David S. Healey v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDY M. FISHER GREGORY F. ZOELLER
Leonard, Hammond, Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
FILED
Jun 11 2012, 9:55 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
DAVID S. HEALEY, )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-1110-CR-537
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D06-1109-FC-215
June 11, 2012
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
David S. Healey appeals his conviction of three counts of Failure to Register as
Offender,1 all as class C felonies. Healey presents the following restated issues for review:
1. Did the trial court correctly deny Healey’s motion to dismiss, based on
his claim that the Indiana Sex Offender Registration Act (SORA), I.C.
§§ 11-8-8-1 through 11-8-8-22 (West, Westlaw through legislation
effective May 31, 2012) constitutes an ex post facto law in violation of
the United States and Indiana Constitutions as applied to him?
2. Did the trial court abuse its discretion in sentencing Healey and impose
an appropriate sentence?
We affirm and remand with instructions.
On July 7, 1995, Healey pleaded guilty to child molesting as a class C felony. He was
sentenced to eight years imprisonment for this offense, with the sentence to be served
consecutively to a sentence imposed for a conviction in a different county for receiving
stolen auto parts. On July 21, 2009, Healey was charged with failure to register as offender
in Cause No. 02D04-0907-FD-000688. He pleaded guilty and was sentenced to two years
imprisonment.
The present failure-to-register-as-offender charges were initially filed on September
22, 2010 and involved allegations of failing to abide by Internet-use and reporting
requirements.2 A fourth charge under Count IV alleged that Healey, as a sex or violent
offender under I.C. § 11-8-8-5 (West, Westlaw through legislation effective May 31, 2012),
committed the sex offender internet offense of using a social networking website that allowed
1
Ind. Code Ann. § 11-8-8-17 (West, Westlaw through legislation effective May 31, 2012).
2
The amended charging information for Count I is representative of the nature of the alleged violations, viz.,
“David S. Healey … did knowingly or intentionally make a material misstatement or omission while
registering as a sex offender under 11-8-8-11; to wit: failed to notify the appropriate criminal justice institute
and/or sheriff of his social web site username[.]” Appellant’s Appendix at 19 (emphasis supplied). Counts II
2
persons less than eighteen years of age to access or use the website. On January 6, 2011,
Healey filed a motion to dismiss the charges on grounds that subjecting him to the
requirements of the sex offender registry statute constituted ex post facto legislation in
violation of the federal and state constitutions. The trial court denied the motion to dismiss.
A bench trial was held, for which the parties stipulated to the evidence, which consisted of
State’s Exhibits 1-5. Those exhibits included a detailed stipulation to the facts supporting the
charges. The trial court found Healey guilty as charged.3 The trial court sentenced Healey to
the maximum eight years for each of the three failure-to-register offenses, and one year for
the Internet offense, with all sentences to be served concurrently with one another, for a total
executed sentence of eight years.
1.
Healey contends the trial court erred in denying his motion to dismiss, which was
based on his claim that, as applied to him, SORA constitutes an ex post facto law in violation
of the United States and Indiana Constitutions.
Article I, § 10 of the United States Constitution and article 1, § 24 of the Indiana
Constitution prohibit the enactment of any law that “‘imposes a punishment for an act which
and III were identical except for the highlighted portion, which in Counts II and III was replaced by two
separate email addresses obtained by Healey.
3
We note the appendix contains a copy of the October 3 judgment of conviction that states, in relevant part:
“Defendant having entered plea of guilty pursuant to plea agreement, sentencing hearing is held.” Appellant’s
Appendix at 51. This statement is at odds with the rest of the appellate record, including the September 16
Order or Judgment of the Court and the relevant notations on the Chronological Case Summary, and indeed
the transcript of the trial and sentencing hearing, all of which indicate that Healey was found guilty following
a bench trial. We remand this case with instructions to correct the judgment of conviction to reflect a
conviction following a bench trial.
3
was not punishable at the time it was committed; or imposes additional punishment to that
then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v.
Missouri, 71 U.S. 277, 325–26 (1866)). “The underlying purpose of the Ex Post Facto
Clause is to give effect to the fundamental principle that persons have a right to fair warning
of that conduct which will give rise to criminal penalties.” Jensen v. State, 905 N.E.2d 384,
389 (Ind. 2009). Healey contends that as applied to him, SORA violates both the Indiana and
federal constitutional prohibitions against ex post facto laws.
We begin with Healey’s claim under the United States Constitution. In Smith v. Doe,
538 U.S. 84 (2003), the United States Supreme Court determined that Alaska’s sex
registration statute, which is substantially similar to Indiana’s, does not violate the Federal
Constitution’s Ex Post Facto Clause, see Wallace v. State, 905 N.E.2d 371, 374 (Ind. 2009),
because it is “non-punitive and create[s] a civil regime.” Healey contends that Smith and
Wallace do not apply in his case because “[t]his is a case of first impression … following the
Indiana Supreme Court decisions in Wallace and [Jensen v. State, 905 N.E.2d 384] as Mr.
Healey falls directly between the originally codified version of the sex offender registry and
the 1995 amendments requiring ten (10) years of registration.” Appellant’s Brief at 10. The
dates to which Healey refers spanned from the enactment of SORA’s registration
requirement to the enactment of the 1995 amendments. Those amendments increased the
length of time that offenders were required to register.
We conclude that the Smith rationale is broad enough to include challenges such as
Healey presents in the present case. Pursuant to Smith, we hold that, as applied to Healey,
the lengthened registering requirement under the 1995 amendment to SORA does not
4
contravene Article I, § 10 of the United States Constitution. See also Jensen v. State, 905
N.E.2d at 390 (“[i]n Wallace we noted that the United States Supreme Court has concluded
that … Alaska’s Sex Offender Registry Act, which is very similar to Indiana’s Act, does not
violate the Ex Post Facto Clause of the United States Constitution . . . [w]e thus proceeded to
evaluate Wallace’s claim under the Indiana Constitution”).
Healey contends the 1995 amendment to SORA violates the Indiana Constitution’s ex
post facto prohibition as applied to him. Healey’s 1995 conviction of the lesser-included
offense of class C felony child molesting, with an offense date of September 20, 1994,
subjected him to the sex offender registration requirements. The initial version of SORA
took effect on July 1, 1994. Act of March 2, 1994, Pub.L. No. 11-1994, § 7 (codified as I.C
§§ 5-2-12-1 - 5-2-12-13) (current version at I.C. §§ 11-8-8-1 to 11-8-8-22). Because this was
prior to the time Healey committed his underlying sex-offender offense, the 1994 version of
SORA was applicable and therefore did not pose an ex post facto problem. The 1994 version
of SORA would have required Healey to register as a sex offender within seven days of
arriving in the law enforcement jurisdiction where he intended to reside, and would have
required him to continue to register until he was no longer on probation or had been
discharged from parole.
Healey was released from parole on July 20, 2003. Had the 1994 version of SORA
been in effect, Healey’s duty to register would have expired on that day. In July 1995,
however, an amendment took effect that extended the length of time that an offender was
required to register – to ten years after the date the offender was released from prison, placed
on parole, or placed on probation, whichever occurred last. See I.C. § 5-2-12-13 (1995)
5
(repealed by P.L. 140-2006, Sec. 41 and recodified under I.C. § 11-8-8-19). The 1995
amendment was therefore in effect at the time that Healey was discharged from parole on his
qualifying offense. Healey contends that extending his reporting requirement by ten years
under the 1995 version of SORA and using that extended requirement to charge him with
failure to report in the present offense constitutes an ex post facto violation.
We evaluate ex post facto claims under the Indiana Constitution by applying the
“intent-effects” test. Jensen v. State, 905 N.E.2d at 390. We must first determine whether
the legislature meant the statute to establish civil proceedings. Jensen v. State, 905 N.E.2d
384. If the legislature intended to impose punishment, our inquiry is at an end because
punishment results. Id. On the other hand, if we conclude the legislature intended a non-
punitive regulatory scheme, we must further examine whether the scheme is nevertheless “so
punitive in effect as to negate that intention thereby transforming what was intended as a civil
regulatory scheme into a criminal penalty.” Id. at 390.
Healey contends the 1995 amendments had a punitive effect because they increased
by ten years the period of time an offender was required to register. Our Supreme Court has
repeatedly declined to hold that the legislature intended the registration requirement in SORA
as a criminal penalty. In so doing, the Court acknowledged that “it is difficult to determine
any intent [with respect to SORA] given the lack of legislative history and purpose
statement.” Lemmon v. Harris, 949 N.E.2d 803, 810 (Ind. 2011). Moreover, our courts have
repeatedly noted when considering ex post facto challenges to SORA that the burden of
proving a statute unconstitutional is assigned to the party challenging a statute on that basis,
because every statutes come before us “clothed with the presumption of constitutionality
6
until that presumption is clearly overcome by a contrary showing.” Jensen v. State, 905
N.E.2d at 390. The Court has also noted that “the [overall] Act advances a legitimate
regulatory purpose,” namely, “public safety.” State v. Pollard, 908 N.E.2d 1145, 1149 (Ind.
2009). For these reasons, the Court has assumed without deciding that “the legislature’s
intent was to create a civil, non-punitive, regulatory scheme.” Id. at 1150. This has been the
result even in response to a challenge to an amendment that resulted in an offender post-
conviction reclassification as an SVP, which had the effect of converting his ten-year
registration requirement into a lifetime-registration requirement. See Lemmon v. Harris, 949
N.E.2d 803 (discussing the 2007 amendment to SORA). Surely Healey’s argument is no
more compelling than that. Similarly, we assume without deciding that the 1995 amendment
to SORA increasing the length of time of the registration requirement was intended as an
amendment to a civil regulatory scheme. See also, e.g., Spencer v. O’Connor, 707 N.E.2d
1039, 1043 (Ind. Ct. App. 1999) (registration “provisions evidence an intent to monitor the
whereabouts of the offender, not to punish the offender”), trans. denied.
Having found no punitive intent on the part of the Legislature, we must now determine
whether the effects of applying the regulatory scheme embodied in the 1995 Amendment is
punitive as to Healey. In so doing, we assess the following factors, established by the United
States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):
[1] Whether the sanction involves an affirmative disability or restraint, [2]
whether it has historically been regarded as punishment, [3] whether it comes
into play only on a finding of scienter, [4] whether its operation will promote
the traditional aims of punishment—retribution and deterrence, [5] whether the
behavior to which it applies is already a crime, [6] whether an alternative
purpose to which it may rationally be connected is assignable for it, and [7]
whether it appears excessive in relation to the alternative purpose assigned.
7
Lemmon v. Harris, 949 N.E.2d at 810 (quoting Wallace, 905 N.E.2d at 379).
The first of the Mendoza-Martinez factors considers whether the sanction involves an
affirmative disability or restraint. Our Supreme Court has observed that “through aggressive
notification of their crimes, [SORA] exposes registrants to profound humiliation and
community-wide ostracism”, among other things. Wallace v. State, 905 N.E.2d at 380.
Thus, the Court concluded, “[c]onsidered as a whole [SORA]’s registration and notification
provisions impose substantial disabilities on registrants.” Id. On the other hand, in Jensen,
the defendant pleaded guilty to, among other things, vicarious sexual gratification under Ind.
Code Ann. § 35-42-4-5 (West, Westlaw through legislation effective May 31, 2012). At the
time the defendant pleaded guilty, SORA required that he register as a sex offender for a
period of ten years following his release from prison and probation. In 2006, however, the
Legislature amended SORA such that a defendant who committed an offense qualifying the
defendant as a “sexually violent predator” under I.C. § 11-8-8-19 must register for life.
Jensen was informed that pursuant to the amendment, he would now have to register for life.
He appealed that determination ultimately to the Supreme Court, which noted that the
“disabilit[ies] or restraint[s]” described in Wallace “applied to Jensen even before his offense
qualified him as a sexually violent predator” and that “nothing mentioned above imposes any
greater burden on Jensen or has any greater adverse affect now that he is required to register
for a longer period.” Jensen v. State, 905 N.E.2d at 391-92. Finally, however, the Court
acknowledged that based upon the new status, he would be required to inform authorities of
plans to travel from his principal place of residence for more than 72 hours and to re-register
8
for the rest of his life. Taken as a whole, the Court concluded that the restraints resulting
from the amendment leaned “slightly in favor of treating the effects of the Act as punitive
when applied to Jensen.” Id. at 392.
The primary effect of the 1995 amendment was to extend by ten years the period of
time that Healey was required to register. In Jensen, the Court noted the extension of the
registration requirement from ten years to life, but, even when including the requirement to
report travel plans, the Court concluded that the additional restraints leaned only slightly in
favor of treating the effects as punitive. By comparison, we believe that increasing the
registration requirement by ten years does not favor treating the effects of the 1995
amendment as punitive as applied to Healey.
The second factor involves a determination of whether the reporting requirement has
historically been regarded as a punishment. Again, our Supreme Court has weighed in on
this question and determined that it has. See, e.g., Wallace v. State, 905 N.E.2d at 380-81
(“[a]side from the historical punishment of shaming, the fact that [SORA’s] reporting
provisions are comparable to supervised probation or parole standing alone supports a
conclusion that the second Mendoza–Martinez factor favors treating the effects of the Act as
punitive when applied in this case”). This factor favors treating the effects of the 1995
amendment as punitive as applied to Healey. See also Jensen v. State, 905 N.E.2d 384.
The third factor considers whether the 1995 amendment comes into play only on a
finding of scienter. On this factor, our Supreme Court has stated, SORA “overwhelmingly
applies to offenses that require a finding of scienter for there to be a conviction. The few
exceptions do not imply a non-punitive effect. We conclude that the third Mendoza–Martinez
9
factor slightly favors treating the effects of [SORA] as punitive when applied here.” Wallace
v. State, 905 N.E.2d at 381.
The fourth factor considers “‘whether [the statute’s] operation will promote the
traditional aims of punishment—retribution and deterrence.’” Jensen v. State, 905 N.E.2d at
393 (quoting Mendoza–Martinez, 372 U.S. at 168). In applying this factor, we are mindful of
the underlying assumption that if the statute in question promotes the traditional aims of
punishment, it is more likely punitive than regulatory. Jensen v. State, 905 N.E.2d 384. The
Court’s explanation of its conclusion that the legislation extending Jensen’s registration
requirement from ten years to life was non-punitive as to him applies equally to application
of the 1995 amendment to Healey, i.e.:
There is no question that the Act’s deterrent effect is substantial and that the
Act promotes community condemnation of offenders—both of which are
traditional aims of punishment. But this is so whether applied to an offender
who is required to register for ten years or an offender required to register for
life. Essentially, as to this factor Jensen is in no different position now than he
was before the Act was amended in 2006.
Id. at 393. Therefore, the fourth factor favors treating the effects of the 1995 amendment as
non-punitive when applied to Healey.
The fifth factor considers “‘whether the behavior to which [the statute] applies is
already a crime.’” Id. (quoting Mendoza–Martinez, 372 U.S. at 168). Again, we reach the
same conclusion on this factor that the Supreme Court did in Jensen, and upon the same
reasoning, i.e.:
The fact that a statute applies only to behavior that is already and exclusively
criminal supports a conclusion that its effects are punitive. There is no question
that it is the determination of guilt for the offense of vicarious sexual
gratification that triggered Jensen’s lifetime registration requirement. This
10
seems to support the view that the effects of the statute are punitive. However,
when Jensen pleaded guilty to this offense in January 2000 he also was
required to register as a sex offender, albeit for ten years. In short, Jensen’s
behavior was criminal both before and after the 2006 amendment. With the
exception of an extended period of registration, Jensen is in the exact position
he was in when he pleaded guilty. We conclude the fifth Mendoza–Martinez
factor favors treating the effects of the Act as non-punitive when applied to
Jensen.
Id. (citation to authority omitted). Similarly, Healey’s conviction of child molesting
triggered his registration requirement. When he pleaded guilty, he was required to register as
a sex offender, although the registration period ended sooner. Thus, his behavior was
criminal both before and after the 1995 amendment. With the exception of an extended
period of registration, Healey is in exactly the same position he was in when he pleaded
guilty. See Jensen v. State, 905 N.E.2d 384. Accordingly, the fifth Mendoza–Martinez
factor favors treating the effects of the 1995 amendment as non-punitive when applied to
Healey.
The sixth factor considers whether “‘an alternative purpose to which [the statute] may
rationally be connected is assignable for it.’” Id. at 393 (quoting Mendoza–Martinez, 372
U.S. at 168–69). Restated, this asks whether SORA advances a legitimate regulatory
purpose. Jensen v. State, 905 N.E.2d 384. The Supreme Court in Jensen answered this
unequivocally in the affirmative. Therefore, the sixth Mendoza–Martinez factor also favors
treating the effects of SORA as non-punitive when applied to Healey
The seventh and final factor considers “‘whether [the Act] appears excessive in
relation to the alternative purpose assigned.’” Id. at 393-94 (quoting Mendoza–Martinez, 372
U.S. at 169). As our Supreme Court noted in Wallace, “a number of courts give greatest
11
weight to this factor.” Wallace v. State, 905 N.E.2d at 383. Although our Supreme Court
described SORA’s registration requirements as “broad and sweeping”, id., they were in place
and applied to Healey at the time of his guilty plea in July 1995. The only thing that changed
with the enactment of the 1995 amendments was the extension of the registration period,
which the Court held in Jensen did not render the amendment in that case punitive.
Therefore, the seventh Mendoza-Martinez factor favors treating the effects of the 1995
amendment as non-punitive when applied to Healey.
Of the seven factors identified by Mendoza–Martinez as relevant to the inquiry of
whether a statute has a punitive effect despite legislative intent that the statute be regulatory
and non-punitive, only two lean in favor of treating the effects of the 1995 amendment as
punitive when applied to Healey. The remaining factors lean in the opposite direction, even if
slightly. Significantly, the seventh and perhaps most important Mendoza–Martinez factor,
leans in favor of treating the amendment as non-punitive when applied to Healey. Therefore,
we conclude that Healey has not carried his burden of demonstrating that as applied to him,
the 1995 amendment violates the Indiana constitutional prohibition against ex post facto
laws.
2.
Healey contends the trial court abused its discretion in sentencing him and imposed an
inappropriate sentence. Sentencing decisions rest within the sound discretion of the trial
court. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
With the exception of our authority to review sentences under Ind. Appellate Rule 7(B), as
long as a defendant’s sentence is within the statutory range, it is reviewed only for an abuse
12
of discretion. Id. An abuse of discretion occurs if the trial court’s decision is clearly against
the logic and effect of the facts and circumstances and the reasonable inferences to be drawn
therefrom. Id. Circumstances under which a trial court may be found to have abused its
discretion include: (1) failing to enter a sentencing statement, (2) entering a sentencing
statement that includes reasons not supported by the record, (3) entering a sentencing
statement that omits reasons clearly supported by the record, or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. Where a trial court
has identified proper aggravating and mitigating circumstances, however, “[t]he relative
weight or value assignable to reasons properly found or those which should have been found
is not subject to review for abuse.” Id. at 491.
When imposing a sentence for a felony, a trial court must enter a sentencing statement
that includes a reasonably detailed recitation of its reasons for imposing the sentence.
Anglemyer v. State, 868 N.E.2d 482. A trial court abuses its discretion if its reasons and
circumstances for imposing the sentence are 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. Hollin v. State, 877 N.E.2d 462 (Ind. 2007). If the statement includes a
finding of aggravating and/or mitigating circumstances, then the statement must identify all
significant mitigating and aggravating circumstances. Anglemyer v. State, 868 N.E.2d 482.
Finally, we note that the determination of mitigating circumstances is within the
discretion of the trial court. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007), trans.
denied. The trial court is not obligated to accept the defendant’s argument as to what
constitutes a mitigating factor, and a trial court is not required to give the same weight to
13
proffered mitigating factors as does a defendant. Id. A trial court does not err in failing to
find a mitigating factor where that claim is highly disputable in nature, weight, or
significance. Id. An allegation that a trial court abused its discretion by failing to identify or
find a mitigating factor requires the defendant on appeal to establish that the mitigating
evidence is significant and clearly supported by the record. Id.Healey first contends that the trial court erred in failing to find as a mitigator that he
accepted responsibility for his actions, in that he “stipulated to all facts of the case and
waived jury trial, sparing both significant time and expense for the State of Indiana.”
Appellant’s Brief at 20. Although Healey did indeed admit to the underlying facts that
supported the charges against him, this is not to say that he accepted responsibility for them.
To accept responsibility for one’s actions means more than merely admitting the deed, it also
connotes a sense of accountability, a willingness to accept the legal consequences flowing
from those actions. For this reason, the claim that accepting responsibility for criminal
conduct should be considered a mitigating factor is overwhelmingly associated with a guilty
plea, i.e., an admission of guilt and a willingness to be punished for that conduct. See, e.g.,
id. In the present case, Healey did not plead guilty to violating SORA, but merely admitted
that he committed acts that would be in violation of SORA if he were subject to its
registration requirement. In fact, he argued – and argues still – that he should not be subject
to its provisions and thus should suffer no consequences. We do not mean to criticize his
legal strategy in defending against these charges when we observe that his response to the
charges against him falls short of the sort of personal accountability that would compel a
finding that his admission of the underlying facts alone should be a mitigating consideration
14
at sentencing. The trial court did not abuse its discretion in this regard.
Healey next contends that the trial court abused its discretion in failing to find as a
mitigator that he would benefit from a short period of incarceration or a term of probation. It
is undoubtedly true that Healey himself would benefit from a short period of incarceration in
the sense that it is his desire that his freedom be curtailed for as short a time as possible. It
seems to us, however, that this mitigator is not a function of the individual defendant’s
wishes on this subject. Were it so, this would certainly be universally found as a mitigating
circumstance. Rather, this mitigator is a reflection of the court’s assessment of an individual
defendant’s prospects for living a productive life upon release from incarceration, including
most notably an assessment of the risk for re-offending. In the present case, Healey has a
long history of criminal and delinquent behavior and continues to pose a risk of re-offending,
as evidenced by the facts in the present case, i.e., that under false pretenses, he solicited a
minor on an internet site to pose for him. The trial court did not abuse its discretion in failing
to find this as a mitigating factor.
Finally, Healey contends the trial court abused its discretion in refusing to find as a
mitigator his history of substance abuse and efforts at rehabilitation. The record reveals that
Healey began using alcohol when he was fifteen years old, and he continued to drink until
the time of his incarceration for the present offense. He has smoked marijuana since he was
nineteen, and has experimented with other illegal substances in his recent past. Much of this
activity was illegal when he engaged in it. Indeed, this rationale may underpin the
conclusion of some courts that substance abuse is actually an aggravating circumstance. See
Iddings v. State, 772 N.E.2d 1006 (Ind. Ct. App. 2002), trans. denied. Be that as it may, we
15
can find no indication that his offenses were committed because he was then under the
influence of alcohol or drugs. Also, we note Healey’s claim that his history of substance
abuse is mitigating because he has sought substance-abuse treatment in the past. This
argument loses its force in light of the fact that the only mention of treatment programs at
sentencing was his counsel’s allusion to “a substance abuse class that Mr. Healey’s been in
while incarcerated at the Allen County Jail.” Transcript of Sentencing Hearing at 5. Viewed
as a whole, the trial court did not abuse its discretion in declining to find Healey’s history of
substance abuse as a significant mitigating circumstance.
Finally, Healey contends his sentence was inappropriate in light of his character and
the nature of his offenses. Article 7, section 4 of the Indiana Constitution grants our Supreme
Court the power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7,
the Supreme Court authorized this court to perform the same task. Cardwell v. State, 895
N.E.2d 1219 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “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.” Wilkes v. State, 917
N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). “[S]entencing is principally
a discretionary function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d at 1223. Healey bears the burden on appeal of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind.
2006).
We begin by considering the nature of the offenses. The State concedes that Healey’s
offenses, i.e., his failure to register as a sex offender and to report his computer social
16
website username, his email address, and the fact that he used a website program that could
be accessed by persons less than eighteen “fall within the strictures provided by the
registration law and therefore fall within the ambit of the advisory sentence.” Appellee’s
Brief at 16.
We turn now to the character of the offender. As alluded to above, Healey has an
extensive juvenile and criminal history. Beginning in 1987 and continuing almost unabated
since then, he has accumulated seven prior misdemeanor convictions and seven prior felony
convictions. Two true findings were entered against him in 1987 for committing acts that
would constitute the crimes of criminal mischief and burglary if committed by an adult. He
has been convicted of a total of seven misdemeanor offenses, including criminal conversion,
two counts of resisting law enforcement, two counts of check deception, and two counts of
criminal trespass. His felony offenses include a 1990 conviction for receiving stolen
property, as well as another conviction for receiving stolen property incurred almost
immediately after Healey was discharged from probation. He received yet another receiving-
stolen-property conviction, this one in 1995 and occurring within five months of his being
discharged from probation for the previous offense. He received the aforementioned child-
molesting conviction in 1995, followed by a forgery conviction in 1997. Within eight
months of being discharged from the Department of Correction, Healey was convicted of
auto theft. Two months after being discharged from parole with respect to that offense, he
pleaded guilty to a charge of failure to register as sex offender. The present offenses were
committed within a month of Healey’s release to parole. Healey has spent most of his adult
life in prison or jail because he continues to reoffend when released from incarceration.
17
Probation and short terms of imprisonment have not altered his propensity to commit crimes.
Moreover, given the nature of the most recent offenses and Healey’s posing as a
photographer and soliciting the participation of a minor via the Internet, he poses a
substantial threat to the community. In summary, we conclude that his extensive criminal
history, by itself, justified the sentence imposed by the trial court. Healey has failed to
persuade us that his sentence is inappropriate.
Judgment affirmed and remanded with instructions.
MAY, J., and BARNES, J., concur.
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