Robert B. Lill v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 17 2019, 9:06 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert B. Lill, April 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2141
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Sally A.
Appellee-Plaintiff. McLaughlin, Judge
Trial Court Cause No.
15D02-0708-FC-21
Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 1 of 12
Case Summary
[1] Robert Lill appeals the trial court’s sentencing decision after he admitted to
violating probation for Class C felony child exploitation. We affirm.
Issue
[2] Lill raises one issue, which we restate as whether the trial court abused its
discretion by requiring him to serve four years of his previously-suspended
eight-year sentence and adding one year to his probation.
Facts and Procedural History
[3] On August 1, 2007, detectives at the Dearborn County Sheriff’s Department
received a complaint that Lill was using computers at a local technical school to
view and download child pornography. Lill had used a thumb drive to
download and trade photos of children engaged in sex acts with adults. Some
of the images on the drive were of children as young as three years old. Lill
told the detective assigned to the case that “his favorite age was 10 to 13 years.”
Appellant’s App. Vol. 2, p. 20. Lill was eventually charged with nine counts of
child exploitation and nine counts of possession of child pornography.
[4] On February 26, 2009, Lill pleaded guilty to two counts of Class C felony child
exploitation. The remaining counts were dismissed. The trial court accepted
Lill’s plea and ordered him to serve eight years on the first count with zero days
suspended. Regarding the second count, he was sentenced to eight years, all of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 2 of 12
which were suspended to probation, with probation scheduled to end on July 6,
2019. Under the terms of probation, Lill was ordered not to access the internet
or any online service, through use of either a computer, cell phone, iPod, Xbox,
Blackberry, personal digital assistant, pager, palm pilot, television, or any other
electronic device.
[5] On June 19, 2018, the State filed a request for a probation violation hearing.
The request alleged that Lill violated the terms of his probation when he was
seen accessing the internet on two separate occasions – on June 7, 2018, at the
Ohio County public library, and on June 18, 2018, at the Lawrenceburg public
library. At the Lawrenceburg library, Lill’s probation officer saw him using the
internet to search for jobs and also to search for information on whether dogs
can smell electronic devices. Regarding the dog search and why it concerned
her, Lill’s probation officer testified as follows:
At that time, that was concerning to me because we had done a
home visit on June 12th with the U.S. Marshals, and in searching
of the home[,] Robert Lill was acting suspicious and he was
asked if there was [sic] any electronics, and he said no. The U.S.
Marshal said well we would bring – we’ll have a canine come in
and smell for electronics, and if, you know, now’s your chance,
you know, to advise us. He said no. The dog never came. So,
with that being said I approached Mr. Lill in the library as the
screen was up when he was reading can dogs smell electronics,
and I asked him what he was doing. He said he was looking for
jobs, and I said, well, looking for dogs smelling electronics is not
searching for jobs, and I said, you know, you are looking at this
because of our interaction with you when we did a home visit.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 3 of 12
Tr. p. 19. At the time the request was filed, Lill had served his entire eight-year
executed sentence and had completed almost seven full years of the eight years
suspended to probation.
[6] Lill’s revocation hearing was held on July 24, 2018, during which he admitted
to the probation violation. Based upon the admission, the trial court found he
had violated his probation.
[7] A sentencing hearing was held on August 7, 2018. After hearing the evidence,
the trial court sentenced Lill to serve four years of his previously-suspended
eight-year sentence and extended the term of his probation by one year. Lill
appeals.
Discussion and Decision
[8] Lill argues that the trial court abused its discretion by ordering him to serve a
portion of his previously-suspended eight-year sentence “[i]n light of [his]
substantial record of compliance with the terms of his probation and the
relatively technical nature of his violation.” Appellant’s Br. p. 9. He maintains,
essentially, that he should be afforded leniency in sentencing because he has
“demonstrated a consistent history of admitting to his mistakes and taking
1
responsibility for them.” Id. at 13.
1
Sua sponte, we note that the trial court’s order directing Lill to serve a portion of his previously-suspended
sentence does not contravene statutory authority even though he had nearly completed the probationary
period. See Wann v. State, 997 N.E.2d 1103, 1107-08 (Ind. Ct. App. 2013) (where Wann, who violated
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 4 of 12
[9] Indiana Code section 35-38-2-3 (2015) governs the violation of conditions of
probation. Subsection (h) provides:
If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may impose one
(1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
[10] In general, we review a challenge to a trial court’s sentence for an abuse of
discretion. Adams v. State, 960 N.E.2d 793, 796 (Ind. 2012) (citing Anglemyer v.
State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007)).
“An abuse of discretion occurs when the decision clearly contravenes the logic
and effect of the facts and circumstances before the court.” Id. at 796-97.
Likewise, a trial court’s sentencing decisions for probation violations are
reviewable using the abuse of discretion standard. Prewitt v. State, 878 N.E.2d
probation and was ordered to serve ninety days of his previously-suspended sentence, claimed his one-year
sentence had been fully served because he had served 308 days on probation and eighty-two days
incarcerated (inclusive of good time credit) and asked for a determination that “for each day he served on
probation he also served one day of his suspended sentence,” which request we rejected, holding that the trial
court’s order directing him to serve ninety days of his previously-suspended sentence did not contravene
statutory authority), relying in part on Jennings v. State, 982 N.E.2d 1003 (Ind. 2013).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 5 of 12
184, 188 (Ind. 2007). “Once a trial court has exercised its grace by ordering
probation rather than incarceration, the judge should have considerable leeway
in deciding how to proceed.” Id. “If this discretion were not afforded to trial
courts and sentences were scrutinized too severely on appeal, trial judges might
be less inclined to order probation to future defendants.” Id. A trial court is not
required to balance “aggravating or mitigating circumstances when imposing
sentence in a probation revocation proceeding.” Treece v. State, 10 N.E.3d 52,
59-60 (Ind. Ct. App. 2014) (citing Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct.
App. 1993), overruled in part by Patterson v. State, 659 N.E.2d 220, 223 n.2 (Ind.
Ct. App. 1995)), trans. denied.
[11] In support of his arguments, Lill specifically maintains that when he was
arrested for the child exploitation and pornography offenses, he “admitted his
crime right away;” he served his eight-year executed sentence and almost seven
years of his eight-year suspended sentence “without ever having received even a
minor violation;” he “never had a positive drug screen result for alcohol or
drugs;” he met regularly with his probation officer and completed the tasks
assigned to him by probation; he paid his fees; and, when he violated his
probation, he readily admitted to the violation. Appellant’s Br. p. 11. In an
attempt to explain the probation violation, Lill claims that he “discussed
looking for a job with probation;” “having misunderstood the discussion, [he]
went to the public library to apply for jobs online . . . [; and a]s it happened, his
probation officer arrived as [he] was looking up the dog question . . . .” Id. at
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 6 of 12
11-12. He emphasizes that “[t]here was no allegation or even indication that he
was on the internet to look at child pornography.” Id. at 12.
[12] We are not persuaded by these arguments, and Lill’s claims that he exhibited
model behavior while on probation and that his violation was “relatively
technical in nature” are, likewise, unavailing. Id. The record reveals that Lill
knew that, as a condition of his probation, he was not allowed to access the
internet. His probation officer testified that, a few days before Lill violated his
probation by accessing the internet at the Ohio County public library, she and
Lill “specifically talked about the internet.” Tr. p. 19. She explained to Lill
that he was not allowed to access the internet; and, Lill told her he did not want
internet access available to him because he “did not want that temptation.” Id.
Despite the admonition, Lill accessed the internet. Lill’s probation officer met
with him again, on June 18, 2018. Approximately one hour later, the officer
was notified that Lill was at the Lawrenceburg public library, accessing the
internet. What concerned the trial court about the violation was that Lill’s
unauthorized use of the internet was similar to his use of the internet when he
committed child exploitation, that is, he used a public terminal to commit the
crimes. Given these circumstances and that the trial court is not required to
consider mitigating circumstances when imposing a sanction for a probation
violation, we cannot say that the trial court abused its discretion in ordering Lill
to serve four years of his previously-suspended sentence.
[13] Lill also argues that the trial court abused its discretion by extending his
probation by one year. According to Lill, the “imposition of an additional year
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 7 of 12
of probation, on top of the maximum eight (8) year suspended sentence has the
effect of forcing Lill to serve more than the maximum sentence allowed by
law.” Appellant’s Br. p. 13. We disagree. As noted above, “[i]f the court finds
that the person has violated a condition at any time before termination of the
period, and the petition to revoke is filed within the probationary period, the
court may . . . [e]xtend the person’s probationary period for not more than one
(1) year beyond the original probationary period.” Ind. Code § 35-38-2-3(h)(2).
At the time Lill violated his probation, he had a little over one year remaining
in his original probationary period. Thus, the trial court was well within its
discretion to extend Lill’s probationary period by one year.
Conclusion
[14] The trial court did not abuse its discretion by ordering Lill to serve four years of
his previously-suspended eight-year sentence and extending his probation by
one year. We affirm.
[15] Affirmed.
Kirsch, J., concurs.
Baker, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 8 of 12
IN THE
COURT OF APPEALS OF INDIANA
Robert B. Lill, Court of Appeals Case No.
18A-CR-2141
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Baker, Judge, dissenting.
[16] Because I believe the trial court has inappropriately ordered Lill to serve four
years of his previously-suspended eight-year sentence, I respectfully dissent. I
take issue with two things.
[17] First, I decry the trial court’s imposition of such a harsh condition of probation.
It is well established that probation conditions “may impinge upon a
probationer’s right to exercise an otherwise constitutionally protected right
because ‘probationers simply do not enjoy the freedoms to which ordinary
citizens are entitled.’” Patton v. State, 990 N.E.2d 511, 515 (Ind. Ct. App. 2013)
(quoting Purdy v. State, 708 N.E.2d 20, 22 (Ind. Ct. App. 1999)). But when a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 9 of 12
condition of probation amounts to a blanket ban on internet access, it becomes,
I believe, unreasonably burdensome.
[18] Our Supreme Court has discussed internet restrictions as conditions of
probation:
As we said, we live in an internet-saturated society. Cyberspace
presents the primary conduit for information and communication.
Given the importance and prevalence of the internet in today’s
world, we must decide when it is reasonable to curtail a
probationer’s internet access. Put differently, when is an internet
restriction reasonably related to the probationer’s rehabilitation
and reintegration into society, and when does it protect the public
from future harm?
Weida v. State, 94 N.E.3d 682, 692 (Ind. 2018).
[19] Here, the State undoubtedly has an interest in protecting the public safety by
restricting Lill’s internet access given the nature of his criminal acts. However,
Lill also has an interest in reintegrating with society, and a primary method of
doing so in today’s day and age is through internet access and broadband
communication. See id. at 687 (explaining that “[w]e apply for jobs, we file tax
returns, we pay bills, we attend college, we read the news, we navigate, we
communicate, we shop—all online[]”). The record shows that Lill was using
the internet to search for jobs, a key tool for those looking to rehabilitate
themselves after serving time. Although Lill did not challenge this condition of
probation as unconstitutionally broad or burdensome on appeal, I admonish
trial courts to avoid similarly wide-ranging internet bans in the future. See
Bratcher v. State, 999 N.E.2d 864, 878-79 (Ind. Ct. App. 2013) (finding that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 10 of 12
defendant’s internet restriction was reasonable where he could not access
websites or domains “frequented by children” but could otherwise check his
work email, visit other websites, and post on social media); see also Smith v.
State, 779 N.E.2d 111, 118-19 (Ind. Ct. App. 2002). In other words, it would
have been a reasonable condition of probation to restrict Lill from visiting
certain websites; a complete ban on internet access goes too far.
[20] Second, the trial court’s order that Lill serve four years of his previously-
suspended eight-year sentence is unduly severe. This is not to say that the
crimes to which Lill pleaded guilty did not warrant punishment. But, I take
issue with the majority’s dismissal of Lill’s arguments that he had complied
substantially with the terms of his probation and that he has exhibited excellent
behavior since pleading guilty. While the trial court is not required to consider
mitigating factors when imposing a sanction for probation, Treece v. State, 10
N.E.3d 52, 59-60 (Ind. Ct. App. 2014), Lill’s record is telling.
[21] Lill pleaded guilty to his crimes almost immediately, he never tested positive for
alcohol or drugs, he worked closely and communicated frequently with his
probation officer, he paid his fees, and, as far as the record shows, he never
accessed the internet during his probation. And, after his parole officer found
him on the internet, Lill readily admitted to the violation and explained why he
logged on in the first place. Nothing suggests that Lill planned to access the
internet on that day to search for, download, or view child pornography. All
evidence indicates that Lill was searching for a job after his conversation about
employment options with his probation officer left him confused. And, Lill’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 11 of 12
Google search on whether dogs can sniff out electronic devices could be viewed
as Lill simply testing the veracity of the probation officer’s claims rather than as
an attempt to intentionally circumvent the conditions of his probation.
[22] Lill committed a heinous crime, and the State offered him a generous plea
bargain, to which he agreed. And, Lill did violate a term of his probation.
However, to penalize someone for wanting to integrate back into society with
four additional years of incarceration is unreasonably stringent, especially when
Lill only had one year left of his sentence. In so doing, the majority sets a
unusually harsh, zero-tolerance policy for even the most minor of violations.
While “violation of a single condition of probation is sufficient to revoke
probation[,]” Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007), such a
revocation and subsequent imposition of years for this type of infraction is
draconian at best.
[23] For the foregoing reasons, I would reverse the trial court’s sentencing decision.
I respectfully dissent.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2141 | April 17, 2019 Page 12 of 12