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

• Court: Indiana Court of Appeals
• Decided: April 17, 2019
• Docket: 18A-CR-2141
• Status: Published

Opinion

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