Joshua J. Kelp v. State of Indiana , 119 N.E.3d 1071 ( 2019 )

FILED
Feb 14 2019, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, P.C. Attorney General of Indiana
Lafayette, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua J. Kelp, February 14, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1719
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1802-F4-2
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019 Page 1 of 9
[1] Joshua J. Kelp appeals following his convictions of Level 4 felony child
exploitation, 1 Level 5 felony child exploitation, 2 and Level 5 felony possession
of child pornography. 3 Kelp argues:
(1) the trial court abused its discretion by considering a material
element of his crime as an aggravator;
(2) his ten-year sentence is inappropriate; and
(3) the language in Special Probation Condition 12 is overly
broad and vague.
We affirm in part and remand in part with instructions.
Facts and Procedural History
[2] From July 1, 2016, to August 31, 2017, Kelp collected pornographic images of
children under the age of eighteen, some of whom had not yet reached puberty.
Kelp also traded these images with people on the internet. When confronted by
law enforcement, Kelp admitted to collecting and distributing the pornographic
images. Kelp said he had been in possession of child pornography for five years
1
Ind. Code § 35-42-4-4(b)(2) & (c)(1).
2
Ind. Code § 35-42-4-4(b)(2).
3
Ind. Code § 35-42-4-4(d) & (e)(1).
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and he might possess as many as one thousand pornographic images of
children.
[3] On September 7, 2017, the State charged Kelp with one count of Level 4 felony
child exploitation. On February 8, 2018, under a separate cause number, the
State charged Kelp with one count of Level 4 felony child exploitation, two
counts of Level 5 felony child exploitation, one count of Level 5 felony
possession of child pornography, two counts of Level 6 felony possession of
child pornography, 4 and one count of Class D felony possession of child
pornography. 5 On the State’s motion, the trial court consolidated the two cause
numbers.
[4] Kelp pled guilty to one count of Level 4 felony child exploitation, one count of
Level 5 felony child exploitation, and one count of Level 5 felony possession of
child pornography, in exchange for the dismissal of the remaining charges. The
trial court sentenced Kelp to ten years for Level 4 felony child exploitation, five
years for Level 5 felony child exploitation, and five years for Level 5 felony
possession of child pornography. The trial court ordered the sentences be
served concurrently, with seven years executed and three years suspended to
probation. Kelp was ordered to comply with all rules of the Indiana Special
Probation Conditions for Adult Sex Offenders, except for Rules 1, 5, 6, and 19.
4
Ind Code § 35-42-4-4(d).
5
Ind. Code § 35-42-4-4(c) (2013).
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Discussion and Decision
Abuse of Discretion
[5] Kelp argues the trial court abused its discretion by improperly considering
Kelp’s trading of the pornographic images an aggravating factor. “We initially
observe that sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion.” Gleason v.
State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). An abuse of discretion occurs
if the trial court’s decision is “clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).
The trial court can abuse its discretion by: (1) issuing an
inadequate sentencing statement, (2) finding aggravating or
mitigating factors that are not supported by the record, (3)
omitting factors that are clearly supported by the record and
advanced for consideration, or (4) finding factors that are
improper as a matter of law.
Gleason, 965 N.E.2d at 710.
[6] Kelp claims the court abused its discretion when it considered the trading of
pornographic images of children on the internet to be an aggravator because
trading the images is a material element of child exploitation. Kelp is correct
that a trial court may not use a material element of an offense as an aggravator.
See Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000) (essential element of a
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conviction was not allowed to be considered as an aggravating circumstance),
reh’g denied, distinguished on other grounds by Frances v. State, 817 N.E.2d 235 (Ind.
2004). However, after reviewing the record, we believe the court’s error in this
case was harmless.
[7] When a trial court considers an improper aggravator, we may nevertheless
affirm the sentence if we can “say with confidence that the trial court would
have imposed the same sentence.” Webb v. State, 941 N.E.2d 1082, 1090 (Ind.
Ct. App. 2011) (affirming despite trial court’s failure to consider guilty plea a
mitigator), trans. denied. In addition to the trading of the images, the trial court
found the seriousness of Kelp’s offense and the length of time Kelp participated
in the activity as aggravators. Kelp possessed over a thousand pornographic
images of children, some of which were “horrible” images of children forced to
do “unnatural” things. (Tr. Vol. II. at 43.) Many of the images were of children
who were clearly under the age of twelve, as they had not yet reached puberty.
As such, we are confident the trial court would have reached a ten-year
sentence regardless whether the court would have considered his trading of the
images as an aggravator. See, e.g., Webb, 941 N.E.2d at 1090 (affirming
sentence despite abuse of discretion).
Inappropriate Sentence
[8] Kelp argues his sentence is inappropriate in light of the nature of his offense and
his character.
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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.” Ind. Appellate Rule 7(B).
“Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions,
Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849
N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
quotation marks omitted). “[W]hether we regard a sentence as
appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
In addition to the “due consideration” we are required to give to
the trial court’s sentencing decision, “we understand and
recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[9] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The sentencing guideline for a Level 4 felony is a fixed term between
two and ten years with the advisory sentence being six years. The trial court
sentenced Kelp to ten years; thus, on this charge, he received the maximum
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sentence. The sentencing guideline for a Level 5 felony is a fixed term between
one and six years with an advisory sentence of three years. The trial court
sentenced Kelp to five years for each Level 5 felony; thus, he received a
sentence above the advisory but below the maximum. Kelp was ordered to
serve all the sentences concurrently, such that he received a cumulative
sentence that was less than the possible maximum sentence.
[10] Regarding the nature of the offense, the trial court noted the seriousness of
Kelp’s crimes. Kelp possessed over one thousand pornographic images of
children. Among these images were children “obviously under the age of
twelve” or who “hadn’t reached puberty.” (Tr. Vol. II at 16.) Through his
actions, Kelp “perpetuated the victimization” of an unknown number of
children. See Brown v. State, 912 N.E.2d 881, 902 (Ind. Ct. App. 2000)
(defendant’s possession of pornographic images of children younger than
sixteen permitted an aggravated sentence), trans. denied.
[11] As to Kelp’s character, the trial court acknowledged Kelp had no criminal
record, was employed, and was remorseful. However, as pointed out by the
trial court, those factors are diminished by Kelp’s actions. Despite not having a
criminal history, Kelp admitted to possessing pornographic images of children
for five years prior to his arrest. See Wright v. State, 108 N.E.3d 307, 320 (Ind.
2018) (crimes committed by the defendant, including downloading child
pornography, could not be redeemed by his positive character traits).
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[12] Given the nature of the offense, i.e., the heinous images Kelp possessed, and the
character of the offender, i.e., Kelp had been collecting these images for five
years prior to being arrested, we cannot say Keller’s ten-year sentence is
inappropriate. See Schroeder v State, 998 N.E.2d 279, 285 (Ind. Ct. App. 2013)
(exploitation of children through videos and images allowed for an aggravated
sentence). Accordingly, we affirm that sentence.
Probation Condition
[13] Kelp’s final argument is that Special Probation Condition 12 is
unconstitutionally vague and overly broad. 6 “The trial court’s broad discretion
in determining the conditions of probation is limited only by the principle that
the conditions must be reasonably related to the treatment of the defendant and
protection of public safety.” Stott v. State, 822 N.E.2d 176, 179-80 (Ind. Ct.
App. 2005), trans. denied. Special Probation Rule 12 states:
You shall not possess obscene matter as defined by IC 35-49-2-1
or child pornography as defined in 18 U.S.C. § 2256(8), including
but not limited to: videos, magazines, books, DVD’s, and
material downloaded from the Internet. You shall not visit strip
clubs, adult bookstores, motels, specifically operated for sexual
6
The State argues Kelp waived his right to appeal this issue by failing to object to it at sentencing. We have
allowed defendants to appeal their probation terms despite not objecting to them and signing the probation
form stating the probation conditions. See Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct. App. 2007)
(Court considered defendant’s argument regarding probation terms despite the defendant not objecting at
sentencing and signing the probation terms). We exercise our authority to address the constitutional
argument raised by Kelp.
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encounters, peep shows, bars where partially nude or exotic
dancers perform, or businesses that sell sexual devices or aids.
(App. Vol. II at 104.)
[14] In Collins v. State, we held that prohibiting someone from visiting “businesses
that sell sexual devices or aids” was unfairly broad as it “could extend to drug
stores.” 911 N.E.2d 700, 714-715 (Ind. Ct. App. 2009), trans. denied. The
probation condition at issue herein is identical to the one at issue in Collins.
Therefore, we remand to the trial court for clarification of the final clause of
Special Probation Condition 12. See Bleeke v. Lemmon, 6 N.E.3d 907, 921 (Ind.
2014) (Indiana Supreme Court agreed with the rationale in Collins regarding the
overly broad probation condition).
Conclusion
[15] The trial court committed harmless error when it improperly considered Kelp
trading images as an aggravating factor. Also, in light of the nature of Kelp’s
offenses and Kelp’s character, his ten-year sentence is not inappropriate.
However, because Special Probation Rule 12 is overly broad, we remand to the
trial court for clarification.
[16] Affirmed in part and remanded in part with instructions.
Baker, J., and Tavitas, J., concur.
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