Undercover online investigation (Internet crimes)

Indiana Case Law

WINDHORST v. STATE, 49A04-0605-CR-260 (Ind.App. 12-22-2006)
MORRIS WINDHORST, Appellant-Defendant, v. STATE OF INDIANA,
Appellee-Plaintiff. No. 49A04-0605-CR-260. Court of
Appeals of Indiana. December 22, 2006.

Appeal From the Marion Superior Court, The Honorable
Jeffrey Marchal, Master Commissioner. Cause No.
49G06-0602-FC-31047.

JOEL M. SCHUMM Indianapolis, Indiana, ATTORNEY FOR
APPELLANT.

STEVE CARTER, Attorney General of Indiana.

CYNTHIA L. PLOUGHE, Deputy Attorney General Indianapolis,
Indiana, ATTORNEYS FOR APPELLEE:

OPINION

CRONE, Judge.

Case Summary

Morris Windhorst appeals his four-year sentence for class C
felony child solicitation. We affirm.

Issue

The issue is whether Windhorst’s sentence is inappropriate
in light of the nature of the offense and his character.

Facts and Procedural History

Windhorst admitted to the following factual basis at his
guilty plea hearing:

On February 20th of 2006, [Indianapolis Police] Officer
Spivey, in affiliation with the Internet Crimes Against
Children Taskforce, conducted a child solicitation
operation. There was an undercover online investigation in
which he used the persona of “Stacey” [and] contacted
[Windhorst]. [Windhorst] knew “Stacey” to be fourteen
years old and said that he was thirty-eight. He displayed
a picture of himself apparently shirtless. He then
presented himself on a web camera again shirtless. He
invited this “Stacey” persona to a movie, indicating an
intention of meeting. He expressed concern about whether
or not she was a police officer. He then subsequently went
ahead and sent three additional pictures of himself, one
of which was a picture of himself in a full state of
frontal nudity in a standing position. He admitted to
being nude in the picture also. He, during this
conversation, set up a time to meet with the “Stacey”
[persona] describing his intent to fondle her. He
described his intent to perform oral sex on her after the
movie. He was also intending to bring, during this
conversation, Bailey’s Irish CrÄ?me liqueur to this
fourteen year old person who[m] he believed to be fourteen
years old. This was all through the use of his computer
and he then subsequently did go to the meeting point[.]

Tr. at 15-16. Upon his arrival, police arrested the
forty-four-year-old Windhorst.

On February 22, 2006, the State charged Windhorst with one
count of class C felony child solicitation and two counts
of class D felony dissemination of material harmful to
minors. At a hearing on May 12, 2006, Windhorst agreed to
plead guilty to the child solicitation count in exchange
for the dismissal of the remaining counts, with a cap of
two years on the executed portion of his sentence.
Windhorst asked the trial court to consider the following
mitigating factors: (1) that he had “pled guilty and
accepted responsibility for his actions”; (2) that he was
“very remorseful for those actions”; (3) that he had no
prior convictions; (4) that he had been steadily employed
for most of his life; (5) that he had served in the
military; (6) that he had cooperated with police by giving
a statement and consenting to a search of his home and
computer; (7) that he had been suffering from depression;
and (8) that he had participated in a program while in
jail.[fn1] Id. at 28-29. The trial court found no
aggravating or mitigating circumstances and imposed the
advisory sentence of four years, with two years executed in
the Department of Correction and two years suspended to
probation. Windhorst now appeals his sentence.

Discussion and Decision

Indiana Code Section 35-50-2-6 provides that a person who
commits a class C felony “shall be imprisoned for a fixed
term of between two (2) and eight (8) years, with the
advisory sentence being four (4) years.” Indiana Code
Section 35-38-1-7.1(d) allows trial courts to 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.” Article 7, Section 6 of the Indiana
Constitution authorizes this Court to review and revise
criminal defendants’ sentences pursuant to the rules of our
supreme court. Indiana Appellate Rule 7(B) provides that we
“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.”
Windhorst challenges the appropriateness of his four-year
sentence for class C felony child solicitation.[fn2]

Our supreme court recently stated that the advisory
sentence “is the starting point the Legislature has
selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind.
2006). We disagree with Windhorst’s suggestion that the
particulars of his offense are unremarkable and do not go
beyond the inherent nature of the crime charged.[fn3] At
the guilty plea hearing, Windhorst admitted to sending
“Stacey” photos of himself in partial and complete undress.
He also admitted his intention to bring an alcoholic
beverage to his planned rendezvous with a person he believed
to be a fourteen-year-old girl. These facts go beyond the
mere solicitation of a purported child by using a computer
network. See Ind. Code § 35-42-4-6(c).

Moreover, these facts reflect unfavorably on Windhorst’s
character and significantly diminish the luster of his lack
of prior convictions, employment history, military service,
and cooperation with the police. Regarding Windhorst’s
guilty plea, we note that the State dismissed two
additional felony charges and agreed to limit the executed
sentence that the trial court could impose, thereby
offsetting the benefit that Windhorst conferred upon the
State by pleading guilty. Cf. Francis v. State, 817 N.E.2d
235, 237 n. 3 (Ind. 2004) (noting that the mitigating
significance of a guilty plea “will vary from case to
case”). To the extent Windhorst contends that he should
receive consideration for his expression of “deep
remorse[,]” Appellant’s Br. at 7, we note that the
determination of the sincerity of a defendant’s remorse is a
matter best left to the trial court. See Pickens v. State,
767 N.E.2d 530, 534-35 (Ind. 2002) (“We find the court’s
determination [of the sincerity of a defendant’s remorse]
to be similar to a determination of credibility.”).
Finally, Windhorst states that he lost his mother and his
job in the year prior to the offense and claims that he was
“severely depressed[.]” Appellant’s Br. at 7. We note that
Windhorst provided no independent evidence to support this
claim or to establish that his depression affected his
ability to differentiate between right and wrong. In fact,
Windhorst’s statement to the trial court indicates
otherwise. See, e.g., Tr. at 25 (“Though tempted, I had
every opportunity to turn away. In my arrogance and in my
self-destruction, I chose not to. . . . We can choose what
we want or what God wants. I chose what I wanted. . . . I
was raised by good parents who have taught me right and
wrong. I chose wrong.”).

In sum, we cannot conclude that Windhorst’s four-year
sentence is inappropriate in light of the nature of the
offense and his character. We therefore affirm.

Affirmed.

VAIDIK, J., concurs in result with separate opinion.

BAKER, J., concurs in part and dissents in part with
separate opinion.

[fn1] The record does not disclose the precise nature of
the program.

[fn2] Windhorst does not specifically challenge the trial
court’s failure to find mitigating circumstances at
sentencing. In McMahon v. State, 856 N.E.2d 743
(Ind.Ct.App. 2006), a different panel of this Court
surveyed the legislature’s April 2005 amendments to
Indiana’s sentencing statutes that were enacted in response
to Blakely v. Washington, 542 U.S. 296 (2004), and Smylie
v. State, 823 N.E.2d 679 (Ind. 2005), cert. denied. In
support of its determination that we must now “merge our
review of the trial court’s finding and balancing of
aggravators and mitigators under Indiana Code §
35-38-1-7.1 into our review for inappropriateness under
Appellate Rule 7(B)[,]” McMahon, 856 N.E.2d at 748, the
McMahon court stated,

[W]hen it responded to Blakely, our General Assembly
chose to keep intact the statute requiring a sentencing
statement “if the court finds aggravating circumstances or
mitigating circumstances.” I.C. § 35-38-1-3. As
mentioned above, Indiana courts have read this statute to
require a sentencing statement anytime the trial court
imposes a sentence other than the presumptive. See Gardner
[v. State, 270 Ind. 627, 635 n. 4, 388 N.E.2d 513, 518 n.
4 (1979)]. Because we presume that “the legislature is
aware of the common law, and does not intend to make any
change therein beyond what it declares,” Bartrom v.
Adjustment Bureau, Inc., 618 N.E.2d 1, 10 (Ind. 1993), we
presume that by keeping Indiana Code § 35-38-1-3 in
place, the legislature intended to require a sentencing
statement anytime the trial court imposes a sentence other
than the advisory sentence under the new statutes. This
requirement continues to serve two important purposes
under Indiana’s new sentencing regime: to guard against
arbitrary sentences and to provide an adequate basis for
appellate review.

Id. at 749. We respectfully disagree with this view. The
McMahon court’s analysis downplays the significance of the
legislature’s amendment of Indiana Code Section
35-38-1-7.1(d), which states that a trial 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.” (Emphasis added.) We believe that the
legislature’s amendment of Indiana Code Section 35-38-1-7.1
plainly indicates its intention to change the common law as
it existed before April 2005 as to the requirement of “a
sentencing statement anytime the trial court imposes a
sentence other than the presumptive.” McMahon, 856 N.E.2d
at 749. We also believe that the McMahon court’s imposition
of such a requirement will resurrect the very Sixth
Amendment problems that the legislature sought to eliminate
with its amendment of Indiana’s sentencing scheme. Cf. id.
at 747 (“On March 9, 2005, in response to Blakely, the
Indiana Supreme Court announced that the portion of
Indiana’s sentencing scheme allowing trial courts to
enhance sentences based on judicial findings of aggravating
circumstances violated the Sixth Amendment’s right to trial
by jury.”) (citing Smylie, 823 N.E.2d 679).

[fn3] See Ind. Code § 35-42-4-6(c) (“A person at
least twenty-one (21) years of age who knowingly or
intentionally solicits . . . an individual the person
believes to be a child at least fourteen (14) years of age
but less than sixteen (16) years of age, to engage in: (1)
sexual intercourse; (2) deviate sexual conduct; or (3) any
fondling or touching intended to arouse or satisfy the
sexual desires of either the child or the older person;
commits child solicitation, a Class D felony. However, the
offense is a Class C felony if it is committed by using a
computer network[.]”).

VAIDIK, Judge, concurring in result.

I agree with Judge Crone’s conclusion that Windhorst’s
sentence is not inappropriate. However, I write separately
to express my disagreement with the suggestion that this
Court’s opinion in McMahon v. State, 856 N.E.2d 743
(Ind.Ct.App. 2006), which I authored, “will resurrect the
very Sixth Amendment problems that the legislature sought to
eliminate with its amendment of Indiana’s sentencing
scheme.” Slip op. at 4 n. 2.

I understand the concern. We held in McMahon that “if a
trial court relies upon aggravating or mitigating
circumstances to impose a sentence other than the advisory,
it must: (1) identify all significant mitigating and
aggravating circumstances; (2) state the specific reason
why each circumstance is determined to be mitigating or
aggravating; and (3) articulate the court’s evaluation and
balancing of the circumstances.” 856 N.E.2d at 749-50. My
colleagues apparently equate this requirement with the
former requirement, found unconstitutional by the Indiana
Supreme Court in Smylie v. State, that a “trial court judge
. . . must engage in judicial fact-finding during sentencing
if a sentence greater than the presumptive fixed term is to
be imposed.” 823 N.E.2d 679, 683 (Ind. 2005). The
distinction between the two requirements — requiring
a court to explain the reasons for the sentence it imposes
and requiring a court to find aggravating circumstances if
it imposes a sentence above the presumptive — is
certainly narrow. Nonetheless, it is a distinction of
constitutional dimension, as the United States Supreme
Court has recognized.

The United States Sentencing Guidelines (“Guidelines”) were
the subject of the high court’s scrutiny in United States
v. Booker, 543 U.S. 220 (2005). In Booker, the Court, in a
majority opinion penned by Justice Stevens, found
unconstitutional two applications of the Guidelines because
the Guidelines were mandatory. Id. at 233-34. That is, a
sentencing judge was required to impose a sentence within
the Guidelines range unless he found circumstances
justifying a sentence outside the range. In this regard,
the Guidelines were unconstitutional for the same reason
that Indiana’s presumptive sentencing scheme was
unconstitutional: both prohibited sentencing judges from
exceeding certain limits unless they found circumstances
justifying sentences in excess of those limits, i.e.,
aggravating circumstances. Translated into affirmative
terms, judges were allowed to increase penalties based on
judicial fact-finding. As such, both schemes violated the
rule from Apprendi v. New Jersey that, “Other than the fact
of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. 466, 490 (2000); see also Blakely v. Washington,
542 U.S. 296 (2004).

To remedy the constitutional flaw in the Guidelines scheme,
the Booker Court, in a separate majority opinion authored
by Justice Breyer, simply made the Guidelines advisory. Id.
at 245. The Court then discussed the role of appellate
courts under the advisory system, holding that despite the
newly-advisory nature of the Guidelines, the federal
sentencing statute continues to provide for appeals from
sentencing decisions. Id. at 260; see also id. at 262
(eliminating appellate review of sentences entirely “would
cut the statute loose from its moorings in congressional
purpose”). The Court thereafter undertook to determine the
appropriate standard of appellate review. Looking to the
“related statutory language, the structure of the statute,
the `sound administration of justice,'” and “the past two
decades of appellate practice involving departures [from
the Guidelines range],” id. at 260-61, the Court settled on
a single standard: unreasonableness. Id. at 261.

While appellate review of sentences on the federal level is
now limited to whether sentences are unreasonable, the
United States Supreme Court made clear that the sentencing
statutes still require district courts to “consult [the]
Guidelines and take them into account when sentencing,”
even though they are “not bound to apply the Guidelines[.]”
Id. at 264 (citing 18 U.S.C. § 3553(a)(4)). The
United States Court of Appeals for the Seventh Circuit has
interpreted this holding to require district courts to
explain the reasons for the sentences they impose in order
to facilitate appellate review of sentences, even though
they are technically free to impose a sentence anywhere
within the statutory range. See United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005) (applying Booker’s
“unreasonableness” standard).

Likewise, though Indiana’s trial courts, like those in the
federal system, are technically free to impose a sentence
anywhere within the statutory range, see Ind. Code §
35-38-1-7.1(d), a sentencing statement requirement will
facilitate our review of sentences for inappropriateness
under Indiana Appellate Rule 7(B). The majority implies
that McMahon constitutes an end-run around the Sixth
Amendment requirements of Apprendi and Blakely and that
requiring sentencing statements will create a de facto
presumptive scheme, identical to that found
unconstitutional by the Indiana Supreme Court in Smylie. The
same criticisms have been made about Justice Breyer’s
remedial majority opinion in Booker. See M.K.B. Darmer, The
Federal Sentencing Guidelines after Blakely and Booker: The
Limits of Congressional Tolerance and a Greater Role for
Juries, 56 S.C. L. Rev. 533, 564 (2005) (positing that
remedial Booker effectuated “end-run” around Sixth
Amendment requirements of Apprendi and Blakely); United
States v. Kandirakis, 441 F. Supp. 2d 282, 297 (D. Mass.
2006) (citing Darmer’s article); see also Booker, 543 U.S.
at 313 (Scalia, J., dissenting) (predicting that
Guidelines, as construed by Booker remedial majority, will
become de facto mandatory); United States v. McDonald, 461
F.3d 948, 959 (8th Cir. 2006) (Bye, J., dissenting) (same);
United States v. Cage, 458 F.3d 537, 544 (6th Cir. 2006)
(Clay, J., dissenting) (same). However, even Justice
Scalia, whose disdain for Justice Breyer’s remedial majority
opinion in Booker is virtually palpable, apparently
acknowledges that judicial factfinding under this new
regime does not violate the Sixth Amendment. Booker, 543
U.S. at 313 (Scalia, J., dissenting) (writing about the
“newly restored discretion” of trial court judges).

In criticizing McMahon, I believe my colleagues are in
effect criticizing Booker. And while that case, with its
multiple majorities and splintered opinions, is certainly
ripe for criticism, it is the supreme law of the land.
Therefore, I stand by the conclusion in McMahon that the
trial court must provide a sentencing statement anytime it
imposes a sentence other than the advisory sentence under
the new statutes. 856 N.E.2d at 749-50. This requirement
serves two very important purposes: to guard against
arbitrary sentences and to provide an adequate basis for
appellate review. Id. (quoting Bryant v. State, 841 N.E.2d
1154, 1156 (Ind. 2006)).

BAKER, Judge, concurring in part and dissenting in part.

I agree with the majority’s determination that our
legislature’s amendment of Indiana Code section 35-38-1-7.1
indicates an intention to change the common law as it
existed before April 2005 regarding the requirement of “a
sentencing statement anytime the trial court imposes a
sentence other than the presumptive.” Slip op. at 4 n. 2
(quoting McMahon v. State, No. 79A02-0603-CR-170, 2006 WL
3258325 at *5 (Ind.Ct.App. Nov. 13, 2006)).

Hence, it is also my view that the pronouncement made by a
different panel of this court in McMahon would effectively
resurrect the precise Sixth Amendment problems that the
legislature sought to eliminate with its amendment of
Indiana’s sentencing scheme.

On the other hand, I cannot agree that a four-year sentence
was appropriate in this circumstance. Indeed, the State
does not dispute Windhorst’s contention that he had no
criminal history. And Windhorst entered into a plea
agreement with the State just two and one-half months after
his arrest, Appellant’s App. 4-6, 22-24, thus indicating an
acceptance of responsibility for his actions. In my view,
Windhorst’s decision to plead guilty at such an early stage
of the proceedings saved the State significant time and
resources, thus affording it a substantial benefit. I would
also note that even though the State dismissed two counts
of class D felony dissemination of material harmful to
minors with which Windhorst had been charged, only one of
the photographs depicted Windhorst “in a full state of
frontal nudity.” Tr. p. 15-16. Windhorst was “apparently
shirtless” in the other photo. Id.

Other significant mitigating factors that bear on
Windhorst’s character include that fact that he was
depressed because his mother died in February 2005 and he
had lost his job only a few months before committing the
instant offense. Tr. p. 24. Additionally, there is no
dispute that Windhorst showed remorse for his actions. Id.
at 25. Furthermore, Windhorst maintained steady employment
for nearly his entire adult life, served in the military or
reserves for more than two decades, was cooperative with
the police throughout the case, and involved himself in
various programs while in jail awaiting sentencing. Tr. p.
28-29.

In sum, given the numerous significant mitigating
circumstances in this case coupled with the absence of any
aggravating factors, I would remand this cause to the trial
court with instructions to impose a sentence of two years,
with one year executed and one year suspended to probation.