James W. Adams v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 26 2018, 8:45 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mary P. Lake Curtis T. Hill, Jr.
La Porte, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James W. Adams, November 26, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1228
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff. Bergerson, Judge
Trial Court Cause No.
46D01-1706-F5-496
Brown, Judge.
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[1] James W. Adams appeals his sentence for failure to register as a sex offender, a
level 5 felony, and illegal sex offender residency, a level 6 felony. He raises one
issue which we revise and restate as whether his sentence is inappropriate in
light of the nature of the offenses and his character. We affirm.
Facts and Procedural History
[2] On June 30, 2000, Adams pled guilty to the felony of 3rd degree sexual assault
under cause number 402000CF001245 (“Cause No. 1245”) in Milwaukee
County, Wisconsin, and was sentenced to seven years confinement in the
Wisconsin State Prison with three years executed and four years of probation.
On July 26, 2001, Adams was convicted of felony 2nd degree sexual assault of a
child under cause number 402001CF001909 (“Cause No. 1909”) in Milwaukee
County and was sentenced to imprisonment of ten years to be served
concurrently with Cause No. 1245. Adams’s conviction under Cause No. 1909
required him to “register for life with the WI Sex Offender Registry.” State’s
Exhibit 6.
[3] On June 15, 2009, Adams registered in Indiana as a sex offender with the
LaPorte County Sheriff’s Office. On October 18, 2013, Adams registered as
homeless with the LaPorte County Sheriff’s Office and complied with the
requirements for homeless registration until December 13, 2013. He was later
arrested in LaPorte County and, on February 25, 2015, pled guilty to failure to
register, a class D felony. He was sentenced to two years in the Indiana
Department of Correction (“DOC”), with one and one-half years suspended to
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probation and an executed sentence of six months in jail. Following his release,
Adams registered in St. Joseph County and his probation was transferred there.
[4] On May 19, 2016, Adams pled guilty to the misdemeanor of resisting or
obstructing an officer under cause number 402016CM001716 in Milwaukee
County, was sentenced to six months on probation and to “30 days Milwaukee
County House of Corrections, 15 days time served, alcohol assessment, fine
and Court costs,” and he was released on September 8, 2016. Appellant’s
Appendix Volume II at 92. Adams never registered in Wisconsin as required,
nor did he register in Indiana, since his release on September 8, 2016. On
February 21, 2017, a bench warrant was issued in Milwaukee County for a sex
registry violation, felony H, under cause number 2017CF00946.
[5] On May 4, 2017, Pamela Bergren, coordinator for the sex and violent offender
registration for the LaPorte County Sheriff’s Office, discovered that Adams had
been arrested by the Indiana State Police and had filled out an inmate
registration form upon his arrival at the LaPorte County Jail that listed 402
Holiday Street as his address. Detective Jacob Koch of the LaPorte County
Sheriff’s Office interviewed Adams, who admitted that, prior to being arrested,
he resided with his grandmother, Ruby Adams (“Ruby”), at 402 Holiday Street,
Michigan City, Indiana. Bergren verified Adams’s identity by his social
security number which she had on file, ran his driver’s license information
through the NCIC IDACS system, discovered on his license, which expired on
March 10, 2016, that his registered address was 402 Holiday Street, checked the
Wisconsin Sex Offender Registration online, and discovered that his last photo
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was taken on January 12, 2016, and that the compliance status was marked as
noncompliant with address unknown. She contacted the Wisconsin Sex
Offender Registry and spoke with a staff member who referred her to someone
who had taken over Adams’s case “once he had become non-compliant in . . .
Wisconsin.” Transcript Volume II at 17. After learning 402 Holiday Street
“was the address that [Adams] was declaring as his residence,” Bergren
determined that the address was within a 1000-foot radius of “prohibited . . .
facilities such as a daycare, school, park or community center” and that it was
two houses away, or approximately seventy-five feet, from a facility located at
414 Holiday Street called “Poo’s Playhouse Daycare” and 435 feet from a
facility located at 123 Hobart Street called “Teresa’s Tender Toes.” Id. at 19,
21.
[6] In June 2017, the State charged Adams in its amended charging information
with one count of failure to register as a sex or violent offender, a level 5 felony,
and one count of illegal sex offender residency, a level 6 felony. On October
12, 2017, Adams waived trial by jury and, on February 26, 2018, the matter
proceeded to a bench trial, at which Ruby testified that she lived at 402 Holiday
Street and that Adams received mail at the address “the year he got out – the
year he came here.” Id. at 34. Ruby answered affirmatively when asked if it
was fair to say that Adams received mail at the address for two or two-and-one-
half years. She also answered affirmatively when later asked if she told
detectives that Adams stayed with her sometimes and indicated Adams would
come and “spend the night here and there, when he first came here he stayed
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there for a while . . . .” Id. at 35. In response to the question of whether
“maybe three nights a month . . . sound[s] about right,” Ruby answered that it
might have been and that she “wouldn’t dispute [it].” Id. She indicated that
she was not familiar with the daycare “Theresa Tender Toes” but that a
“[w]indow or sign, one of them” for “Pooh’s Playhouse” was visible to the eye.
Id. at 36-37. The court found Adams guilty of failure to register as a sex
offender, a level 5 felony, and illegal sex offender residency, a level 6 felony.
[7] On March 8, 2018, the court held a sentencing hearing. The State asked for five
years and indicated that it believed an aggravated sentence was appropriate as
Adams had been previously charged with violent crimes, had “two prior sex
offenses and the prior failure to register,” had been charged “at least, on 12
occasions,” was on probation at the time of these offenses, and had “been on
probation previously, which has been revoked.” Id. at 90. Counsel for Adams
agreed that he was “probably not a good candidate for probation,” and asked
that the “mitigators balance the aggravators and he be given the advisory
sentence.” Id. at 91.
[8] The court found the following aggravating circumstances: that Adams’s
criminal history did not give it “much comfort in thinking that [Adams] can
comply with the terms of probation”; that the “chances that [Adams] has been
given in the past certainly have been squandered” by him; and that these
offenses were committed while also on probation, which did not give the court
“any reason to think that [Adams] would comply with the terms of probation or
there is any chance that the Defendant might be rehabilitated. Suspending the
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sentence or any portion of that sentence would depreciate the seriousness of this
crime.” Appellant’s Appendix Volume II at 101. The court found the fact that
Adams “did not make the State go to the expense of having a Trial” as a
mitigating circumstance, sentenced him to concurrent terms of four years
executed in the DOC on the count of failure to register as a sex or violent
offender and one year on the count of illegal sex offender residency, and gave
him 307 days credit and 102 days good-time credit for time spent in custody.
Id. at 100.
Discussion
[9] The issue is whether Adams’s sentence is inappropriate in light of the nature of
the offenses and his character. Adams acknowledges that he has a significant
criminal history but contends that the current offenses are strictly status
offenses, that he has no significant drug or alcohol use history, and that there
was no harm to any victims or testimony that he attempted to come into
contact with any children. The State argues that Adams’s sentence is not
inappropriate.
[10] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
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[11] Ind. Code § 35-50-2-6 provides in part that a person who commits a level 5
felony shall be imprisoned for a fixed term of between one and six years, with
the advisory sentence being three years. Ind. Code § 35-50-2-7 provides in part
that a person who commits a level 6 felony shall be imprisoned for a fixed term
of between six months and two and one-half years, with the advisory sentence
being one year.
[12] Our review of the nature of the offenses reveals that Adams did not register in
Wisconsin, as required, or in Indiana since his release on September 8, 2016.
We also observe that, when Bergren verified Adams’s identity by his social
security number which she had on file, ran his driver’s license information
through the NCIC IDACS system, and checked the Wisconsin Sex Offender
Registration, she discovered that his last photo had been taken on January 12,
2016, and that his status was marked as non-compliant. Further, the 402
Holiday Street address is within a 1000-foot radius of two prohibited facilities.
As for his character, the presentence investigation report (“PSI”) indicates that
Adams’s criminal history includes convictions in Wisconsin for felonies of 3rd
degree sexual assault in 2000, 2nd degree sexual assault of a child in 2001, sex
offender registry violation in 2016, as well as for misdemeanors of operating
while under the influence and resisting or obstructing an officer in 2016. On
February 21, 2017, a bench warrant was issued in Milwaukee County for a sex
registry violation, felony H, and the PSI indicates that it is still active. The PSI
further reveals that Adams was convicted in Indiana for residential entry, a
class D felony, in 2010 and failure to register as a sex or violent offender, a class
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D felony, in 2014. The PSI states that he has been on probation, had his
probation revoked, and was on probation at the time he was arrested and
charged for the instant offense. Additionally, the PSI states that Adams
reported he first used alcohol at the age of fifteen and began regularly using
alcohol at the age of twenty-nine, and that, while he denied any illegal drug use,
according to a previously completed PSI in December 2014, he admitted to
using marijuana at the age of thirteen and that the last time he used marijuana
was in June 2001.
[13] After due consideration, we conclude that Adams has not sustained his burden
of establishing that his sentence is inappropriate in light of the nature of the
offenses and his character.
Conclusion
[14] For the foregoing reasons, we affirm Adams’s sentence.
[15] Affirmed.
Altice, J., and Tavitas, J., concur.
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