FOR PUBLICATION
ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
J. MICHAEL SAUER NICOLE M. SCHUSTER
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
PATRICK L. FITZGERALD, )
)
Appellant-Defendant, )
)
vs. ) No. 28A01-0306-CR-199
)
STATE OF INDIANA, )
)
Appellee. )
OPINION - FOR PUBLICATION
II. Whether the sentence is inappropriate; and
III. Whether some imposed conditions of probation are unconstitutional.
We affirm in part, reverse in part, and remand.
Fitzgerald had known A.V. for her entire life. He was a friend
of her father. Over the years, A.V. would accompany her father when
he would visit Fitzgerald and other friends at Fitzgerald’s place of employment and
at the volunteer fire department where Fitzgerald was the Assistant Chief. During
the summer of 2000, A.V., who was fourteen years old and a freshman
in high school, moved into her father’s home on a full-time basis.See footnote
Over time, Fitzgerald and A.V. began to talk frequently and a “romantic relationship”
started in September of 2000. Over the next year, the relationship became
sexual and A.V. and Fitzgerald would have sex on a weekly basis.
Because A.V.’s father was a truck driver who left for work between 3
and 5 a.m., A.V. and Fitzgerald were able to hide their relationship.See footnote
Nonetheless, A.V.’s father became suspicious of A.V. and Fitzgerald and confronted them.
They both denied that there was any sort of relationship between them.
In September or October of 2001, A.V. became pregnant. She told only
Fitzgerald, and she did not seek medical care. It was not until
April 2002, when a school guidance counselor asked A.V. if she was pregnant,
that she informed anyone other than Fitzgerald of her pregnancy. At that
time, she sought medical care and delivered a baby girl on June 12,
2002. As a consequence, Fitzgerald was charged with the present offense and
was convicted.
The trial court sentenced Fitzgerald to ten years in the Department of Correction,
and suspended three years of the sentence on the grounds that Fitzgerald commit
no violation of law and that he be placed on supervised probation until
April 3, 2013. In entering its sentencing order, the trial court identified
several aggravating and mitigating circumstances and determined that they balanced, making the presumptive
sentence appropriate. The trial court also stated that any sentence less than
ten years would depreciate the serious of the crime.
Fitzgerald further contends that the trial court abused its discretion by failing to
find the statutory mitigating circumstance that this offense was the result of circumstances
unlikely to recur. See Ind. Code § 35-38-1-7.1(c)(2) (Burns Code Ed. Supp.
2003).
Sentencing decisions lie within the discretion of the trial court. Jackson v.
State, 728 N.E.2d 147, 154 (Ind. 2000). When a trial court imposes
a presumptive sentence, we presume that the trial court considered the proper factors
in making the sentencing determination. Id. However, when a court identifies aggravating
or mitigating circumstances, it is obligated to include a statement of its reasons
for selecting the sentence imposed. Id. The statement of reasons must
contain three elements: (1) identification of all significant aggravating and mitigating circumstances; (2)
the specific facts and reasons that lead the court to find the existence
of each such circumstance; and (3) reflection of an evaluation and balancing of
the mitigating and aggravating circumstances in fixing the sentence. Id. The
trial court is responsible for determining the appropriate weight to give aggravating and
mitigating circumstances. Powell v. State, 751 N.E.2d 311, 315 (Ind. Ct. App.
2001).
A trial court is not obligated to find a circumstance to be mitigating
simply because it is offered by a defendant as a mitigating circumstance.
Highbaugh v. State, 773 N.E.2d 247, 252 (Ind. 2002). Additionally, a trial
court is not obligated to weigh or credit the mitigating factor the same
as the defendant requests. Id. Upon appeal, a defendant must show
that the proffered mitigating circumstance is both significant and clearly supported by the
record. Id.
Fitzgerald’s claim regarding the aggravator that Fitzgerald’s actions caused A.V. to incur child
care obligations that may have impeded opportunities or goals that young women may
pursue is persuasive. In its oral sentencing statement, the trial court stated,
“I don’t know what goals she may have set for herself, but for
what occurred here I don’t know what her plans might have been.
I don’t know how much easier if at all it might have been,
but now she has to think not only of herself but a very
small child. For someone of such tender age the Court can only
conclude that that is a factor that I have to consider an aggravation.”
Tr. at 325-26. A.V. testified that her goal was to
become a firefighter and that she planned to accomplish that goal by attending
school at V.U.
See footnote In her victim impact statement included in the pre-sentence
investigation report, she denied having any adverse effects due to the offense committed
by Fitzgerald.
The State argues that the trial court was entitled to not give much
credit to A.V.’s statement because of her age and the belief that she
may not understand the true costs and rewards of having a child.
While it may be true that A.V. has not fully experienced the difficulties
that are inherent with raising a child, there is no indication from the
evidence that having a child has negatively impacted A.V.’s ability to pursue her
goals. Further, A.V.’s testimony indicates that she will be able to accomplish
her goals. Consequently, the aggravating circumstance that the offense may have impeded
A.V.’s ability to pursue her goals is not supported by the evidence.
Turning to the other aggravating circumstance challenged, that there is a risk that
Fitzgerald would repeat the offense, we begin by noting the trial court’s reasoning
for why it believed that the offense could recur. That is that
Fitzgerald repeatedly made clear that he disagreed with the law, that he had
no regret for his actions, and that he knew the crime was wrong
but continued to repeat it. In our review of the record, we
have not located any statements in which Fitzgerald “made clear . . .
that he disagreed with the law.” Rather, Fitzgerald’s statements indicate at best
that he had a complete disregard for the law which he violated, given
that he knew his actions were wrong but continued to engage in sexual
intercourse with a minor.See footnote
To the extent, however, that the trial court was fearful that the instant
offense would likely recur with A.V. it was erroneous because as noted by
Fitzgerald, at the time of sentencing, she was over the age of 16
and no longer the subject of the provisions of the sexual misconduct statute.See footnote
Be that as it may, the trial court found three additional aggravating circumstances.
The court noted that the offense was not an isolated incident but
was continual over the course of a year. In addition the court
noted that Firzgerald did not provide or facilitate any pre-natal care for A.V.
until seven months into the pregnancy and that while on bond, Fitzgerald had
violated a no contact order.
As a mitigating circumstance, Fitzgerald has offered his view that the crime was
the result of unusual circumstances and was, therefore, unlikely to recur. This is
but a refinement of the argument that the court erred in concluding that
the events were likely to recur. The court was not required to
find that circumstance as a mitigating factor.
Even were we to agree that two of the five stated aggravators were
inappropriate for consideration, the court was entitled to balance the remaining three aggravating
circumstances against the two conceded mitigators, i.e. the lack of a criminal record
and Fitzgerald’s service as a volunteer firefighter. In this light, reversal of
the presumptive sentence is not required.
The posture of the case does not suggest that the trial court, if
disregarding the two questionable aggravators, would have imposed less than the presumptive sentence.
To the contrary, the court specifically stated that to impose less
than the presumptive sentence would depreciate the seriousness of the offense committed.
We therefore conclude that the court’s consideration and balancing of aggravating and mitigating
circumstances does not dictate reversal of the presumptive sentence.
II
Inappropriate Sentence
In challenging condition 5, Fitzgerald argues that the terms “pornographic or sexually explicit
materials” and “deviant interests or behaviors” are unconstitutionally vague. In doing so
he presupposes that a violation of the condition does not occur unless the
possession or viewing of pornographic or sexually explicit materials or any material depicting
partial or complete nudity or sexually explicit language is related to illegal or
deviant interests or behaviors. We will consider Fitzgerald’s contention in this context.
See footnote
To support his claim, he relies upon this court’s decision in
Smith v.
State, 779 N.E.2d 111 (Ind. Ct. App. 2002), trans. denied. In Smith,
this court determined that the probation condition restricting possession of pornographic or sexually
explicit materials was unreasonably vague. Id. at 118. In reaching that
conclusion, this court noted that a probationer has a due process right to
conditions of supervised release that are sufficiently clear to inform him of what
conduct will result in his being returned to prison. To resolve the
vagueness problem with the condition, this court remanded with instructions that the trial
court set out the prohibitions against “pornographic or sexually explicit materials” more specifically.
Id.
In this case, the conditions of probation were not as patently overbroad as
in Smith. The prohibition in Smith was against possession or viewing of any
pornographic or sexually explicit material. Here, the prohibition was noted to include
such things as videos, magazines, or any material which depicts partial or complete
nudity or sexually explicit language. By including the restriction prohibiting the possession
or viewing of any material which depicts partial or complete nudity, or
sexually explicit language, the State argues that it is clear what types of
materials are restricted.
See footnote We disagree.
The purported specificity in this case, if less inclusive at all than the
blanket prohibition against “pornographic or sexually explicit materials,” is only slightly so. See footnote
We hold that the attempt at specificity does not save the probation
condition from the attack as overbroad. In this regard we allude to
the remand observations made by the court in
Smith. For example, the
prohibition may validly forbid possession of child pornography and obscene matter. 779
N.E.2d at 118.
With reference to the phrase “deviant interests or behaviors,” we have not held
that it is a safe harbour from being successfully attacked as unconstitutionally vague.
There is nothing included in the condition which indicates what is meant
by the phrase “deviant interests or behaviors.” Furthermore, the noun “deviance” is
defined as “the quality or state of departing from established norms, esp. in
social customs.” Black’s Law Dictionary 462 (7th ed. 1999). We conclude
that more specificity is required to inform Fitzgerald what is considered appropriate social
norms and what may be considered a deviation from those norms.
See footnote Therefore,
we remand to the trial court with instructions to set out any prohibition
against materials related to deviant interests and behaviors with more specificity.
Finally, Fitzgerald contends that the condition prohibiting him from being present at parks
and schools goes beyond what is reasonably necessary to protect the public or
rehabilitate him. He asserts that there is no evidence which indicates that
he ever went to a park or school to seek a sexual encounter
and further, that it is not clear if the prohibition applies to all
parks and schools, or only those where children are known to congregate.
Sexual predators prey upon those to whom they have access.
See Carswell,
721 N.E.2d at 1259 (noting that child molesters molest children to whom they
have access). Conditions of probation which reduce the potential for access to
potential victims are reasonable. Id. Fitzgerald became sexually involved with a
fourteen-year-old girl to whom he had access. She hung out at both
the fire station and garage where he worked. She accompanied her father
when he would go out to dinner with Fitzgerald. Restricting Fitzgerald’s access
to locations where other potential victims are present will further his rehabilitation and
also protect those whom he may harm.
See footnote
We turn now to Fitzgerald’s question about whether the prohibition on his presence
at parks and schools applies to all locations or just those where children
are known to congregate. This argument is related to his final contention,
that the condition is void for vagueness because it fails to provide any
ascertainable standard for him to know where he may be permitted to go.
As stated above, the condition is that Fitzgerald “shall not be present at
parks, schools, playgrounds, day care centers, or ___________ (other specific locations where
children are known to congregate in your community).” App. at 159.
This condition was part of a generic form in which the trial court
marked the conditions of probation that would apply to Fitzgerald. As noted
by the blank line in the condition, the form had some additional spaces
where the trial court could write in additional conditions or expand certain restrictions.
Here, the trial court made no additional restrictions or notations on the
form. Accordingly, there are no such additional restrictions as conditions.
As argued by Fitzgerald, this court has determined that phrases similar to “other
specific locations where children are known to congregate in your community” have been
found to be unconstitutionally vague. In
Carswell, this court determined that the
use of the phrase “area where children congregate” did not provide the defendant
with a predictable standard for identifying forbidden places. 721 N.E.2d at 1260.
However, in that case there appears to have been no mention of
the specific types of places, such as schoolyards and playgrounds, in the conditions
of probation and this court remanded for the trial court to reconsider the
condition in light of the discussion. Id. That same concern is
not present here as the condition specifically restricts Fitzgerald from certain types of
locations.
Nonetheless, that does not settle the dilemma of whether the phrase limiting access
to specific locations where children are known to congregate applies to the entire
condition. The phrase, as written, is not a separate restriction upon going
to specific places where children are known to congregate. It only guides
the trial court in adding additional specific locations to which Fitzgerald may not
go.
Be that as it may, one may rely upon common sense to conclude
that the phrase implicitly applies to all the conditions because children are known
to congregate at parks, schools, playgrounds, and day care centers. For the
most part this is true. However, it is quite possible and likely
that children and teenagers do not congregate at all parks.
See footnote Given that
the condition does not specifically include a restriction on any location where children
are known to congregate, and that the restriction may be read to prohibit
Fitzgerald from every park, even those where children do not congregate, we remand
to the trial court to reconsider and clarify this condition, especially the use
of the parenthetical notation.
The judgment of the trial court is affirmed in part and reversed in
part and remanded for further proceedings not inconsistent with this decision.
ROBB, J., concurs.
HOFFMAN, Sr.J., concurring in part and dissenting in part with opinion.