Tommy E. Foster v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 30 2015, 7:54 am
regarded as precedent or cited before any
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
Timothy P. Broden Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tommy E. Foster, December 30, 2015
Appellant-Defendant, Court of Appeals Case No.
79A02-1505-CR-451
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-1401-FC-2
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 1 of 5
Statement of the Case
[1] Tommy E. Foster appeals his sentence following his conviction for child
solicitation, as a Class C felony, and for being a habitual offender following a
guilty plea. Foster raises a single issue for our review, namely, whether his
sentence is inappropriate in light of the nature of his offenses and his character.
We affirm.
Facts and Procedural History
[2] In January of 2014, Foster posted an advertisement on Craigslist seeking a
sexual partner and stating that “age,” among other things, was “not important.”
Appellant’s App. at 53. Lafayette Police Department Sergeant Gossard,1
posing as a thirteen-year-old girl, responded to Foster’s advertisement. When
informed of Sergeant Gossard’s purported age, Foster responded that he was
“cool with your age” and then asked Sergeant Gossard if “she” would perform
oral sex. Id. Foster and Sergeant Gossard exchanged several other sexually
explicit messages thereafter. Eventually, Foster arranged to meet with Sergeant
Gossard for the purpose of engaging in sexual activity. At the arranged time
and place, a local Wendy’s restaurant on the afternoon of January 17, Lafayette
Police Department Detective Pinkard 2 located and arrested Foster.
1
Sergeant Gossard’s first name is not in the record on appeal.
2
Detective Pinkard’s first name is not in the record on appeal.
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 2 of 5
[3] On January 22, the State charged Foster, in relevant part, with child
solicitation, as a Class C felony, and for being a habitual offender. Foster
pleaded guilty to those two charges pursuant to a written plea agreement, which
called for an aggregate executed sentence between eight and twelve years. The
trial court accepted the plea agreement and sentenced Foster to six years for
child solicitation and five years for being a habitual offender, for a total term of
eleven years executed. In entering Foster’s sentence, the court stated:
The Court finds as mitigating factors the defendant plead [sic]
guilty and accepted responsibility, the defendant has family
support[,] and the defendant has mental health issues.
The Court finds as aggravating factors the defendant has a
criminal history, fifteen (15) Petitions to Revoke Probation were
filed with eight (8) found to be true, the defendant was on
probation at the time of the commission of the instant offense,
the defendant has been unsuccessfully released from probation[,]
and the defendant has a history of substance abuse.
The Court further finds that the aggravating factors outweigh the
mitigating factors.
Id. at 24. This appeal ensued.
Discussion and Decision
[4] Foster contends that his sentence is inappropriate in light of the nature of the
offenses and his character. Indiana Appellate Rule 7(B) permits an Indiana
appellate court to “revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 3 of 5
inappropriate in light of the nature of the offense and the character of the
offender.” We assess the trial court’s recognition or non-recognition of
aggravators and mitigators as an initial guide to determining whether the
sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.
Ct. App. 2006). The principal role of appellate review is to attempt to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A
defendant must persuade the appellate court that his or her sentence has met the
inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007).
[5] We initially note that, had he gone to trial, Foster faced a maximum possible
term of twenty years for a Class C felony conviction and for being found to be a
habitual offender. See Ind. Code §§ 35-50-2-6, -8 (2013). However, pursuant to
Foster’s plea agreement, the maximum possible term to which the court could
have sentenced him was twelve years. And, despite finding six aggravators to
outweigh three mitigators, the court actually sentenced Foster to a total term of
eleven years.
[6] With respect to the nature of the offenses, Foster argues that “the police
facilitated an offense that was not [Foster’s] original intent,” and that the
offense occurred “only after police had whetted [his] appetite for a sexual
encounter.” Appellant’s Br. at 5. Foster further argues that he was “only
minimally eligible for the habitual offender enhancement.” Id. And, with
respect to his character, Foster emphasizes his mental illness and downplays his
criminal history.
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 4 of 5
[7] We cannot say that Foster’s eleven-year aggregate sentence is inappropriate
with respect to the nature of the offenses. Foster’s arguments on this issue
ignore the fact that his Craigslist request for a sexual encounter stated that
“age,” among other things, was “not important.” Appellant’s App. at 53.
Foster also ignores the fact that he stated that he was “cool with your age”
when he believed the person responding to his request was a thirteen-year-old
girl. Id. Further, Foster sent numerous sexually explicit messages to a person
he believed to be a thirteen-year-old girl, and he eventually arranged to meet his
target in the hope of furthering his desires. And Foster’s habitual-offender
enhancement was for five years, or one year above the minimum enhancement
required by law and seven years below the maximum enhancement permitted.
See I.C. §§ 35-50-2-6, -8.
[8] Neither can we say that Foster’s sentence is inappropriate in light of his
character. The trial court has already considered Foster’s mental illness vis-à-
vis his criminal record. And Foster has an extensive criminal history, which
includes twenty convictions and numerous probation violations. And he was
on probation at the time of the instant offenses. After considering both the
nature of the offenses and the character of the defendant, we conclude that this
sentence is not inappropriate. We affirm Foster’s sentence.
[9] Affirmed.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 5 of 5