Phelps v. State
| Decision Date | 05 October 2009 |
| Docket Number | No. 18A02-0903-CR-206.,18A02-0903-CR-206. |
| Citation | 914 N.E.2d 283 |
| Parties | Jeffrey PHELPS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jill A. Gonzalez, Muncie, IN, Attorney for Appellant.
Gregory F. Zoeler, Attorney General of Indiana, James E. Porter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Jeffrey Phelps (Phelps), appeals his sentence for vicarious sexual gratification, as a Class D felony, Ind.Code § 35-42-4-5(c); vicarious sexual gratification, as a Class C felony, I.C. § 35-42-4-5(a); dissemination of matter harmful to a minor, a Class D felony, I.C. § 35-49-3-3; and the trial court's determination that he is violent sexual predator.
We affirm in part, reverse in part, and remand with instructions.
Phelps raises four issues, which we consolidate and restate as the following three:
(1) Whether the trial court's determination that he is a sexually violent predator is supported by sufficient evidence;
(2) Whether the trial court erred when it permitted the State to question him when he made a sentencing statement; and
(3) Whether the trial court abused its discretion when sentencing him.
On September 29, 2006, the son of one of Phelps' friends called Phelps and asked if he and his two cousins could come to Phelps' home to play video games and shoot pool.1 The three boys were all between the ages of thirteen and fourteen. Phelps had turned the boys down before, but decided it was okay this time, and went and picked the boys up. Later that evening, one of the boys asked Phelps if they could watch a pornographic movie, telling Phelps that he had watched them before. Phelps conceded and played a pornographic movie. The boy asked if he could masturbate, and Phelps said "go for it." (Appellant's App. Vol. II, p. 181). The boy asked if Phelps was going to join and Phelps "thought what the hell, we are boys doing a normal thing boys do all the time," and began masturbating as well. (Appellant's App. Vol. II, p. 181). The other two boys came into the room and masturbated as well.
On March 27, 2007, the State filed an Information charging Phelps with thirteen counts: Count 1, sexual misconduct with a minor, a Class B felony, Ind.Code § 35-42-4-9; Count 2, sexual misconduct with a minor, a Class B felony, I.C. § 35-42-4-9; Count 3, sexual misconduct with a minor, a Class C felony, I.C. § 35-42-4-9; Count 4, contributing to the delinquency of a minor, I.C. § 35-46-1-8; Count 5, sexual misconduct with a minor, a Class C felony, I.C. § 35-42-4-9; Count 6, vicarious sexual gratification, a Class D felony, I.C. § 35-42-4-5; Count 7, contributing to the delinquency of a minor, a Class A misdemeanor, I.C. § 35-46-1-8; Count 8, contributing to the delinquency of a minor, a Class A misdemeanor, I.C. § 35-46-1-8; Count 9, contributing to the delinquency of a minor, a Class A misdemeanor, I.C. § 35-46-1-8; Count 10, sexual misconduct with a minor, a Class C felony, I.C. § 35-42-4-9; Count 11, child solicitation, a Class D felony, I.C. § 35-42-4-6; Count 12, contributing to the delinquency of a minor, a Class A misdemeanor, I.C. § 35-46-1-8; and Count 13, dissemination of matter harmful to minors, a Class D felony, I.C. § 35-49-3-3.
Phelps and the State came to an agreement wherein Phelps agreed to plead guilty to: Count 5, sexual misconduct with a minor, as a Class D felony as opposed to the originally charged Class C felony; Count 6, sexual gratification as a Class C felony, as opposed to the originally charged Class D felony; and Count 13, dissemination of matter harmful to a minor, a Class D felony. In exchange, the State agreed to dismiss the remaining charges and recommend to the trial court certain fees and fines, and an executed sentence of no more than eight years with the parties free to argue how, if any, executed time would be served.
On April 7, 2008, the trial court took the plea agreement under advisement and appointed Doctors Frank Krause (Dr. Krause) and Craig E. Buckles (Dr. Buckles) to evaluate whether Phelps is a sexually violent predator. Dr. Krause, an Indiana Licensed Clinical Psychologist, concluded that in his "professional opinion that after reviewing court documents, interviews, and results of psychological testing, [ ] Phelps should not be classified as a sexually violent predator. . . ." (Appellant's App. Vol. II, p. 170). Dr. Buckles found that Phelps does not have a mental illness, that he had no evidence that Phelps was a pedophile, and, therefore concluded that Phelps "is not a sexually violent predator." (Appellant's App. Vol. II, p. 191).
On October 30, 2008, the trial court conducted a sentencing hearing. At the onset of the hearing, it noted inconsistencies between the specific statutes relied upon and the factual basis established to satisfy the elements of those crimes as listed in the plea agreement. To cure the defect, the parties agreed to make Count 5, vicarious sexual gratification, as a Class D felony, I.C. § 35-42-4-5(c)(3), and Count 6, vicarious sexual gratification, as a Class C felony, I.C. § 35-42-4-5(a)(1), so that the facts admitted by Phelps would satisfy the elements of the crimes which he pled guilty to with the culpability level remaining the same as that contained in the plea agreement. Count 13 remained the same throughout. The trial court accepted Phelps' plea of guilty and proceeded with a sentencing hearing. When considering the mitigating and aggravating circumstances the trial court found the following aggravating factors: that Phelps had violated a position of trust; that he had exercised a high degree of planning and care to execute the offense; that "[b]ased on the psychological evaluation and the circumstances surrounding the offense, there is a high probability [that Phelps] will commit another offense"; and that Phelps exhibited limited remorse. (Appellant's App. Vol. I, p. 115). The trial court found the following to be mitigating factors: his medical ailments, and his high degree of family support. Based on its consideration of those factors the trial court sentenced Phelps to two years on Count 5, four years for Count 6, and two years for Count 13, all to be served consecutively in the Department of Correction. In addition, the trial court assessed $100 for court costs, a $100 fine, and ordered Phelps to pay an additional $500 to the sexual assault victims assistance fund and to subject to testing for HIV Aids. The next day, the trial court made an entry of its determination that Phelps is a sexually violent predator.
On November 25, 2008, Phelps filed a motion to correct error. On January 25, 2009, the trial court conducted a hearing on the motion to correct error, and on February 27, 2009, the trial court denied the motion.
Phelps now appeals. Additional facts will be provided as necessary.
Phelps argues that the trial court's determination that he is a sexually violent predator was not supported by sufficient evidence. Indiana Code section 35-38-1-7.5(a) states that a "`sexually violent predator' means a person who suffers from mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense (as defined in IC 11-8-8-5.2)." Subsection (b) states that persons who commit certain crimes and have certain unrelated prior convictions or juvenile adjudication are sexually violent predators. Phelps had no prior unrelated convictions or adjudications as a delinquent child for any crimes; therefore, he is not a sexually violent predator by operation of law. See I.C. § 35-38-1-7.5(b). However, a court can find that a person is a sexually violent predator under subsection (a) after considering the testimony of two psychologists or psychiatrists who have expertise in criminal behavioral disorders. I.C. § 35-38-1-7.5(e). The trial court made such a finding, which we now review.
"When a defendant makes a sufficiency-of-the-evidence challenge to a trial court's [sexually violent predator] finding, our inquiry is whether there was substantial evidence of probative value to support the trial court's finding that the defendant suffers from a mental abnormality or personality disorder that makes him or her likely to repeatedly commit the enumerated sex or violent offenses." Williams v. State, 895 N.E.2d 377, 385 (Ind.Ct.App. 2008). As with other considerations of the sufficiency of the evidence, we will neither reweigh the evidence nor judge the credibility of the witnesses. Scott v. State, 895 N.E.2d 369, 374 (Ind.Ct.App.2008). We will consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from that evidence, affirming the trial court if it is supported by substantial evidence of probative value. Id.
As we have explained above, neither expert appointed by the trial court concluded that Phelps is a sexually violent predator. This seems to weigh heavily in favor of a conclusion that Phelps is not a sexually violent predator. However, it does not necessarily preclude a determination that the defendant is a sexually violent predator. Westbrook v. State, 770 N.E.2d 868, 871 (Ind.Ct.App. 2002). Indeed, considering our standard of review, we should not rely upon the expert opinions to refute any positive evidence presented by the state proving that a defendant is a sexually violent predator.
That being said, we can refer to the expert opinions to reveal a void of evidence that would otherwise prove an element of the sexually violent predator status. Dr. Krause specifically concluded that Phelps "does not have symptoms of a mental abnormality or disorder that make him likely to repeatedly engage in any of the offenses ...
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Strack v. State
...We have found that failure to object to cross-examination during allocution waives the claim for appeal. Phelps v. State , 914 N.E.2d 283, 290 (Ind. Ct. App. 2009). Our Supreme Court has also found that a failure to object when a trial court fails to ask a defendant if he has anything to sa......
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Strack v. State
... ... and made no argument that the trial court violated Article 1, ... section 13 of the Indiana Constitution. We have found that ... failure to object to cross-examination during allocution ... waives the claim for appeal. Phelps v. State , 914 ... N.E.2d 283, 290 (Ind.Ct.App. 2009). Our Supreme Court has ... also found that a failure to object when a trial court fails ... to ask a defendant if he has anything to say will waive a ... claim of related error on review. Locke v. State , ... 461 ... ...
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Strack v. State
... ... and made no argument that the trial court violated Article 1, ... section 13 of the Indiana Constitution. We have found that ... failure to object to cross-examination during allocution ... waives the claim for appeal. Phelps v. State , 914 ... N.E.2d 283, 290 (Ind.Ct.App. 2009). Our Supreme Court has ... also found that a failure to object when a trial court fails ... to ask a defendant if he has anything to say will waive a ... claim of related error on review. Locke v. State , ... 461 ... ...
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Wayne Fleming v. State
... ... 868 N.E.2d at 489. This Court has long-since repudiated the ... idea that Indiana Code Section 35-38-1-7.1 constitutes an ... exhaustive list of aggravators and mitigators by which a ... sentencing court is bound. See, e.g., Phelps v ... State, 914 N.E.2d 283, 292 (Ind.Ct.App. 2009) (" ... [t]he aggravating factors listed in that statute are not ... exclusive and trial courts may consider additional ... aggravating factors when determining a sentence.") ... [¶14] ... ...