Bobby A. Harlan v. State of Indiana , 971 N.E.2d 163 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM S. FRANKEL, IV GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt, Attorney General of Indiana
Wilkinson & Drummy, LLP
Terre Haute, Indiana KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
FILED
Jul 19 2012, 9:35 am
IN THE CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
BOBBY A. HARLAN, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1110-CR-474
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause No. 84D03-0905-FA-1510
July 19, 2012
OPINION - FOR PUBLICATION
SULLIVAN, Senior Judge
Bobby A. Harlan appeals the sentence imposed upon his two convictions of child
molesting, both Class B felonies. Ind. Code § 35-42-4-3 (1981). Harlan also appeals the
trial court’s order that he register as a sexually violent predator (SVP). We affirm.
The relevant facts are not in dispute. Harlan and his wife frequently babysat
sisters L.G. and A.C. from 1986 through 1994. Once, when Harlan was babysitting L.G.
and no one else was present, Harlan watched a pornographic movie with L.G. and
induced her to put her mouth on his penis. In addition, he put his penis in L.G.’s vagina
on more than ten occasions. These incidents began when L.G. was four or five and ended
when she was eleven or twelve. L.G. viewed Harlan as a father figure, and he told her
not to tell anyone about his molestations because she could get in trouble and he could go
to jail.
In 2009, A.C. told the police about Harlan’s molestations of L.G. A.C. also told
the officers that Harlan had induced her to engage in sexual conduct when she was a
child, but the State ultimately chose not to file charges in relation to any acts Harlan
committed involving A.C. A.C. agreed to talk with Harlan while wearing a “wire,”
which consisted of a hidden microphone and a recorder. Sentencing Tr. p. 9. 1 On May
18, 2009, A.C. went to Harlan’s home while wearing the wire. The recorder
malfunctioned, but the microphone worked properly, and the police listened in on A.C.
and Harlan’s conversation. During the conversation, Harlan admitted to molesting L.G.
by having her kiss his penis on one occasion and by inserting his penis into L.G.’s vagina
1
We note that the volumes of the transcript are not consecutively paginated, in violation of Indiana
Appellate Rule 28(A)(2).
2
on another occasion. Later, an officer interviewed Harlan, and after the officer told
Harlan that he had overheard Harlan’s conversation with A.C., Harlan again admitted to
having L.G. place her mouth on his penis and to placing his penis in L.G.’s vagina.
The State charged Harlan with one count of child molesting as a Class A felony.
Subsequently, the State amended the information to reduce the count to a Class B felony
and to add a second count of child molesting as a Class B felony. The parties executed a
plea agreement, pursuant to which Harlan agreed to plead guilty to the two counts of
child molesting as Class B felonies. The parties further agreed that the executed portion
of Harlan’s sentence would not exceed fourteen years. At the guilty plea hearing, the
following discussion occurred:
STATE: Between January One (1), Nineteen-Eighty-Six (1986),
through and including December Thirty-First (31st),
Nineteen-Ninety-Two (1992), in Vigo County, State of
Indiana, Bobby A. Harlan was a person who, with a child
under twelve (12) years of age, to-wit, [L.G.], who was
between the ages of four (4) and ten (10), performed or
submitted to sexual intercourse or deviate sexual conduct
with the said [L.G.], in violation of the Indiana Code.
COURT: And you admit that Mr. Harlan?
HARLAN: Yes.
STATE: Count Two (2), between January First (1st), Nineteen-Ninety-
Two (1992), through and including December Thirty-First
(31st), Nineteen-Ninety-Four (1994), in Vigo County, State
of Indiana, Bobby A. Harlan was a person who, with a child
under fourteen years of age, to-wit, [L.G.], who was between
the ages of ten (10) and eleven (11), performed or submitted
to sexual intercourse or deviate sexual conduct with the said
[L.G.], in violation of the Indiana Code.
COURT: And you admit that Mr. Harlan?
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HARLAN: Yes.
Guilty Plea Hearing Tr. pp. 13-14. The trial court sentenced Harlan to ten years on each
count, to be served concurrently. The trial court further ordered Harlan to register as a
SVP. This appeal followed.
Harlan raises three issues, which we restate as:
I. Whether the trial court’s order requiring Harlan to register as a SVP
violates the ex post facto clause of the Indiana Constitution.
II. Whether the trial court abused its discretion in the course of identifying
aggravating and mitigating factors at sentencing.
III. Whether Harlan’s sentence is manifestly unreasonable.
I. INDIANA’S EX POST FACTO CLAUSE
Harlan argues that the trial court should not have required him to register as a SVP
because the statutes defining sex offenders and requiring them to register had not yet
been enacted when he committed his crimes. He concludes that the SVP requirement, as
applied to him, violates Article 1, Section 24 of the Indiana Constitution, also known as
the ex post facto clause.2
The ex post facto clause provides, in relevant part: “No ex post facto law . . . shall
ever be passed.” In general, the ex post facto clause forbids laws imposing punishment
for an act that was not otherwise punishable at the time it was committed or imposing
additional punishment for an act then proscribed. Lemmon v. Harris, 949 N.E.2d 803,
809 (Ind. 2011). When a party presents a claim under the ex post facto clause, our
2
Harlan does not present an ex post facto claim under the United States Constitution.
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inquiry focuses on whether a legislative change alters the definition of criminal conduct
or increases a penalty by which a crime is punishable, not on whether a legislative change
produces some sort of disadvantage. Simmons v. State, 962 N.E.2d 86, 90 (Ind. Ct. App.
2011). The party challenging the constitutionality of a statute bears the burden of proof.
Vickery v. State, 932 N.E.2d 678, 680 (Ind. Ct. App. 2010).
Our Supreme Court’s decision in Lemmon is pertinent to this case. In Lemmon,
Harris pleaded guilty in 1999 to child molesting as a Class B felony for acts that he
committed in 1997. Prior to Harris’ release on parole, the Indiana Department of
Correction informed him that he was required to register as a SVP. Harris conceded that
he was required to register as a sex offender for ten years pursuant to the laws in effect
when he committed his crimes. However, he argued that SVP requirements did not apply
to him because the SVP status was not created until 1998, and therefore those
requirements, as applied to him, violated Indiana’s ex post facto clause.
Our Supreme Court determined that the “intent-effects” test applied to Harris’
claim. 949 N.E.2d at 810. Under that test, the Court first decided whether the General
Assembly intended for SVP status and the accompanying registration requirements to
constitute a punishment, or whether the legislature intended to establish a nonpunitive
regulatory scheme. The Court noted that Harris had not provided any evidence of a
punitive intent on the part of the General Assembly with respect to the SVP statute. In
the lack of evidence to the contrary, the Court presumed that the legislature’s intent was
civil and regulatory rather than punitive.
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Next, the Court was required to determine whether, even though the legislature did
not intend to establish a punitive regime, the effects of the SVP regulatory scheme, as
applied to Harris, were nonetheless punitive and constituted an ex post facto punishment.
Seven factors are relevant to the determination:
1. whether the sanction involves an affirmative disability or restraint;
2. whether it has historically been regarded as punishment;
3. whether it comes into play only on a finding of scienter;
4. whether its operation will promote the traditional aims of
punishment—retribution and deterrence;
5. whether the behavior to which it applies is already a crime;
6. whether an alternative purpose to which it may rationally be
connected is assignable for it; and
7. whether it appears excessive in relation to the alternative purpose
assigned.
Id. Applying these factors to Harris’ case, our Supreme Court concluded: the SVP
requirements impose affirmative obligations upon Harris; the registration requirements
include a shaming component that has historically been regarded as punishment; the
registration requirement for Harris’ crime of child molesting as a Class B felony does not
include a scienter requirement; application of the SVP registration requirements promotes
retribution and deterrence, but Harris was in no worse of a position than if he were only
required to register for ten years under the sex offender statutes in effect when he
committed his crimes; the SVP requirement applies to criminal behavior, but in this
regard Harris was in the same position as if he was required to register for ten years under
the previous sex offender laws; the SVP designation and registration requirements
promote a legitimate, alternative purpose; and the SVP designation and registration
requirements are not excessive in relation to the legitimate regulatory purpose because:
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(a) Harris was already subject to registration requirements in any event; and (b) the SVP
statute provides a process by which Harris may ask to be no longer considered a SVP.
Weighing these factors, our Supreme Court determined that designating Harris as a SVP
and subjecting him to the associated registration requirements did not violate the ex post
facto clause.
Here, Harlan argues that Lemmon is distinguishable from his case. Harlan notes
that Harris conceded in Lemmon that he was subject to the sex offender registration
requirements that were in effect when he committed his crimes, but Harris argued that he
was not subject to the SVP requirements, which were enacted after he committed his
crimes. By contrast, Harlan contends that he committed his offenses before the General
Assembly enacted any sex offender registration requirements, so he has no obligation to
register at all, much less as a SVP. We disagree. The statutes collectively referred to as
the Indiana Sex Offender Registry Act first took effect on July 1, 1994. See 1994 Ind.
Acts 11, § 7; see also Wallace v. State, 905 N.E.2d 371, 374-75 (Ind. 2009) (noting that
sex offender registry requirements took effect in July 1994). In this case, when Harlan
pleaded guilty to the second count of child molesting as a Class B felony, he admitted
that he committed his crime between January 1, 1992, “through and including” December
31, 1994. Guilty Plea Hearing Tr. pp. 13-14. Thus, Harlan committed one of his child
molestation offenses during the period when the sex offender registry requirements were
in effect, and his attempt to distinguish Lemmon is not availing for him.
Next, we apply the analysis set forth in Lemmon to this case. We first consider
whether the General Assembly intended for SVP status and the accompanying
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registration requirements to constitute a punishment, or whether the legislature intended
to establish a nonpunitive regulatory scheme. As was the case in Lemmon, Harlan has
failed to provide any evidence or argument as to the General Assembly’s intent, so we
may presume that the legislature’s intent was “civil and regulatory.” Lemmon, 949
N.E.2d at 810.
For the second step of the analysis, we consider whether the effects of the SVP
determination and registration requirements upon Harlan are “in fact so punitive as to
transform the regulatory schedule into a criminal penalty” by applying the seven factors
identified in Lemmon. Id. If so, then retroactive application of the law to Harlan violates
the ex post facto clause.
Although in Healey v. State, 969 N.E.2d 607 (Ind. Ct. App. 2012), a different
panel of this Court very recently adopted the rationale followed in Lemmon and in Jensen
v. State, 905 N.E.2d 384 (Ind. 2009), a reasonable view might understand the merits of
the contrary position. One might legitimately question whether the extended period for
registration was not, in fact, an increase in the punitive impact of the registration for life
requirement. See Jensen, 905 N.E.2d at 396 (Boehm, J., dissenting, with then-Justice
Dickson); Lemmon, 949 N.E.2d at 816 (Dickson, J., dissenting). However, we are bound
by the cases as decided by our Supreme Court.
The current case resembles Lemmon in that Harlan is, by statute, a sex offender
and would be subject to registration requirements even if he were not a SVP.
Consequently, application of the seven factors results indicates the same outcome as in
Lemmon. While several of the factors lean toward treating SVP status as punitive as
8
applied to Harlan, our determination must be governed by the majority opinions in
Lemmon and Jensen.
Harlan asserts that his designation as a SVP contravenes our Supreme Court’s
holding in Wallace. That case is factually distinguishable. In Wallace, our Supreme
Court determined that requiring Wallace to register as a sex offender violated Indiana’s
ex post facto clause because he “was charged, convicted, and served the sentence for his
crime before the statutes collectively referred to as the Indiana Sex Offender Registration
Act were enacted.” 905 N.E.2d at 384. In this case, Harlan committed one of his crimes
after the sex offender registration requirements took effect. Therefore, Wallace does not
compel reversal of the trial court’s judgment. For these reasons, Harlan’s claim under the
Indiana ex post facto clause is to be rejected.
II. SENTENCING DISCRETION
Our standard for reviewing a sentence is well established. Sentencing is
conducted within the discretion of the trial court and will be reversed only upon a
showing of abuse of that discretion. Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992). It is
within the discretion of the trial court to determine whether a presumptive sentence will
be increased or decreased because of aggravating or mitigating circumstances. Id.
Here, Harlan claims that the trial court erred by citing his molestation of A.C. as
an aggravating circumstance because it is uncharged conduct and the statute of
limitations has expired on any criminal charges that could have been filed for that
conduct. Allegations of prior criminal activity need not be reduced to conviction before
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they may be properly considered as aggravating circumstances by a sentencing court.
Beason v. State, 690 N.E.2d 277, 281 (Ind. 1998).
In this case, the trial court identified as a statutory aggravator that Harlan
“occupied a position of trust and had the care, custody, and control of the victim in this
case at the time the offense occurred.” Sentencing Tr. p. 110. The trial court did not find
any other statutory aggravating factors, such as criminal history. Instead, the trial court
discussed “other aggravating circumstances that the Court may consider [to] exist.” Id. at
111. These factors included “that not only did Mr. Harlan molest L.G., that he also . . .
engaged in inappropriate conduct with and molested . . . the victim’s sister in this case.”
Id. at 111-12. The trial court’s identification of Harlan’s acts against A.C. as an
aggravating circumstance follows precedent, as the trial court did not identify those acts
as part of a criminal history, but rather as a nonstatutory aggravating factor. See Singer
v. State, 674 N.E.2d 11, 14-15 (Ind. Ct. App. 1996) (concluding that the trial court did
not abuse its discretion during sentencing by citing as an aggravating factor Singer’s
uncharged acts of violence against his children).
With respect to the statute of limitations, Harlan states that “to consider as an
aggravating factor evidence of a crime whose statute of limitation has expired is
tantamount to allowing prosecution of the crime.” Appellant’s Br. p. 13. He cites no
authority to support this claim. The primary purpose of statutes of limitation is to protect
defendants from the prejudice that a delay in prosecution could bring, such as fading
memories and stale evidence. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). Here,
Harlan was not subjected to a delayed prosecution for molesting A.C. Instead, the trial
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court merely noted his acts against A.C. in the course of sentencing Harlan for his crimes
involving L.G. We conclude that the trial court did not abuse its discretion by citing his
conduct with A.C. as an aggravating factor.
Next, Harlan argues that the trial court overlooked several mitigating factors. A
trial court must consider the mitigating factors presented by a defendant, but a finding of
mitigating circumstances is discretionary, not mandatory. Cook v. State, 612 N.E.2d
1085, 1090 (Ind. Ct. App. 1993). An abuse of discretion occurs in this context when the
trial court issues a sentencing statement that omits mitigating factors that are clearly
supported by the record and advanced for consideration. Anglemyer v. State, 868 N.E.2d
482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007).
Harlan asserts that the trial court failed to properly consider his lack of a criminal
history and his remorse. To the contrary, the trial court identified Harlan’s lack of a
criminal history as a mitigating factor, but “in light of the other uncharged criminal
conduct, I’m not certain that it’s much of . . . a mitigating factor.” Sentencing Tr. p. 113.
In addition, the trial court determined that Harlan’s remorse was a mitigating factor, but
“I don’t find it particularly compelling to grant significant weight to [it].” Id. at 114. A
sentencing court is not obligated to weigh or credit facts proffered as mitigating by the
defendant in the way that the defendant suggests they should be weighed or credited.
Heyen v. State, 936 N.E.2d 294, 304-05 (Ind. Ct. App. 2010), trans. denied. We find no
abuse of discretion here.
Harlan also claims that the trial court should have found as mitigating
circumstances that his crimes were the result of circumstances unlikely to recur and that
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his character and attitude are such that he is unlikely to commit another crime. We
cannot conclude that these mitigating circumstances are supported by the record. Harlan
molested L.G. repeatedly over a span of years despite having ample opportunity to end
his abusive behavior. Furthermore, L.G. spoke with Harlan over the phone once several
years after the molestations had ended, and she perceived that he was asking her to
continue to conceal his crimes. Finally, Harlan initially denied molesting L.G. when he
was approached by A.C. and the police. Harlan’s attempts to avoid responsibility for his
crimes indicate that he has not necessarily changed his behavior and would not
necessarily refrain from committing similar crimes if presented with another opportunity.
Finally, Harlan argues that the trial court should have determined that his
cooperation with law enforcement was a mitigating factor. We cannot conclude that this
factor is supported by the record. When a police officer spoke with Harlan about A.C.’s
allegations, Harlan denied any wrongdoing until the officer told Harlan that he had
listened in on Harlan’s conversation with A.C. At that point, Harlan may have concluded
that he was caught and chose to cooperate with the police out of pragmatism.
We conclude that the trial court did not abuse its discretion in the course of
identifying and weighing aggravating and mitigating factors.
III. REASONABLENESS OF SENTENCE
A sentence authorized by statute will not be revised except where the sentence is
manifestly unreasonable. Sims, 585 N.E.2d at 272. A sentence is not manifestly
12
unreasonable unless no reasonable person could find such sentence appropriate to the
particular offense and offender for which such sentence was imposed.3 Id.
To assess the the sentence, we look first to the statutory range established for the
class of the offenses. Here, during the period in which Harlan committed his crimes, the
fixed sentence for a Class B felony was ten years, with not more than ten years added for
aggravating factors or not more than four years subtracted for mitigating factors. Ind.
Code § 35-50-2-5 (1977).4 Harlan received the presumptive sentence of ten years for
each conviction, to be served concurrently.
Next, we look to the nature of the offenses and the character of the offender.
Regarding the nature of the offenses, Harlan repeatedly molested L.G. over a period of
years while she was in his care. L.G. considered Harlan to be a father figure. In addition,
Harlan groomed L.G. for sexual conduct by showing her pornographic movies and
magazines. Harlan notes that none of the incidents involved violence, but Harlan told
L.G. several times not to tell others what he had done or she could get in trouble and he
could go to jail.
Regarding the character of the offender, Harlan notes that he has no criminal
history. However, his lack of criminal convictions is offset by his repeated molestations
3
If Harlan had committed his crimes more recently, his challenge to the propriety of his sentence would
be governed by Indiana Appellate Rule 7(B), which requires the reviewing court to determine if a
sentence is inappropriate in light of the nature of the offense and the character of the offender. However,
Harlan’s sentence must be judged by the standards that were in effect when he committed his crimes. See
Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009) (“The law [that] is in effect at the time that the
crime was committed is controlling.”), trans. denied.
4
At sentencing, the trial court stated that the parties “stipulated” that “the presumptive sentence was ten
years and the range is six to fourteen.” Sentencing Tr. pp. 109-10. However, the State had agreed only
that “the Court is allowed to take off up to six [years] for mitigating factors.” Id. at 94.
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of L.G. over a lengthy period of time. Harlan also asserts that he was “forthright” with
the police. Appellant’s Br. p. 22. We note that Harlan only admitted his crimes to the
police once the officer told Harlan that the police had heard Harlan’s conversation with
A.C. Furthermore, when A.C. initially confronted Harlan about his molestation of her
and L.G., he tried to place the blame upon her, alleging that she “came onto” him.
Sentencing Tr. p. 38. Harlan has failed to convince us that his presumptive concurrent
sentence is manifestly unreasonable.
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
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