MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 07 2017, 5:40 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tracy J. Konsdorf, November 7, 2017 Appellant-Defendant, Court of Appeals Case No. 79A04-1704-CR-881 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff Judge Trial Court Cause No. 79D01-1603-F5-32
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 1 of 29 [1] Tracy Konsdorf pleaded guilty to Level 5 Felony Sexual Misconduct with a
Minor.1 She appeals, arguing that 1) her guilty plea is invalid; 2) her sentence is
erroneous and inappropriate in light of the nature of the offense and her
character; and 3) certain probation conditions are overly broad. Finding no
error with her guilty plea or her sentence, but that two of her probation
conditions are overly broad, we affirm in part, reverse in part, and remand with
instructions.
[2] We find that 1) the trial court did not err by accepting Konsdorf’s guilty plea; 2)
the trial court did not err by denying Konsdorf’s motion to withdraw her guilty
plea; 3) the trial court did not err by not advising Konsdorf about the
requirement to register as a sex offender; 4) Konsdorf’s sentence was not
inappropriate in light of the nature of the offense and her character; and 5) the
trial court did not err by not considering certain factors to be mitigating factors;
but that 6) two of Konsdorf’s probation conditions are overly broad. We affirm
in part, reverse in part, and remand with instructions.
Facts 2
[3] Forty-eight-year-old Konsdorf worked as a school bus driver for the Tippecanoe
County School Corporation. On or around October 16, 2015, Konsdorf created
1 Ind. Code § 35-42-4-9(b)(1). 2 We remind appellant’s counsel that Indiana Appellate Rule 46(A)(6) requires that briefs have a statement of facts section that should contain only relevant facts “stated in accordance with the standard of review appropriate to the judgment or order being appealed.” Here, appellant’s statement of facts section omits all
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 2 of 29 a contact entry in her cell phone for the victim, a fourteen-year-old girl. On or
around December 8, 2015, Konsdorf and the victim began sending text
messages to each other.
[4] On February 11, 2016, Konsdorf engaged in a hug with the victim for
approximately one minute; Konsdorf also sat in the driver’s seat of the bus
while the victim laid on her, and she “smack[ed]” the victim’s rear end with her
hand. Appellant’s App. Vol. IV p. 8. The next day, February 12, 2016,
Konsdorf again sat in the driver’s seat of the bus while the victim sat in her lap
for approximately twelve minutes. In the afternoon of that same day, the
victim kissed Konsdorf on the top of her head before the victim exited the bus.
On February 16, 2016, Konsdorf and the victim “lean[ed]” on each other and
hugged before the victim exited the bus. Id. On February 22, 2016, Konsdorf
and the victim hugged near the driver’s seat for approximately one minute as
students walked past them to exit the bus, and they hugged a second time after
most of the students had exited the bus.
[5] On February 23, 2016, Konsdorf and the victim entered the bus together before
the start of Konsdorf’s bus route. That evening, Konsdorf sent the victim the
following message through Facebook:
I can’t tell you what to do or feel. But I know you have feelings and emotions and scared. Your scared cause somebody actually
facts related to the crime to which Konsdorf pleaded guilty and is argumentative regarding Konsdorf’s sentence. Despite this failure to follow Rule 46(A)(6), we will still consider Konsdorf’s appeal.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 3 of 29 told you what you never thought you’d hear. Well I said it and meant it. You wanna run go for it but remember you have to face me everyday and you can’t do that without breaking. You were happy when we both got honest I know I was. Today was a great day. Just having you close in the morning is wonderful. Sitting on your lap wasn’t half bad either. Last night with your little snapchats well let’s just say I had wonderful dreams. Sry Just know this is not easy for me either but I’m still here. You
Appellant’s App. Vol. IV p. 7 (spelling and grammar original).
[6] On February 24, 2016, Konsdorf asked the victim to place something over the
cameras at the front and back of the bus. Konsdorf placed her hand on the
victim’s back, near her waistline, and pushed her toward the rear of the bus.
She then asked the victim, “you want me don’t you.” Id. at 9. That evening,
the victim sent Konsdorf a text message stating, “I felt everything. The kiss was
good. I just couldn’t let it happen again. I’m afraid someone will see. That
can’t happen.” Id. at 7.
[7] Between February 24 and 29, 2016, Konsdorf and the victim exchanged 737
text messages with each other. Between February 27 and 29, 2016, Konsdorf
searched the following phrases online:
• “falling in love with someone you ger” • “falling in love with someone you can’t have” • “older wiman younger wiman” • “dating a 14 year old” • “Do you think it’s normal for a 26-year-old guy to date a 14-year-old girl? Why?” • “14 year old dating 28 year old” • “Is it wrong for a 14 year old and a 28 year old to date?” Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 4 of 29 • “women dating younger women” and • “tsc3 investigations.”
Appellant’s App. Vol. IV p. 11 (spelling and grammar original).
[8] On February 26, 2016, Konsdorf asked the victim what she had told people
about them. On February 28, 2016, Konsdorf wrote a note stating
Ok why do u it? Heartbreaker it is. USS [victim] leaves quite a trail. Sometimes your flirting can and does hurt people’s feelings. Kinda sad it got me I guarantee we will have tough times I guarantee that but never even got that chance.
Id. at 10 (spelling and grammar original). On February 29, 2016, Konsdorf sent
the victim the following messages: “Better stay quiet. Please don’t bad mouth
me. Remember I do know people. They keep me informed. That’s all I have
to say[]” and “This is between you and I only.” Id. at 7. That same night,
Konsdorf wrote on Facebook, “I got played by a 14.” Id.
[9] On March 1, 2016, an employee of the Tippecanoe School Corporation met
with the Tippecanoe County Sheriff’s Office. The employee had been looking
into a harassment complaint unrelated to the instant case when the employee
came across the video involving Konsdorf and the victim. On March 4, 2016,
the State charged Konsdorf with Level 5 felony sexual misconduct with a
minor. On August 12, 2016, Konsdorf pleaded guilty to the charge without a
3 “TSC” stands for “Tippecanoe School Corporation.”
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 5 of 29 plea agreement. During the guilty plea hearing, Konsdorf stated that she
understood that by pleading guilty, she was admitting that she committed the
crime with which she was charged and understood that she would be judged
and sentenced without a trial; that she understood the penalty range for the
crime; that she did not receive any promises and was not given anything of
value in order to plead guilty; that she was not forced, threatened, or put in fear
regarding her guilty plea; and that she pleaded guilty as a result of her own free
choice and decision. The following exchange then took place:
The Court: Then as to Count One (1); Information of sexual misconduct with a minor, a Level Five (5) Felony, how do you plead? Guilty? Or Not Guilty?
The Defendant: Guilty.
***
Defense Counsel: Tracy, on February 24, 2016, were you here in Tippecanoe County?
The Defendant: Yes.
Defense Counsel: And were you working that day?
Defense Counsel: And on that day, did you have contact with the Victim in this matter?
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 6 of 29 The Defendant: Yes.
Defense Counsel: And to the best of your knowledge, what is the Victim’s age?
The Defendant: Fourteen (14).
Defense Counsel: Ok. And the contact that you had with her, was there-did it involve kissing?
Defense Counsel: Ok. Was there-would both-was there also perhaps touching?
The Defendant: No.
Defense Counsel: No touching? Just the kissing?
Defense Counsel: Was it-was that kissing of a-with an intention to satisfy your sexual desires?
Defense Counsel: What was the intention of it then?
The Court: Let’s go off the record for a minute and I will let you talk to your client.
Defense Counsel: Thank you Judge. Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 7 of 29 Tr. p. 9-11. When defense counsel resumed questioning Konsdorf, Konsdorf
specifically admitted to all factual allegations of the charge. During the State’s
cross-examination, the following exchange took place:
The State: You agree that all of the material allegations as set forth in Count One (1) are true? Is that correct?
The Defendant: Yes. I am sorry.
The State: Ok.
Id. at 13. The trial court found that a factual basis existed for the guilty plea
and set the matter for a sentencing hearing to take place on September 9, 2016.
[10] On the morning of the scheduled sentencing hearing, Konsdorf received and
was dissatisfied with the pre-sentence investigation report (PSR) because she
believed that “the State was going to make a recommendation that was less
than what their recommendation is going to be today.” Id. at 18. When
Konsdorf pointed this out to the trial court, the trial court stated that there was
no plea agreement in this case. Konsdorf then indicated that she wanted to
withdraw her guilty plea, and the trial court told her that the motion had to be
in writing.
[11] On September 22, 2016, Konsdorf filed a motion to withdraw her guilty plea,
arguing that she had pleaded guilty pursuant to an oral agreement with the
State, that her trial counsel was ineffective, and that a plea to a felony had to be
in writing rather than by oral agreement. On September 27, 2016, the State
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 8 of 29 filed a response to Konsdorf’s motion. A hearing on Konsdorf’s motion took
place on October 14, 2016, during which the trial court informed Konsdorf that
her motion to withdraw the guilty plea was not properly filed because she had
not signed her motion. The trial court nonetheless proceeded with the hearing.
Konsdorf testified, admitting that she had pleaded open without a plea
agreement; that she had been advised of the penalty associated with her offense;
that she had been asked by the trial court whether she was forced, threatened,
or promised anything of value in return for her guilty plea; and that she had
admitted guilt at her guilty plea hearing. At the conclusion of the hearing, the
trial court told Konsdorf that she had seven days in which to file a proper
motion to withdraw her guilty plea and then the trial court would issue an
order.
[12] On November 4, 2016, Konsdorf filed a second motion to withdraw her guilty
plea. In this motion, she alleged that she received the ineffective assistance of
counsel because she was advised that she would not be sentenced to serve
executed time, was not presented with a written plea offer, and was not able to
obtain answers to her questions from her attorney. On November 10, 2016, the
State filed a response to Konsdorf’s motion. A hearing on Konsdorf’s second
motion took place on December 21, 2016, during which Konsdorf admitted that
she had discussed pleading guilty with her attorney, that she had admitted all of
the material allegations of her offense, that she would not be withdrawing her
guilty plea if probation had not recommended jail time in the PSR, and that she
had been informed at her guilty plea hearing of the consequences of pleading
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 9 of 29 guilty. The trial court took the matter under advisement, and on February 1,
2017, issued an order denying Konsdorf’s motion to withdraw her guilty plea,
finding that Konsdorf failed to present specific facts to justify the withdrawal of
her guilty plea.
[13] At Konsdorf’s March 20, 2017, sentencing hearing, the trial court sentenced her
to four years, with one year executed and three years suspended. Of the three
years suspended, the trial court ordered Konsdorf to serve two years of
supervised probation and one year of community corrections. In the trial
court’s written sentencing order, the trial court found the following aggravating
circumstances: 1) Konsdorf’s position of trust, and 2) the fact that Konsdorf
was grooming the victim. The trial court found the following mitigating
circumstances: 1) Konsdorf pleaded guilty; 2) Konsdorf has no criminal
history; 3) Konsdorf has the support of family and friends; and 4) Konsdorf has
a history of employment. Konsdorf now appeals.
Discussion and Decision I. Guilty Plea A. Validity of Plea
1. Maintaining Innocence [14] Konsdorf first challenges the validity of her guilty plea, arguing that the trial
court erred by accepting her guilty plea because she maintained her innocence
and pleaded guilty at the same time.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 10 of 29 [15] Initially, we note that Konsdorf did not raise this issue in either of her motions
to withdraw her guilty plea. As a general rule, a party may not present an
argument or issue to an appellate court unless the party raised that argument or
issue to the trial court. Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App.
1999). Therefore, her argument is waived. Moreover, at her guilty plea
hearing, Konsdorf stated that she understood she was waiving her right to
appeal her conviction. See Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996)
(“One consequence of pleading guilty is restriction of the ability to challenge
the conviction on direct appeal.”). Waiver notwithstanding, we will still discuss
Konsdorf’s argument.
[16] “A valid guilty plea is a confession of guilt made directly to a judicial officer
and necessarily admits the incriminating facts alleged.” Carter v. State, 739
N.E.2d 126, 128 (Ind. 2000). A trial court in Indiana “may not accept a guilty
plea that is accompanied by a denial of guilt.” Id. at 129. This rule is
“explicitly contingent, however, upon the protestation of innocence occurring
at the same time the defendant attempts to enter the plea.” Id. A trial court
may “accept a guilty plea from a defendant who pleads guilty in open court, but
later protests his innocence.” Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000).
“Admissions of guilt and assertions of innocence come in many shades of gray,
and the trial judge is best situated to assess the reliability of each.” Carter, 739
N.E.2d at 130.
[17] At Konsdorf’s guilty plea hearing, during defense counsel’s questioning,
Konsdorf initially admitted that she had contact with the victim, that the victim
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 11 of 29 was fourteen years old, and that the contact involved kissing; she denied that
the contact involved touching or that the kissing was with an intention to satisfy
her sexual desires. The trial court allowed defense counsel to confer with
Konsdorf off the record, after which defense counsel explained that Konsdorf
was “obviously nervous.” Tr. p. 12. Konsdorf then admitted that on February
24, 2016, the victim was fourteen years old, that Konsdorf is forty-eight years
old, that she had contact with the victim, that the contact involved Konsdorf
kissing and touching the victim, and that the contact was with the intention to
either satisfy her desire or that of the victim. When the State asked whether
Konsdorf agreed with all of the material allegations set forth in the charge, she
replied affirmatively.
[18] At no time during the hearing did Konsdorf state that she was innocent of the
crime, let alone maintain a protestation of innocence. Even if she initially
denied that the contact involved touching or that the kissing was with an
intention to satisfy her sexual desires, she nearly immediately thereafter
admitted to all of the elements of the charge against her. We do not find that
her brief denials, followed so quickly by a full admission, constituted a
protestation of innocence.
[19] Moreover, Konsdorf did not assert her innocence at her subsequent hearings on
her motions to withdraw her guilty plea. At the first hearing on Konsdorf’s
motion to withdraw her guilty plea, when the State asked her whether she had
admitted guilt at her guilty plea hearing, she replied affirmatively. Tr. p. 26. At
the second hearing on Konsdorf’s motion to withdraw her guilty plea, she
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 12 of 29 testified that if the probation department had not recommended jail time, she
would not be trying to withdraw her guilty plea. Id. at 45. In addition, before
sentencing, Konsdorf wrote a letter to the trial court in which she stated that:
. . . I gave [the victim] a hug and kissed her, and patted her.
I admit that I did a stupid thing by exchanging text messages with her. I also know that I shouldn’t have hugged her, kissed her or touched her as that wasn’t a smart thing to do.
Appellant’s App. Vol. III p. 14. In other words, Konsdorf acknowledged in her
letter to the trial court that she touched, hugged, and kissed the victim—the
exact opposite of declaring or maintaining innocence.
[20] In sum, defense counsel explained that Konsdorf’s initial answers in the
negative at the guilty plea hearing to counsel’s questions of whether her contact
with the victim involved touching and whether the kissing was with an
intention to satisfy Konsdorf’s sexual desires were the result of her nervousness
at being in court. There is no evidence that Konsdorf made, let alone
maintained, an assertion of innocence. The trial court, which had the
opportunity to interact with and observe Konsdorf, is in the best position to
assess the reliability of Konsdorf’s admission of guilt. Under these
circumstances, we find no error in the trial court’s acceptance of Konsdorf’s
guilty plea.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 13 of 29 2. Registration as a Sex Offender [21] Konsdorf contends that the trial court committed fundamental error by not
advising her during her guilty plea hearing that she would be required to register
as a sex offender. Again we note that Konsdorf did not raise this issue to the
trial court and therefore waived it on appeal. She attempts to circumvent this
waiver by claiming fundamental error. Fundamental error is available only
when the record reveals a clearly blatant violation of basic and elementary
principles, where the harm or potential for harm cannot be denied, and which
violation is so prejudicial to the rights of the defendant as to make a fair trial
impossible. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).
[22] Indiana Code section 35-35-1-2 requires a trial court to ensure that a defendant
pleading guilty understands and is aware of certain matters. The statute
specifies in relevant part that:
(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant:
(1) understands the nature of the charge against the defendant;
(2) has been informed that by the defendant’s plea the defendant waives the defendant's rights to:
(A) a public and speedy trial by jury;
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 14 of 29 (B) confront and cross-examine the witnesses against the defendant;
(C) have compulsory process for obtaining witnesses in the defendant's favor; and
(D) require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself or herself; [and]
(3) has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences[.]
(c) Any variance from the requirements of this section that does not violate a constitutional right of the defendant is not a basis for setting aside a plea of guilty.
[23] A defendant “who pleads guilty need not be advised that the conviction might
have adverse but future collateral consequences.” Gillespie v. State, 736 N.E.2d
770, 775 (Ind. Ct. App. 2000). Advisement on collateral consequences is not
required because “the immediate conviction is the sole concern.” Id.
[24] The statute governing a trial court’s assessment of a defendant’s understanding
of the effects of a guilty plea makes no mention of collateral consequences.
Konsdorf points to no authority that supports her argument that a trial court’s
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 15 of 29 failure to advise her about her future requirement to register as a sex offender is
error, nor do we find any. Further, Konsdorf has not alleged that had she
known of the possibility of registering as a sex offender, she would have
changed her decision to plead guilty. See Stockey v. State, 508 N.E.2d 793, 795
(Ind. 1987) (finding that the defendant did not show that he would have
changed his decision to plead guilty had he known of the possibility of
consecutive sentences). The trial court did not err in this regard.
B. Withdrawal of Guilty Plea [25] Konsdorf next argues that the trial court erred by denying her motion to
withdraw her guilty plea because her plea was not knowingly and voluntarily
made.
[26] After a guilty plea is entered but before sentence is imposed, a defendant may
move to withdraw her guilty plea for any fair and just reason unless the State
has been substantially prejudiced by reliance upon the plea. Ind. Code § 35-35-
1-4(b). The trial court shall grant the motion to withdraw if the defendant
proves, by a preponderance of the evidence, that it is necessary to correct a
manifest injustice. Id. Absent such a showing, the decision to grant or deny the
motion rests soundly in the discretion of the trial court. Id.
[27] As a general matter, we will not second-guess a trial court’s evaluation of the
facts and circumstances because the trial court “is in a better position to weigh
evidence, assess the credibility of witnesses, and draw inferences.” Moshenek v.
State, 868 N.E.2d 419, 424 (Ind. 2007). A trial court’s ruling on a motion to
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 16 of 29 withdraw a guilty plea arrives in this Court with a presumption in favor of the
ruling. Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001).
[28] First, we must examine the record of the guilty plea hearing to determine
whether Konsdorf’s plea was knowing and voluntary. Here, Konsdorf was
clearly advised by the trial court of her rights and the information required by
Indiana Code section 35-35-1-2. The trial court went step by step through the
charge, its penalty range, the rights Konsdorf would give up by pleading guilty,
and the fact that Konsdorf was of sound mind. The trial court also determined
that Konsdorf’s plea was free from threats, coercion, or promises of leniency,
and that her plea was of her own free choice and decision. At each step,
Konsdorf assured the trial court that she understood her rights, the effect of her
plea, and the sentencing range she faced if she pleaded guilty.
[29] Konsdorf attempts to avoid the effect of this lengthy discussion with the trial
court by emphasizing that she was confused during the guilty plea hearing and
that she pleaded guilty because she thought she had an agreement with the State
that did not include an executed sentence. As to Konsdorf’s confusion during
the guilty plea hearing, as discussed above, the trial court asked questions to
establish that Konsdorf understood the consequences of her guilty plea,
including the sentencing range for a Level 5 felony. Konsdorf gave no
indication that she was unclear about the charge, her potential sentence
following her guilty plea, or any other effect of her plea.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 17 of 29 [30] As to whether an agreement existed, the record is devoid of evidence of an
actual agreement or even the promise of one. At the September 9, 2016,
sentencing hearing, the following exchange took place:
Defense Counsel: . . . I went over [the PSR] with my Client this morning and the recommendation by Probation is outside of what the intended meeting of the minds was between my client and what the agreement was.
The Court: There was no agreement. Right?
Defense Counsel: Correct Judge. . . .
Tr. p. 17. Thus, no actual plea agreement existed between Konsdorf and the
State. And although Konsdorf argues on appeal that the trial court should have
questioned the State about defense counsel’s references to the State’s sentencing
recommendations, it is the defendant, not the State, who bears the burden of
showing that a withdrawal of a guilty plea is necessary. I.C. § 35-35-1-4(b). In
short, the record shows that Konsdorf pleaded guilty without an actual
agreement.
[31] Finally, Konsdorf contends that withdrawal of her guilty plea is necessary to
correct a manifest injustice in part because she received ineffective assistance
from her first trial counsel and a plea to a felony must be in writing. Konsdorf
fails to develop any cogent argument regarding her ineffective assistance claim;
moreover, at the December 21, 2016, hearing on her motion to withdraw her
guilty plea, her second trial counsel stated that a poor connection and poor
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 18 of 29 understanding between Konsdorf and her first trial counsel was more likely
than ineffective assistance of counsel. As for any statutory requirement that a
plea agreement to a felony must be in writing, we note again that Konsdorf
pleaded guilty without the benefit of any plea agreement. Therefore, any such
requirement is not relevant to her argument.
[32] Under these circumstances, we find no error in the trial court’s conclusion that
Konsdorf’s guilty plea was knowingly and voluntarily made or that Konsdorf
failed to prove a manifest injustice by a preponderance of the evidence, or in its
denial of her motion to withdraw her guilty plea.
II. Sentence A. Mitigating Factors [33] Konsdorf argues that the trial court overlooked three mitigating factors: 1) she
was unlikely to commit this offense again; 2) her incarceration would result in
undue hardship for her family; and 3) her offense was not the most egregious
case of sexual misconduct.
[34] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g on other
grounds at 875 N.E.2d 218. A trial court may err in its decision if it is clearly
against the logic and effect of the facts and circumstances before the court. Id.
A trial court may err by finding aggravating or mitigating factors that are not
supported by the record, by omitting factors that are clearly supported by the
record and advanced for consideration, or by finding factors that are improper Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 19 of 29 as a matter of law. Id. at 490–91. “An allegation that the trial court failed to
identify or find a mitigating factor requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record.” Id.
at 493.
[35] As to whether Konsdorf is unlikely to commit this offense again, the trial court
noted that Konsdorf did not seem to acknowledge the seriousness of her crime.
The trial court stated that “I am not sure she truly accepts responsibility for her
acts,” noting that in her statement of allocution to the trial court, the first group
of people to whom she apologized were her family and friends, rather than to
the victim. Tr. p. 115. The trial court also noted that, although Konsdorf may
not have lied directly to friends about her actions, she had not been completely
honest about everything that had transpired. The trial court did not err by not
finding Konsdorf unlikely to commit this offense again to be a mitigating factor.
[36] As to the undue hardship that Konsdorf’s family might endure during
Konsdorf’s incarceration, the trial court did consider the impact of her crime on
her mother and her son. Regarding Konsdorf’s son, who is nineteen years old
and lives in a different state, the trial court observed that at least one witness
that Konsdorf presented during her sentencing hearing considered Konsdorf’s
son to be the victim in this case. The trial court stated
Who is affected more by all of this? Who is affected more? The selfish acts of the Defendant have affected not only the true Victim of this crime, but has also resulted or could result in, I should say, in affecting the lives of others including the son. . . . Frankly I am appalled at the attempts to place the child of
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 20 of 29 [Konsdorf] above the Victim of the Defendant’s acts. It’s not to say that I don’t feel for the son. I couldn’t imagine how I would feel or how my eighteen (18) year old son would feel if his mother had been convicted of a crime such as this. I would be depressed and I am sure my son would.
Id. at 114. Thus, the trial court did consider the impact that Konsdorf’s
incarceration would have on her son but rejected it as a mitigating factor.
[37] Regarding Konsdorf’s mother, who is sixty-eight years old, Konsdorf did not
present evidence to show that her mother would suffer an undue hardship
beyond the normal hardship created by any incarceration. Although
Konsdorf’s mother lives with her and relies on Konsdorf for some financial
support, Konsdorf’s mother has been employed in the past, is looking for a job,
and receives Social Security. The trial court did not err by not finding any
undue hardship suffered by Konsdorf’s family to be a mitigating factor.
[38] Konsdorf also contends that the trial court erred by not finding as a mitigating
factor that Konsdorf’s offense was not the most egregious case of sexual
misconduct. She contends that there was no evidence of sexual intercourse or
other physical harm. But as the State points out, had Konsdorf engaged in
sexual intercourse or physically injured the victim, those acts would have
constituted different criminal offenses rather than make the offense of Level 5
felony sexual misconduct with a minor more egregious.
[39] Further, the trial court did find this offense to be egregious because Konsdorf
took advantage of her position of trust as a school bus driver and because she
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 21 of 29 groomed the victim over a period of time. The trial court found that her offense
was egregious also because it was “[w]ell planned. Covering two (2) cameras.
Covering two (2) cameras. Two (2) cameras which would show that which was
going on.” Id. The trial court additionally stated that “I am sorry I keep going
back to these cameras being covered. You are only going to do that if you
know that you are going to be trying to do something that you know you are
not supposed to be doing.” Id. at 115. Konsdorf planned her actions and was
well aware that her actions were inappropriate. Her argument regarding this
factor is unavailing.
B. Appropriateness of Sentence [40] Konsdorf next contends that her sentence is inappropriate in light of the nature
of the offense and her character.
[41] Indiana Appellate Rule 7(B) provides that this Court may revise a sentence if it
is inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court's decision—since the ‘principal role of [our]
review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence. . . . ” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[42] Konsdorf pleaded guilty to Level 5 felony sexual misconduct with a minor. She
faced a term of one to six years, with an advisory sentence of three years. Ind.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 22 of 29 Code § 35-50-2-6(b). Konsdorf received a sentence of four years, with one year
executed and three years suspended. Of the three years suspended, the trial
court ordered Konsdorf to serve two years of supervised probation and one year
of community corrections.
[43] As for the nature of the offense, Konsdorf took advantage of the position of
trust she had as a school bus driver to form an inappropriate relationship with a
young teenage girl. Over the course of several months, Konsdorf
communicated with the victim through text messages and Facebook messages.
This communication ultimately led to physical contact, including hugging,
patting the victim’s rear end, the victim sitting in Konsdorf’s lap, and kissing.
Following some physical contact, Konsdorf sent the victim a message in which
she stated that the victim could “run” but that she has to face Konsdorf every
day and that Konsdorf had “wonderful dreams” after the victim sent her
Snapchat messages. Appellant’s App. Vol. IV p. 7. After the victim expressed
concern about their relationship, Konsdorf told her that she “[b]etter stay
quiet.” Id.
[44] Konsdorf knew that her relationship with the victim was inappropriate, as
evidenced by her internet searches that included “Do you think it’s normal for a
26-year-old guy to date a 14-year-old girl”; “Is it wrong for a 14 year old and a
28 year old to date”; and “tsc investigations.” Id. at 11. Nonetheless, she
pursued the relationship, taking steps, such as having the victim cover up two
cameras on the school bus, to avoid detection.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 23 of 29 [45] As for Konsdorf’s character, Konsdorf offers as evidence of her character that
she pleaded guilty, has no criminal history, and has a history of employment.
We note, however, that Konsdorf used her job as a school bus driver to commit
this offense. Further, Konsdorf wrote on Facebook that “I got played by a 14.”
Appellant’s App. Vol. IV p. 7. This statement suggests that Konsdorf
considered the teenage victim, rather than herself, to be accountable for the
interactions between them.
[46] Given the nature of her offense and Konsdorf’s character, we do not find the
sentence imposed by the trial court to be inappropriate.
III. Probation Conditions [47] Finally, Konsdorf argues that certain probation conditions are overly broad.
“Probation is a criminal sanction where a convicted defendant specifically
agrees to accept conditions upon his behavior in lieu of imprisonment.” Bratcher
v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013). A trial court has broad
discretion to impose conditions of probation. Hevner v. State, 919 N.E.2d 109,
113 (Ind. 2010). The court’s discretion is limited by the principle that the
conditions imposed on the defendant must be reasonably related to the
treatment of the defendant and the protection of public safety. Bratcher, 999
N.E.2d at 873. We will not set aside conditions of probation unless the
conditions 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. Patton v. State, 990 N.E.2d 511, 514 (Ind. Ct. App. 2013).
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 24 of 29 [48] When a defendant challenges a probationary condition because it allegedly
unduly intrudes on a constitutional right, we evaluate that claim by balancing
the following factors: 1) the purpose to be served by probation; 2) the extent to
which constitutional rights enjoyed by law-abiding citizens should be enjoyed
by probationers; and 3) the legitimate needs of law enforcement. Id.
A. Businesses That Sell Sexual Devices or Aids [49] Konsdorf first challenges her probation condition that prohibits her from
visiting businesses that sell sexual devices or aids. The condition states:
12. You shall not possess obscene matter as defined by IC 35-49- 2-1 or child pornography as defined in 18 U.S.C. § 2256(8), including but not limited to: videos, magazines, books, DVD’s and material downloaded from the Internet. You shall not visit strip clubs, adult bookstores, motels specifically operated for sexual encounters, peep shows, bars where partially nude or exotic dancers perform, or businesses that sell sexual devices or aids.
Appellant’s App. Vol. II p. 44-45.
[50] Konsdorf argues that the prohibition is not narrowly tailored to sexually explicit
content involving children and that the prohibition on visiting businesses that
sell “sexual devices or aids” is overly broad because it would extend to drug
stores. The State concedes that the language pertaining to businesses that sell
sexual devices or aids may be overly broad and that remand to the trial court
may be appropriate. The State also suggests, however, that because the other
language in the condition prohibits Konsdorf from visiting businesses of a
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 25 of 29 sexual nature, the provision regarding businesses that sell sexual devices or aids
clearly intends to put Konsdorf on notice as to the types of businesses she
cannot visit.
[51] Regarding whether the prohibition is narrowly tailored to sexually explicit
content involving children, we disagree with Konsdorf’s implication that it need
be. She does not cite any authority in support of her argument that those
convicted of sex crimes against minors should be prohibited only from
accessing sexually explicit content involving children. Further, this condition is
tailored to Konsdorf’s offense, which was sexual in nature. We do not see the
prohibition as a whole as overly broad.
[52] Regarding the specific provision prohibiting her from visiting “businesses that
sell sexual devices or aids,” however, we agree with Konsdorf that the provision
is overly broad and we remand for clarification of the prohibition. See Collins v.
State, 911 N.E.2d 700, 714 (Ind. Ct. App. 2009) (finding that a probation
condition prohibiting defendant from visiting businesses that sell sexual devices
or aids was an unfairly broad prohibition).
B. Sexual Relationship [53] Konsdorf next challenges the probation condition that prohibits her from
engaging in a sexual relationship with any person who has children under the
age of sixteen unless given permission by the court and her treatment provider.
The condition states:
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 26 of 29 17. You shall not engage in a sexual relationship with any person who has children under the age of 16 years unless given permission by the court and your treatment provider.
Appellant’s App. Vol. II p. 46.
[54] Konsdorf argues that this condition is overly broad because it could apply to
any person who has a child under sixteen but who is not the custodial parent
and whose child does not reside with that person, and because it could apply to
any person who has a child under sixteen but who has no contact with that
child. The State contends that this condition does not prohibit Konsdorf from
engaging in sexual activity with an adult who has a child under the age of
sixteen but instead only requires her to obtain permission before engaging in
such a relationship. The State further contends that this condition serves to
protect the public by ensuring that appropriate safeguards are put in place to
limit the risk of Konsdorf reoffending.
[55] Considering the wide range of implications that this probation condition
includes, we agree with Konsdorf that this probation condition is overly broad.
Initially, we note that other probation conditions involving a defendant’s
relationships require the defendant to notify a probation officer of a dating,
intimate, or sexual relationship so that a probation department can investigate
the situation and determine whether there is a risk that children might be
exposed to contact with the defendant. See, e.g., Smith v. State, 779 N.E.2d 111,
117 (Ind. Ct. App. 2002). Our court has upheld these conditions as reasonably
related to the goal of protecting children because “it is not uncommon that child
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 27 of 29 molesters gain access to their victims through romantic relationships with adult
relatives of the child.” Id.
[56] Konsdorf’s probation condition, however, requires more of her—rather than
notifying her probation officer of a relationship such that the probation
department could investigate and protect against any risks to children, Konsdorf
is required to seek permission from the trial court and her treatment provider to
engage in a sexual relationship with a person who has a child under the age of
sixteen. Indeed, under this condition, she must seek permission to engage in a
sexual relationship with an adult who has a child under the age of sixteen
regardless of whether that adult even has a relationship or any contact with the
child. In other words, this probation requirement mandates that Konsdorf seek
permission twice over to engage in a sexual relationship with an adult who is a
parent to a child under the age of sixteen based merely on that adult’s
parenthood. We find such a requirement to be overly broad in its goal of
protecting children. We remand to the trial court with instructions to clarify
this probation condition so that it is narrowly tailored to the goal of protecting
children.
C. Incidental Contact [57] Konsdorf next challenges her probation condition that prohibits her from
having any contact with any person under the age of sixteen unless she receives
court approval or successfully completes a court-approved sex offender
treatment program. The condition specifies:
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 28 of 29 20. You shall have no contact with any person under the age of 16 unless you receive court approval or successfully complete a court-approved sex offender treatment program, pursuant to IC 35-38-2-2.4. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties.
[58] Konsdorf relies on McVey v. State, 863 N.E.2d 434, 449 (Ind. Ct. App. 2007), in
which this Court held that a probation condition requiring the defendant to
“report any incidental contact with persons under age 18” to his probation
officer was overly broad. Here, however, Konsdorf’s probation condition does
not include a provision prohibiting incidental contact. Regarding probation
conditions that prohibit contact with any person under the age of sixteen unless
prior approval is obtained, our court has held that the probation condition as to
intentional contact with persons under sixteen to be constitutional but that,
under such a condition, a probationer is not required to avoid inadvertent or
unintentional contact with persons under sixteen. Rexroat v. State, 966 N.E.2d
165, 173 (Ind. Ct. App. 2012). Accordingly, Konsdorf’s condition of probation
does not prohibit incidental contact with minors. Konsdorf’s argument
regarding this probation condition is unavailing.
[59] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions to clarify two of Konsdorf’s probation conditions.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A04-1704-CR-881 | November 7, 2017 Page 29 of 29