the
aggravating and mitigating factors were in equipoise and, as such, ordered
Penfold to serve the advisory sentence of six years. This appeal ensued.
Discussion and Decision
[5] Penfold contends that his six-year sentence is inappropriate in light of the
nature of the offense and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “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.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
1
In his brief, Penfold asserts that “the only apparent support for that finding is that Mr. Penfold committed a
sexual offense” and that the trial court “assume[d] a high risk to re-offend . . . simply because a sexual offense
is at issue.” Appellant’s Br. at 8-9. Penfold’s assertions are plainly contrary to the record. The trial court
expressly relied on the Indiana Risk Assessment System’s evaluation of Penfold, which unambiguously
labeled him “in the HIGH risk category to reoffend.” Appellant’s App. Vol. III at 46.
Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 3 of 4
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[6] On appeal, Penfold asserts that the advisory sentence is inappropriate in light of
the nature of the offense because “[t]here was no victim in this case.”
Appellant’s Br. at 9. And Penfold asserts that his sentence is inappropriate in
light of his character based on his lack of criminal history, his evidence of
mental health issues, and his evidence that there is a low likelihood that he will
reoffend. We cannot agree.
[7] Regarding the nature of the offense, Penfold spent three months attempting to
solicit a fourteen-year-old female to engage him in various sexual acts.
Penfold’s messages were explicit and detailed, and it is not to his benefit that he
was unable to complete his attempted crime simply because the person with
whom he was communicating was not who he thought she was. Regarding his
character, the record demonstrates that he is a high risk to reoffend. Further,
the trial court has considered and rejected Penfold’s evidentiary arguments, and
we will not reconsider the trial court’s assessment on appeal. We cannot say
that the advisory sentence of six years is inappropriate in light of the nature of
Penfold’s offense and his character and, thus, we affirm his sentence.
[8] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 4 of 4