Robert J. Love v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 13 2019, 8:38 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chad A. Montgomery Curtis T. Hill, Jr.
Montgomery Law Office, LLC Attorney General of Indiana
Lafayette, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert J. Love, December 13, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-885
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1806-F5-111
Mathias, Judge.
[1] Robert J. Love (“Love”) pleaded guilty in Tippecanoe Superior Court to Level
5 felony child exploitation and three counts of Level 6 felony possession of
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child pornography. Love appeals his aggregate six-year sentence, with eighteen
months suspended to probation, and argues that his sentence is inappropriate in
light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] In September 2017, as a result of a tip from the National Center for Missing and
Exploited Children, the West Lafayette Police Department began investigating
a cloud storage service account associated with the email address
redheadboi21@gmail.com. The user associated with the account, later
identified as Love, had uploaded multiple images and videos of child
pornography. The investigating officers confirmed that the images and videos
depicted prepubescent boys and girls exposing themselves or engaging in sex
acts.
[4] On November 8, 2017, detectives executed a search warrant at Love’s home.
Multiple electronic devices were seized including a laptop, two cell phones, and
an external hard drive. Numerous images and videos depicting children
engaged in sex acts were discovered on Love’s electronic devices. Love
admitted that he and his husband viewed, electronically stored, and sent to
other persons images and videos of children involved in sexual activity.
[5] From January 2017 to November 2017, Love electronically exchanged images
of child pornography with multiple users. Love also solicited images from at
least ten different children via a social media chat application. Love knew that
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the children were under eighteen years old. Love also sent nude photos of
himself to S.W., a sixteen-year-old boy, and the child sent nude images of
himself at Love’s request. Love and S.W. also participated in phone sex with
each other.
[6] On June 21, 2018, the State charged Love with Level 5 felony child solicitation,
Level 5 felony possession of child pornography with an aggravating factor,
three counts of Level 5 felony child exploitation, and six counts of Level 6
felony possession of child pornography. On February 8, 2019, Love pleaded
guilty to one count of Level 5 felony child exploitation against victim S.W. and
three counts of Level 6 felony possession of child pornography. The remaining
seven counts were dismissed. Love agreed that the minimum executed portion
of his sentence would be at least four years, and the maximum executed time
would be seven years.
[7] At the sentencing hearing, the trial court considering the following aggravating
circumstances: the overall seriousness and circumstances of the offenses, the
significant amount of pornography in Love’s possession, Love’s attempts to
electronically conceal his identity, and the young age of the children in the
videos and images. The trial court considered Love’s guilty plea, employment
history, family support, lack of a prior criminal history, participation in jail
programs, and expression of remorse as mitigating circumstances. The court
concluded that the aggravating circumstances outweighed the mitigating
circumstances.
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[8] The court ordered Love to serve four years for the Level 5 felony conviction
and for the Level 6 felony convictions, concurrent terms of two years, with
eighteen months suspended to probation. As required by the plea agreement,
the trial court ordered the sentence for Level 5 felony child exploitation to be
served consecutive to the concurrent sentences imposed for the three Level 6
felony possession of child pornography convictions. Love now appeals.
Discussion and Decision
[9] Love appeals his aggregate six-year sentence and argues that it is inappropriate
in light of the nature of the offense and the character of the offender. Indiana
Appellate Rule 7(B) states that we “may revise a sentence authorized by statute
if, after due consideration of the trial court’s decision, [this] Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.”
[10] In conducting our review, our principal role is to leaven the outliers, focusing
on the length of the aggregate sentence and how it is to be served. Bess v. State,
58 N.E.3d 174, 175 (Ind. 2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct.
App. 2016). This allows for consideration of all aspects of the penal
consequences imposed by the trial court in sentencing, i.e., whether it consists
of executed time, probation, suspension, home detention, or placement in
community corrections, and whether the sentences run concurrently or
consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). We do “not
look to see whether the defendant’s sentence is appropriate or if another
sentence might be more appropriate; rather, the test is whether the sentence is
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‘inappropriate.’” Foutch, 53 N.E.3d at 581 (quoting Barker v. State, 994 N.E.2d
306, 315 (Ind. Ct. App. 2013), trans. denied). The defendant bears the burden of
persuading this Court that his sentence meets the inappropriateness standard.
Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).
[11] The sentencing range for Love’s Level 5 felony conviction was between one and
six years, with the advisory sentence being three years. See Ind. Code § 35-50-2-
6. The sentencing range for Love’s Level 6 felony convictions was between six
months and two and one-half years, with the advisory sentence being one year.
Love’s four-year sentence for the Level 5 felony conviction and his two-year
sentence, with eighteen months suspended to probation, for each Level 6 felony
conviction, are just slightly more than the advisory sentences. And the executed
portion of Love’s sentence is just six months more than the minimum four years
executed that Love agreed to serve in the Department of Correction.
[12] When we consider the nature of Love’s offenses, “the advisory sentence is the
starting point the Indiana Legislature has selected as an appropriate sentence[.]”
Green v. State, 65 N.E.3d 620, 637–38 (Ind. Ct. App. 2016), trans. denied. When
a sentence deviates from an advisory sentence, we consider whether there is
anything more or less egregious about the offense as committed by the
defendant that “makes it different from the ‘typical’ offense accounted for by
the legislature when it set the advisory sentence.” Holloway v. State, 950 N.E.2d
803, 806–07 (Ind. Ct. App. 2011).
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[13] For approximately six months, Love sent nude images of himself to sixteen-
year-old S.W., he requested nude images of S.W., and engaged in phone sex
with S.W. because he thought S.W. might become his boyfriend. Although they
never met in person, Love and S.W. discussed the possibility. Love also
possessed numerous images and videos of children as young as three years old
engaged in sex acts with other children or adults. Love electronically organized
and categorized the images and videos in folders on his hard drive and laptop.
Love traded these images and videos with others on social media applications.
Love used his husband’s email account to obtain or share the pornographic
images and videos in an attempt to conceal his identity. These facts lead us to
conclude that Love’s offenses are more egregious than the typical offenses
described in the relevant statutes.
[14] Love admitted that he began looking for child pornography on the internet
approximately eighteen months before detectives began their investigation.
Although Love admitted to his offenses and expressed remorse at the
sentencing hearing, he initially reported to probation that there were no victims
of his offenses. Love did not appreciate the wrongfulness of his conduct and
stated he used child pornography for sexual gratification. He also implied that
the exploited children depicted in the images and videos were willing
participants. Tr. p. 37. These facts reflect poorly on Love’s character.
[15] After considering the nature of Love’s offenses and his character, Love has not
persuaded us that his aggregate six-year sentence, with eighteen months
suspended to probation, is inappropriate.
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[16] Affirmed.
Robb, J., and Pyle, J., concur.
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