Padgett v. State
| Decision Date | 23 October 2007 |
| Docket Number | No. 29A02-0704-CR-305.,29A02-0704-CR-305. |
| Citation | 875 N.E.2d 310 |
| Parties | Jeffrey PADGETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Carl Epstein, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Jeffrey Padgett (Padgett), appeals his convictions for child molesting, as a Class A felony, Ind.Code § 35-42-4-3(a)(1), and sexual misconduct with a minor, as a Class B felony, I.C. § 35-42-4-9(a)(1).
We affirm.
Padgett raises two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion in sentencing Padgett by failing to find certain mitigating circumstances and identifying one improper aggravating circumstance; and (2) Whether the trial court: (a) failed to follow proper procedure, and (b) violated the federal Constitution's prohibition against ex post facto laws in determining that Padgett is a sexually violent predator under I.C. § 35-38-1-7.5 (2006).
Over a three-year period, Padgett, an adult, engaged in sexual contact with Z.W., a minor. Specifically, from October 2001 to October 2002, on more than one occasion per week, Padgett placed his mouth on Z.W.'s penis. Z.W. was thirteen years old at the time. Then, between October 2002 and October 2004, on more than one occasion per week, Padgett placed his penis in Z.W.'s mouth. Z.W. was fourteen and fifteen years old at the time. Z.W.'s parents were close friends with Padgett for more than twenty years. All of the sexual contact between Padgett and Z.W. took place at Padgett's house when Z.W. was entrusted to Padgett's care.
On May 20, 2005, the State filed an Information charging Padgett with Counts I and II, child molesting, as Class A felonies, I.C. § 35-42-4-3(a)(1); Counts III and IV, sexual misconduct with a minor, as Class B felonies, I.C. § 35-42-4-9(a)(1); and Count V, child molesting, as a Class C felony, I.C. § 35-42-4-3(b). On September 18, 2006, the day before his trial was to begin, Padgett entered into a plea agreement with the State, whereby he pled guilty to one count of child molesting, as a Class A felony, and one count of sexual misconduct with a minor, as a Class B felony.1 In exchange for his guilty plea, the State agreed to dismiss the remaining charges. On the same date, the trial court held a guilty plea hearing and requested certain changes be made to the plea agreement. On December 1, 2006, the trial court accepted a revised plea agreement and sentenced Padgett to thirty years for his conviction of child molesting, and to a consecutive ten years for his conviction of sexual misconduct with a minor. At the same time, the trial court took under advisement the State's request that it find Padgett to be a sexually violent predator.
On December 12, 2006, the trial court entered its Order Finding Defendant a Sexually Violent Predator Pursuant to I.C. § 35-38-1-7.5, stating in pertinent part:
1. Approximately three minutes before the end of the sentencing hearing in this cause on December 1, 2006, the State orally requested a finding that [Padgett] is a sexually violent predator pursuant to I.C. § 35-38-1-7.5. The [c]ourt expressed concern primarily about whether the State had given [Padgett] any notice that the State would request such a finding. Although the resulting colloquy arguably implicated constitutional issues involving [ex post facto] laws and double jeopardy, the thrust of the [c]ourt's concerns centered on the fundamental [due process] issues of notice—[i.e.] whether the State [informed Padgett it was going to request the sexually violent predator finding at his sentencing hearing]. After the State informed the [c]ourt that it had not so notified [Padgett], the [c]ourt set the State's request for hearing on December 15, 2006, with the parties permitted to file briefs on the issue on or before December 11, 2006.
2. The State filed a brief on December 11, 2006, arguing that entering a sexually violent predator finding under the circumstances would satisfy both the state and federal constitutional prohibitions on [e]x [p]ost [f]acto [l]aws and [d]ouble [j]eopardy. The [c]ourt agrees with the State's analysis on both issues. Neither analysis, however, addressed the [c]ourt's primary concern that the State failed to notify [Padgett] that the State would request a sexually violent predator finding at the sentencing hearing. . . .
3. As of this Order, the [c]ourt has received no brief filed by [Padgett] on or before December 11, 2006.
.
4. Contrary to the information provided by the State at the end of the December 1st [sentencing] hearing, the [c]ourt's review of the record shows that the State unmistakably gave [Padgett] ample notice that a sexually violent predator finding would be part of these proceedings; even if affirmative notice was necessary, the State clearly met that obligation in this case. In the plea agreement tendered to the [c]ourt at the plea hearing on September 18, 2006, [Padgett] expressly agreed that he would "comply with all conditions of the Indiana sex offender registry statutes (I.C. [§§] 11-8-8-7 and 11-8-8-19[]) and any successor statutes and any similar statutes in any other state in which the offender resides, as well as all statutory requirements imposed upon sexually violent predators" (emphasis added). In open court with [Padgett] personally present on September 18, 2006, the State added the italicized material in the preceding sentence to the plea agreement. Also pertinent is that, for purposes of the civil determinations envisioned by Title 11 of the Indiana Code, I.C. [§] 11-8-8-6 expressly states that, "[a]s used in this chapter, `sexually violent predator' has the meaning set forth in [I.C. §] 35-38-1-7.5." Accordingly, the [c]ourt finds that, at least as of September 18, 2006, [Padgett] had actual notice of the State's request for a finding that [he] is a sexually violent predator. Moreover, [Padgett] not only had notice of the sexually violent predator finding but indeed he specifically agreed to that finding by entering the plea agreement in this cause.
5. I.C. [§] 35-38-1-7.5 provides that person who is at least eighteen years old and commits any of several crimes—including child molesting . . . as either a Class A [or B] felony—"is a sexually violent predator." Here, [Padgett] was at least eighteen years old at the time of the charged conduct, and he has pled guilty to child molesting as a Class A felony. . . . The [c]ourt therefore specifically finds that [Padgett] is a sexually violent predator as defined by I.C. [§] 35-38-1-7.5.
(Appellant's App. pp. 20-22). The trial court subsequently adjudged Padgett a sexually violent predator, vacated the hearing set for December 15, 2006, and denied a Motion for Continuance filed by the State on December 12, 2006, as such Motion was now moot.
Padgett now appeals. Additional facts will be provided as necessary.
Padgett disputes his sentence, specifically arguing that the trial court failed to find or give appropriate weight to the following proffered mitigators: (1) his guilty plea; (2) his lack of a criminal record; and (3) the undue hardship that would befall his family during his incarceration. In addition, Padgett asserts that the trial court improperly considered his delay in pleading guilty as an aggravator, and generally improperly balanced the aggravators and mitigators in his case.
In evaluating Padgett's contention, we must first address a recent change in Indiana's criminal sentencing scheme. Our legislature responded to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by amending our sentencing statutes to replace "presumptive" sentences with "advisory" sentences, effective April 25, 2005. Weaver v. State, 845 N.E.2d 1066, 1070 (Ind.Ct.App.2006), trans. denied. Under the new advisory sentencing scheme, "a court may impose any sentence that is authorized by statute and permissible under the Indiana Constitution `regardless of the presence or absence of aggravating circumstances or mitigating circumstances.'" Id. (quoting I.C. § 35-38-1-7.1(d)). Thus, while under the previous presumptive sentencing scheme, a sentence was required to be supported by Blakely-appropriate aggravators and mitigators, under the new advisory sentencing scheme, a trial court may impose any sentence within the proper statutory range regardless of the presence or absence of aggravators or mitigators.
In the instant case, Padgett committed the crime of which he was convicted before the date the new sentencing scheme took effect, but was sentenced after this date. Although our supreme court has not yet definitely addressed the question whether the advisory sentencing scheme should be applied retroactively, it has nevertheless indicated its view on the issue. In footnote 4 of Gutermuth v. State, 868 N.E.2d 427, 435 n. 4 (Ind.2007), the court states
The General Assembly responded to the decision in Smylie[, 823 N.E.2d 679 (2005)] by changing our state's sentencing statute to replace "presumptive" with "advisory" sentences. We noted this change in a footnote in a recent opinion. We stated that "[w]e apply the version of the statute in effect at the time of Prickett's sentence." Prickett v. State, 856 N.E.2d 1203, 1207 n. 3 (Ind. 2006). This language has...
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