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?


        The Defendant: Yes.


        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?


        The Defendant: Yes.


        Defense Counsel: Ok. Was there-would both-was there also
        perhaps touching?


        The Defendant: No.


        Defense Counsel: No touching? Just the kissing?


        The Defendant: Yes.


        Defense Counsel: Was it-was that kissing of a-with an intention
        to satisfy your sexual desires?


        The Defendant: No.


        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

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               [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.



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[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.


       Appellant’s App. Vol. II p. 46.


[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.




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