Jennifer Rose Peverly v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Sep 17 2013, 8:18 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS D. SARVER GREGORY F. ZOELLER
Goebel Law Office Attorney General of Indiana
Crawfordsville, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JENNIFER ROSE PEVERLY, )
)
Appellant-Defendant, )
)
vs. ) No. 54A01-1303-CR-145
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MONTGOMERY SUPERIOR COURT
The Honorable Peggy Q. Lohorn, Judge
Cause No. 54D02-1212-CM-4615
September 17, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this appeal, appellant-defendant Jennifer Rose Peverly, a licensed clinical social
worker with more than twenty years of experience, flagrantly disregarded a protective
order that required her to cease all contact with the teenaged client with whom she had
developed a sexual relationship. Peverly pleaded guilty to three counts of class A
misdemeanor Invasion of Privacy,1 and the trial court sentenced her to consecutive one-
year terms on each count to run consecutively to a sentence imposed in an earlier case.
Peverly argues that the trial court erred in ordering the three sentences to run
consecutively to each other and to the sentence in the earlier case. She also argues that
her aggregate sentence of three years is inappropriate in light of the nature of the offenses
and her character.
Concluding that the trial court did not err in ordering consecutive sentences and
that the aggregate sentence of three years imposed on the instant offenses is not
inappropriate in light of the nature of the offenses and Peverly’s character, we affirm the
judgment of the trial court.
FACTS
In the summer of 2010, forty-one-year-old Peverly was a licensed clinical social
worker at Cummins Behavioral Health Systems in Crawfordsville. In July 2010, J.P.S.’s
parents took him to see Peverly for depression and anger management treatment. In early
2012, sixteen-year-old J.P.S. told Peverly that he had feelings for her. Peverly and J.P.S.
subsequently entered into a relationship. J.P.S.’s parents apparently became aware of the
1
Ind. Code § 35-46-1-15.1.
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relationship, and on March 26, 2012, the trial court issued a protective order pursuant to
Indiana Code section 34-16-5, which required Peverly to cease all contact with J.P.S.
Peverly was subsequently charged with contributing to the delinquency of a minor and
false informing, both class A misdemeanors, under Cause Number 54D02-1204-CM-
1173, (Cause Number 1173), and released on bond in June 2012. On November 29,
2012, after Peverly pleaded guilty to both offenses, the trial court sentenced her to two
years in the Montgomery County Jail, with one year suspended and 180 days of home
detention as a term of probation.
During the November 2012 sentencing hearing, several additional facts were
brought to light. Despite the March 26, 2012, protective order, Peverly and J.P.S.
exchanged approximately 5600 Facebook messages using alias accounts between April 3,
2012 and September 27, 2012. Specifically, J.P.S. had a Facebook account under the
name Ichwill Morgan. Peverly blocked Ichwill Morgan from the Facebook account
under her name to feign compliance with the protective order. However, she continued to
contact J.P.S. with a Facebook account under the name of Lavender White. On multiple
occasions, Peverly warned J.P.S. that they needed to be careful because she was
committing a crime when she had contact with him in violation of the protective order.
At some point, Peverly drove J.P.S. to Turkey Run State Park where J.P.S. and
Peverly engaged in sexual intercourse. Peverly bought J.P.S. a cell phone, and they
would often call, text, and send each other sexually explicit messages. Peverly instructed
J.P.S. to delete all of her emails so no one knew that she was contacting him. In July
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2012, Peverly sent J.P.S. a message that she wanted to engage in oral and anal intercourse
with him. In August 2012, Peverly sent J.P.S. the following Facebook message: “I
thought I had read . . . in a report somewhere . . . that you are court ordered to not have
contact with me as well[.] [D]on’t worry, wors[t] case scenario is that u would be put on
supervised probation, but I don’t think we will get caught.” Id. In September 2012,
Peverly sent J.P.S. a message that she might have to punish him for “being and getting so
dirty.” Appellant’s App. p. 7.
Based upon this conduct that violated the protective order, in December 2012, the
State charged Peverly with six counts of invasion of privacy and one count of
contributing to the delinquency of a minor, all class A misdemeanors. In February 2013,
Peverly pleaded guilty to three counts of invasion of privacy, and the State dismissed the
remaining counts. The trial court sentenced her to one year for each count and ordered
them to to run consecutively to each other and consecutively to the sentence imposed in
Cause Number 1173. Specifically, the trial court explained the sentence as follows:
In addition to the previous sentence that the Court imposed, the Court’s
giving you three, one year sentences consecutive to each other. With good
time credit, that is an actual year and a half in addition to the sentence the
Court already sentenced you to. . . . So once you are released from
incarceration, you will be on probation under [Cause Number 1173] for a
period of a year and that also involves as I recall some community
corrections.
Tr. p. 49-50.
Peverly filed a motion to correct errors and modify sentence, which the trial court
denied. Peverly now appeals.
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DISCUSSION AND DECISION
I. Consecutive Sentences
Peverly first argues that the trial court abused its discretion in ordering her three
one-year sentences for the three counts of class A misdemeanors to run consecutively to
each other. However, this Court has previously explained that abuse of discretion review
of a sentence, which concerns a trial court’s duty to issue a sentencing statement along
with its findings of aggravators and mitigators, has no place in reviewing a misdemeanor
sentence. Morris v. State, 985 N.E.2d 364, 366 (Ind. Ct. App. 2013). The abuse of
discretion argument is therefore not available to Peverly.
Peverly also argues that she should not have received consecutive sentences
because her crimes were part of a single episode of criminal conduct. Indiana Code
section 35-50-1-2(c) provides:
[E]xcept for crimes of violence, the total of the consecutive terms of
imprisonment . . . to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall not exceed
the advisory sentence for a felony which is one (1) class higher than the
most serious of the felonies for which the defendant has been convicted.
However, Peverly was not convicted of any felonies. The clear and unambiguous
language of the statute requires the defendant to be sentenced for felony convictions in
order to fall within its purview. The statute does not act to limit Peverly’s sentence. See
Dunn v. State, 900 N.E.2d 1291, 1291 (Ind. Ct. App. 2009) (explaining that Indiana Code
section
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35-50-1-2 did not act to limit Dunn’s sentence where he had only misdemeanor
convictions).
Peverly further appears to argue that the trial court did not have the authority to
order the aggregate three-year sentence in this case to run consecutively to the sentence in
Cause Number 1173. In support of her argument, Peverly directs us to Lamirand v. State,
640 N.E.2d 79 (Ind. Ct. App. 1994). Peverly’s reliance on Lamirand is misplaced
because it was decided under a prior version of Indiana Code section 35-50-1-2, which
limited the imposition of consecutive sentences to those occasions when a court was
contemporaneously imposing two or more sentences. Under the current version of the
statute, a trial court may order terms of imprisonment to be served consecutively even if
the sentences are not imposed at the same time. Ind. Code § 35-50-1-2(c). The trial court
had the authority to order consecutive sentences in this case.
Lastly, Peverly contends that the sentence in this case impermissibly modifies the
sentence in Cause Number 1173. Specifically, Peverly points out that she was scheduled
to be released from jail in Cause Number 1173 in March 2013 and placed on home
detention, and that the three-year sentence in this case has delayed her release. However,
where a later imposed sentence is ordered to run consecutively to an earlier imposed
sentence, the defendant will be required to serve both sentences before being released
from incarceration. This is not an impermissible modification of a prior sentence.
Rather, it is a natural consequence of committing an additional offense, or, as in this case,
additional offenses. Accordingly, we find no error.
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II. Appropriateness of Peverly’s Sentence
Peverly also argues that her sentence is inappropriate. Pursuant to Indiana
Appellate Rule 7(B), 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. Reid
v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The defendant has the burden of persuading
us that his or her sentence is inappropriate. Id.As noted above, the trial court sentenced Peverly to an aggregate term of three
years for the three misdemeanor offenses. One year is the maximum sentence for a class
A misdemeanor. Ind. Code § 35-50-3-2. Upon conviction of more than one
misdemeanor offense, the trial court may order the defendant to serve the sentences
consecutively. Carroll v. State, 922 N.E.2d 755, 758 (Ind. Ct. App. 2010).
With regard to the nature of the offenses, Peverly, a 42-year-old licensed clinical
social worker abused her professional relationship with her sixteen-year-old client as well
as flagrantly violated a protective order when she engaged in a sexual relationship with
the young man. Specifically, although the trial court ordered Peverly to cease all contact
with J.P.S., she drove J.P.S. to a state park where they engaged in sexual intercourse, sent
him sexually explicit messages, and encouraged him to help her violate the protective
order.
With regard to the character of the offender, Peverly violated a position of trust
with her adolescent client as well as a protective order when she engaged in a sexual
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relationship with the young man, reminded him she was committing a crime when she
contacted him, asked him to cover for her crimes by deleting her sexually explicit
messages, and encouraged him to be dishonest with his parents, who had taken J.P.S. to
see Peverly because they were concerned about his depression and anger management
issues.
Based on the foregoing, we cannot say that Peverly’s three-year aggregate
sentence is inappropriate in light of the nature of the offenses and her character. We
therefore decline to reduce Peverly’s sentence.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.
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