Randall Edward Echard 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 Oct 30 2020, 9:28 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randall Edward Echard, October 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-924
v. Appeal from the
Tippecanoe Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Steven P. Meyer, Judge
Trial Court Cause No.
79D02-1910-F1-11
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-924 | October 30, 2020 Page 1 of 16
[1] Following a plea of guilty to child molesting 1 as a Level 1 felony and to being
an habitual offender,2 the trial court sentenced Randall Edward Echard
(“Echard”) to an aggregate sentence of forty-eight years with forty-three years
executed and five years suspended to supervised probation. He raises the
following restated issues for our review:
I. Whether the trial court erred by imposing a probation
condition that restricts Echard’s use of the internet and
technology; and
II. Whether Echard’s sentence is inappropriate in light of the
nature of the offense and his character.
[2] We affirm and remand with instructions.
Facts and Procedural History
[3] In October of 2019, Echard, who was thirty-one years old at the time and on
probation in another case, was living with his then-wife, Brandi Echard
(“Brandi”), and his eight-year-old daughter from another relationship. Tr. Vol.
2 at 14, 18, 33-35; Appellant’s Conf. App. Vol. 2 at 110. Brandi’s thirteen-year-old
cousin, A.B., was staying in Echard’s house as an overnight guest. Tr. Vol. 2 at
18. In the early morning hours of October 27, 2019, Echard left the bedroom
where Brandi was sleeping and walked to the living room were A.B. was
1
See Ind. Code § 35-42-4-3(a)(1).
2
See Ind. Code § 35-50-2-8.
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sleeping on an air mattress. State’s Ex. 1 at 6. Echard’s daughter was sleeping
in another bedroom that was about ten feet away from the living room where
A.B. slept. Tr. Vol. 2 at 35; State’s Ex. 1 at 6, 9. Echard sat in a chair near the
air mattress and woke A.B., telling her how he had “crack[ed]” the skulls of
other prisoners while he was incarcerated and that he could crack additional
skulls without being punished, which A.B. understood as an attempt by Echard
to scare her. State’s Ex. 1 at 6, 7, 9. Echard then began to massage A.B.’s back
and shoulders and continued to touch her despite A.B.’s statements to Echard
that she wanted him to stop. Id. at 9. Echard removed A.B.’s pants and
underwear, placed his hand over her mouth, used his mouth to lick her vagina,
and at one point inserted his tongue inside of her vagina. Id. A.B. attempted to
get up, but Echard pulled her down. Id. Brandi walked in on Echard as he was
performing oral sex on A.B., and when he stopped, he told Brandi he was “so
sorry that you caught me.” Tr. Vol. 2 at 34; State’s Ex. 1 at 6-7. Brandi and
Echard argued about the incident, and, at one point, Echard prevented Brandi
from calling 911 to report what had happened. Tr. Vol. 2 at 34. After the
argument, Echard left the house, and Brandi called the police. Id. at 34-35.
Echard fled to Tennessee and was not taken into custody until October 30,
2019. State’s Ex. 2 at 12.
[4] On October 29, 2019, the State charged Echard as follows: (1) Count I, child
molesting as a Level 1 felony; (2) Count II, criminal confinement as a Level 5
felony; (3) Count III, interference with the reporting of a crime as a Class A
misdemeanor; and (4) Count IV, child molesting as a Level 4 felony. Appellant’s
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App. Vol. 2 at 9-12. That same day, the State also filed an information alleging
that Echard was an habitual offender because of his convictions in 2015 for
intimidation as a Level 5 felony and carrying a handgun without a license as a
Level 5 felony and his 2012 conviction for strangulation as a Class D felony.
Id. at 13-14. On March 20, 2020, Echard pleaded guilty to Count I, child
molesting as a Level 1 felony and admitted that he was an habitual offender.
Id. at 51-53; Tr. Vol. 2 at 4-24. In exchange, the State agreed to dismiss the
remaining charges along with a petition to revoke probation that had been filed
in another case. Appellant’s App. Vol. 2 at 52. The plea agreement also specified
sentencing parameters, which provided that “the initial executed Department of
Correction portion of the sentence shall be no less than thirty-five (35) years and
no more than fifty (50) years.” Id. at 51. It also provided that “any sentence
above thirty-five (35) years may be served in the Indiana Department of
Corrections, and/or on Probation[,]” that “any sentence above fifty (50) years
may be served on Probation[,]” and that Echard may be placed on Tippecanoe
County Community Corrections. Id.
[5] On April 15, 2020, the trial court held a sentencing hearing at which it had
Echard’s presentence investigation report (“PSI”), his psychosexual risk
evaluation, a victim impact statement from A.B.’s mother, and a letter from
Echard’s grandparents. Id. at 6-7; Tr. Vol. 2 at 28. The State also moved to
admit three police reports, dated October 27, 2019, October 30, 2019, and
February 26, 2020, which the trial court admitted. Tr. Vol. 2 at 31. In his
psychosexual risk evaluation, Echard reported that A.B. twice requested that he
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give her a back massage before she told him that he “owe[d]” her a massage.
Def. Ex. 1 at 27. He claimed that while he was giving A.B. a back massage A.B.
was “moaning, sticking her ass up in the air” and that he believed she was
interested in sexual behavior. Id. Echard reported that he asked her, “Are you
ok with this? Are you sure?” on “several occasions[,]” and she responded
affirmatively each time. Id. Echard also told the psychologist that he “was
seduced,” that A.B., “look[ed] like she was 18,” and that he “knew it was
wrong” but was “talked into it.” Id.
[6] Echard also prepared a narrative of the events that were included in the PSI in
which he wrote that A.B. requested that he give her a back massage, that he
was “intrigued[,]” that the situation became “heated[,]” and that A.B. told him
“not to leave” before she “flipped on to her back.” Id. at 125. He wrote that he
was “turned on” even though he “knew it was wrong[,]” that “she then
removed her shorts and underwear[,]” and that he “used [his] hands on her”
while performing oral sex for approximately a “half a minute” on A.B. until
Brandi arrived and “shoved” his shoulder, ending the incident. Id.
[7] A.B.’s mother submitted a letter stating that before the offense occurred, A.B.
was “a very outgoing, fun, and interactive person” but now has “nightmares
almost nightly” and has been in counseling and on medication for post-
traumatic stress disorder, severe depression, and anxiety. Appellant’s Conf. App.
Vol. 2 at 131. She also wrote that A.B. gets severe anxiety if she “hears anyone
raise their voice or start to argue or if she hears a sudden loud noise.” Id.
Echard’s grandparents submitted a letter on his behalf stating that Echard was
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“very remorseful and would do anything to change his wrong acts” and
requesting that Echard not be placed “in a maximum security facility.” Def. Ex.
2 at 38.
[8] Brandi stated at Echard’s sentencing hearing that “[t]he image of finding
[Echard] and the I’m so sorry you caught me. I don’t believe that he’s sorry. I
believe he’s sorry that he got caught.” Tr. Vol. 2 at 34. Echard made a
statement in which he apologized and expressed regret, stating “I am one
hundred percent truly sorry. I mean it was just a horrible, despicable thing.
And it was really, I don’t expect your forgiveness. I am sorry. Truly, I am.”
Id. at 36-37. At the conclusion of the hearing, the trial court stated:
And throughout this whole record, I keep seeing you’re blaming
[A.B.] You keep saying well she wanted a back rub. She wanted
this. She wanted that. She’s thirteen, you’re the adult! You
can’t blame it on a little girl. And I don’t think you get that. . . .
You may be sorry for all that. But that’s diminished in the
Court’s view by the constant reference to blaming this little child
for what you did to her. And I don’t think you get that.
Id. at 47-48.
[9] The trial court then sentenced Echard to an aggregate sentence of forty-eight
years with forty-three years executed and five years suspended to supervised
probation. Id. at 52; Appellant’s App. Vol. 2 at 91-92. Echard’s aggregate
sentence was composed of a thirty-eight-year executed sentence for his
conviction of Level 1 felony child molesting and an additional ten years for
being an habitual offender with five years suspended. Id. It also imposed the
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following special probation condition: “31. You shall abide by all the terms of
the electronic device user agreement for sex offenders (see attached)”
(“Condition 31”). Appellant’s App. Vol. 2 at 103; Tr. Vol. 2 at 59. The electronic
device user agreement incorporated by Condition 31 was not attached to the
special probation conditions that the trial court ordered and that Echard
initialed, but a copy of the document was submitted before sentencing.
Appellant’s App. Vol. 2 at 62-67, 100-03. The trial court stated that Echard could
“go over [the electronic device user agreement’s] terms with the probation
officer at the appropriate time.” Tr. Vol. 2 at 59. The second paragraph of the
electronic device user agreement incorporated by Condition 31 provides as
follows:
Appellant’s App. Vol. 2 at 66. Echard now appeals.
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Discussion and Decision
I. Probation Condition
[10] Echard first contends that Condition 31’s restriction on his use of internet
technology pursuant to the second paragraph of the electronic device user
agreement is overly broad and in violation of Weida v. State, 94 N.E.3d 682
(Ind. 2018), which held that a substantially similar special sex offender
probation condition was unreasonable as applied. Appellant’s Br. at 11-13. The
State agrees that, pursuant to Weida, remand is appropriate to strike the second
paragraph of the electronic device user agreement incorporated by Condition
31. Appellee’s Br. at 12-13. We agree that remand is appropriate.
[11] In Weida, the Indiana Supreme Court held the following condition of Weida’s
probation unreasonable:
You shall not access the Internet or any other on-line service
through use of a computer, cell phone, iPod, Xbox, Blackberry,
personal digital assistant (PDA), pagers, Palm Pilots, televisions,
or any other electronic device at any location (including your
place of employment) without prior approval of your probation
officer. This includes any Internet service provider, bulletin
board system, e-mail system or any other public or private
computer network. You shall not possess or use any data
encryption technique or program.
94 N.E.3d at 686. The Court noted that the condition was unreasonable
because it “did not reasonably relate to rehabilitating Weida and protecting the
public.” Id. at 693. The second paragraph of the electronic device user
agreement applicable to Echard’s probation through Condition 31 is
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substantially similar to the probation condition held unreasonable in Weida.
Therefore, in accordance with Weida, we affirm and remand with instructions
for the trial court to strike the second paragraph of the electronic device user
agreement.3
II. Inappropriateness of Sentence
[12] Echard next argues that his sentence is inappropriate in light of the nature of the
offense and his character and requests that we reduce his aggregate sentence
from forty-eight years to thirty-eight years. Pursuant to Indiana Appellate Rule
7(B), this court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the [c]ourt finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Whether a sentence is inappropriate turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and other factors that come to light in a given case. Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). We defer to the trial court’s decision, and our
goal is to determine whether the appellant’s sentence is inappropriate, not
whether some other sentence would be more appropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless overcome
3
Because we remand for the trial court to strike the second paragraph of the electronic device user agreement
as violative of Weida, we need not address Echard’s alternative arguments concerning overbreadth and undue
restriction of his constitutional rights. See Appellant’s Br. at 13 (“Even assuming arguendo that Weida were not
controlling, Condition 31 would nevertheless be unenforceable as an undue intrusion upon constitutional
rights.”) (emphasis in original).
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by compelling evidence portraying in a positive light the nature of the offense
(such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). When
we review a sentence, we seek to leaven the outliers, not to achieve a perceived
correct result. Cardwell, 895 N.E.2d at 1225. On appeal, it is the defendant’s
burden to persuade us that the sentence imposed by the trial court is
inappropriate. Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010).
[13] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). Echard pleaded guilty to one count of Level 1 felony child
molesting and an habitual offender enhancement. Echard’s Level 1 felony child
molesting offense carries an advisory sentence of thirty years with a sentencing
range of twenty to forty years. Ind. Code § 35-50-2-4(b).4 The habitual offender
enhancement provides for a sentencing range of six to twenty years, which is
not suspendible. Ind. Code § 35-50-2-8(i). By statute, the maximum sentence
Echard could have received was sixty years. However, the plea agreement
specified that “the initial executed Department of Correction portion of the
4
Echard’s commission of Level 1 felony child molesting was not subject to the fifty-year maximum sentence
established under Indiana Code section 35-50-2-4(c) because Echard did not commit “a Level 1 felony child
molesting offense described in: (1) IC 35-31.5-2-72(1); or (2) IC 35-31.5-2-72(2).” Those two subdivisions
address circumstances in the commission of a Level 1 felony child molesting offense that result in a person’s
designation as a credit restricted felon. See Tr. Vol. 2 at 11 (noting that although Echard committed a Level 1
felony child molesting offense his offense was not credit restricted.) Credit restriction aside, the minimum
and advisory sentences under Indiana Code section 35-50-2-4(c) are the same as those in subsection (b).
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sentence shall be no less than thirty-five (35) years and no more than fifty (50)
years.” Appellant’s App. Vol. 2 at 51. It also provided that “any sentence above
thirty-five (35) years may be served in the Indiana Department of Corrections,
and/or on Probation[,]” that “any sentence above fifty (50) years may be served
on Probation[,]” and that Echard may be placed on Tippecanoe County
Community Corrections. Id. Here, the trial court sentenced Echard to an
aggregate sentence of forty-eight years with forty-three years executed and five
years suspended to supervised probation. Id. at 91-92. Echard’s aggregate
sentence was composed of a thirty-eight-year executed sentence for his
conviction of Level 1 felony child molesting, which is eight years above the
advisory sentence but within the parameters established by the plea agreement,
and an additional ten years for being an habitual offender with five years
suspended. Id. Thus, Echard received an enhanced, aggravated sentence that
was less than the maximum established in the plea agreement and by statute.
[14] As to the nature of the offense, Echard contends that his offense consisted of
performing oral sex on A.B. for approximately thirty seconds which was the
“only instance of inappropriate sexual contact.” Appellant’s Br. at 17. He argues
that the offense did not involve penetration, that A.B. was not of tender age,
that he did not commit the offense by force, that the offense did not result in
physical injury to the victim, and that the nature of his offense does not
“warrant an aggravated and enhanced sentence eighteen (18) years greater than
the advisory.” Id. at 18. We disagree. The nature of the offense compares the
defendant's actions with the required showing to sustain a conviction under the
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charged offense. Cardwell, 895 N.E.2d at 1224. “One factor we consider when
determining the appropriateness of a deviation from the advisory sentence is
whether there is anything more or less egregious about the offense 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)
[15] The evidence in the record pertaining to Echard’s guilty plea is contrary to his
claim that his offense was less egregious than the typical offense of Level 1
felony child molesting enhanced by his accompanying admission to being a
habitual offender. In perpetrating the offense, Echard, who was thirty-one at
the time, approached then thirteen-year-old A.B.’s bed and told her how he had
“crack[ed] skulls” while incarcerated and that he was never caught, which A.B.
understood as an attempt to scare her. Tr. Vol. 2 at 14, 18; State’s Ex. 1 at 7, 9.
Echard proceeded to massage A.B.’s back and shoulders and continued to
touch her despite A.B.’s statements to Echard that she wanted him to stop.
State’s Ex. 1 at 9. Echard persisted and removed A.B.’s pants and underwear,
placed his hand over her mouth, used his mouth to lick her vagina, and, at one
point, inserted his tongue inside of her vagina. Id. A.B. attempted to get up,
but Echard pulled her down. Id. Despite Echard’s contention that his
performance of oral sex on A.B. lasted only thirty seconds, which appears in
Echard’s account of the offense that he provided as part of his PSI, the record
does not reveal the act’s precise duration. Appellant’s Conf. App Vol. 2 at 125.
Regardless of the duration, the act did not end until Brandi entered the room
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and witnessed Echard performing oral sex on A.B. Tr. Vol. 2 at 34; State’s Ex. 1
at 6. Brandi described A.B. as appearing lifeless and in shock, and when Brandi
confronted Echard about what she had just witnessed, Echard blamed A.B.,
stole Brandi’s phone so that she could not immediately call the police, and fled
the State for three days. Id. at 5-7; State’s Ex. 2 at 12. As a result of the offense,
A.B. now has frequent nightmares and suffers from post-traumatic stress
disorder, severe depression, and anxiety. Appellant’s Conf. App. Vol. 2 at 131. In
light of Echard’s conduct in intimidating and using fear to dominate A.B.
before and during the offense and the resulting damage done to A.B. and her
family, the nature of Echard’s offense is sufficiently egregious to justify his
enhanced, aggravated sentence. See Holloway, 950 N.E.2d at 806-07.
[16] As to the character of the offender, Echard argues that his sentence is
inappropriate and merits revision because of his prompt guilty plea, expression
of remorse, and status as a seven and one-half year veteran of the Army
Reserve. Appellant’s Br. at 18-19. He also contends that his criminal history
should not have been used to support “further aggravation and execution of the
sentence.” Id. at 19. We disagree. The analysis of the character of the offender
involves a broader consideration of a defendant’s qualities. Anderson v. State,
989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “The character of the
offender is shown by the offender’s life and conduct.” Croy v. State, 953 N.E.2d
660, 664 (Ind. Ct. App. 2011). When considering the character of the offender,
one relevant fact is the defendant’s criminal history. Johnson v. State, 986
N.E.2d 852, 857 (Ind. Ct. App. 2013).
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[17] Here, as to the impact of Echard’s criminal history on his sentence, the trial
court’s sentencing order expressly stated that “most of [Echard’s] criminal
history is encompassed in the Habitual Offender enhancement.” Appellant’s
App. Vol. 2 at 91. Nevertheless, Echard’s remaining criminal history that is not
encompassed by the habitual offender enhancement reflects poorly on his
character. Echard has been previously convicted of operating a vehicle with a
schedule I or II controlled substance or its metabolite as a Class C misdemeanor
in 2007 and domestic battery as a Class A misdemeanor in 2016. Appellant’s
Conf. App. Vol. 2 at 109-10. Echard violated his probation for his 2016
conviction for domestic battery at the time he committed the present offense,
and the State agreed to dismiss the probation violation in that case in exchange
for Echard’s guilty plea. Appellant’s App. Vol. 2 at 52. Other aspects of Echard’s
life and conduct also reflect poorly on his character. Echard’s eight-year-old
daughter, who was in the home at the time Echard committed the offense
against A.B., was found to be a child in need of services (“CHINS”) on October
17, 2012 due to four incidents of domestic violence occurring between Echard
and the child’s mother; however, the child was never removed from the home
and the CHINS case was dismissed on April 19, 2013. Tr. Vol. 2 at 34-35
Appellant’s Conf. App. Vol. 2. at 112. Although the use of illegal drugs or alcohol
did not play a role in the offense, Echard’s PSI shows that he used marijuana
three times per day between the ages of sixteen and twenty-eight and used
mushrooms and LSD in his early twenties, which reflects a disregard for the
law. Appellant’s Conf. App. Vol. 2 at 113.
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[18] We acknowledge, as Echard urges, that pleading guilty and expressing remorse
can be relevant factors in mitigation or revision of a sentence. However, we
agree with the State that Echard’s decision to plead guilty to the offense does
not render his sentence inappropriate as it was likely a pragmatic plea, given the
weight of the evidence against him including his wife witnessing the crime as it
happened and that A.B. had no doubt that Echard was the perpetrator. See
Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011) (observing that a
guilty plea based on pragmatic considerations is entitled to less mitigating
weight), trans. denied. As to his expression of remorse, we note that while
Echard apologized, stating he was “one hundred percent truly sorry. . . . it was
just a horrible despicable thing” and acknowledged the impact his actions had
on A.B. and his own family, the trial court also noted that Echard’s “constant
reference to blaming” of A.B. for his conduct “diminished” his apology. Tr.
Vol. 2 at 48. In fact, immediately after Brandi found Echard with A.B., Echard
blamed A.B. telling Brandi that he was sorry she caught him, which was also
consistent with Echard’s statement to his psychologist during his psychosexual
evaluation that A.B.’s “moaning [and] sticking her ass up in the air” had
“seduced” him. Id. at 34; Def. Ex. 1 at 27. Finally, while Echard served in the
Army Reserves, he received an “other than honorable discharge,” which was a
result of a 2015 conviction, and reflects poorly on him. Appellant’s Conf. App.
Vol. 2 at 114; Tr. Vol. 2 at 39. Thus, in broadly considering Echard’s life and
conduct, we cannot say that his sentence is inappropriate in light of his
character.
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[19] Echard has not shown that his sentence is inappropriate in light of the nature of
the offense and the character of the offender. We, therefore, affirm the sentence
imposed by the trial court.
[20] Affirmed and remanded with instructions.
Pyle, J., and Tavitas, J., concur.
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