Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                         Apr 23 2014, 9:58 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

CHRIS M. TEAGLE                                  GREGORY F. ZOELLER
Muncie, Indiana                                  Attorney General of Indiana

                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOSEPH PENNINGTON,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 05A02-1309-CR-823
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE BLACKFORD CIRCUIT COURT
                           The Honorable Dean A. Young, Judge
                               Cause No. 05C01-1301-FB-6



                                       April 23, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
      Joseph Pennington appeals his sentence for sexual misconduct with a minor as a

class B felony. Pennington raises three issues, which we restate as:

      I.     Whether the trial court erred in failing to provide Pennington’s
             defense counsel an adequate opportunity to address the presentence
             investigation report (the “PSI”) and present a final argument; and

      II.    Whether his sentence is inappropriate in light of the nature of the
             offense and his character.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

      Pennington, who was a youth leader at a church S.W. attended, had sexual

intercourse with and performed or submitted to deviate sexual conduct with S.W. a

number of times when she was fifteen years old. On January 4, 2013, the State charged

Pennington with three counts of sexual misconduct with a minor as class B felonies. On

August 8, 2013, a written plea agreement was filed pursuant to which Pennington agreed

to plead guilty to one count of sexual misconduct with a minor as charged and the State

agreed to dismiss the other counts. The plea agreement also provided that Pennington’s

executed time would not exceed eight years. On September 17, 2003, the trial court

accepted Pennington’s guilty plea and held a sentencing hearing. The court found the

facts that Pennington had no prior criminal history and that a long term of incarceration

would constitute a hardship on his wife and minor child to be mitigating circumstances.

The court also found that Pennington’s victimization of the child was continuous,

approximating a period of one and one-half years, that he was advised by his pastor early

on to discontinue any further involvement with S.W. which involvement began when

S.W. was fourteen years of age, that Pennington was a youth pastor for his church where

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he met S.W., and that fact that his responsibility was to provide religious counseling and

guidance for young people to be aggravating circumstances.           The court sentenced

Pennington to fifteen years with eight years executed in the Department of Correction

and seven years suspended to probation. The court later found Pennington to be a

sexually violent predator.

                                      DISCUSSION

                                             I.

       The first issue is whether the court erred in failing to provide Pennington’s defense

counsel an adequate opportunity to address the PSI and present a final argument.

Pennington contends that the trial court committed two errors in conducting the

sentencing hearing.    First, he argues the court failed to allow defense counsel the

opportunity to address the information in the PSI that he believed should not be

considered by the court. Specifically, he claims that, while the court stated at one point

during the hearing that his request to discuss the information would be addressed at a

later point, defense counsel was never given that opportunity.        Second, Pennington

asserts the court erred in failing to allow his defense counsel to make a final argument at

the sentencing hearing, and he requests that we remand for a new sentencing hearing.

       The State maintains that Pennington testified about several matters in the PSI, he

acknowledged that the factual history of the PSI was accurate, he was given the

opportunity to raise any issues that remained immediately before the trial court

pronounced its sentence, and he affirmatively declined that opportunity. The State also

argues that Pennington declined the opportunity to make argument when offered by the


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court and that the court asked whether Pennington had any additional evidence he would

like to present, intended to offer any statement in allocution, or raise anything else before

the court pronounced its sentence, and Pennington declined.             In his reply brief,

Pennington argues the court asked if he wanted to make a statement on his own behalf

but that this was not the same as permitting his counsel to make a final argument on his

behalf.

          With respect to the PSI, Ind. Code § 35-38-1-8(a) provides in part that “a

defendant convicted of a felony may not be sentenced before a written presentence report

is prepared by a probation officer and considered by the sentencing court.” The contents

of the PSI must be disclosed to the convicted person, and the convicted person should be

afforded a fair opportunity to controvert the material contained within the report.

Carmona v. State, 827 N.E.2d 588, 598-599 (Ind. Ct. App. 2005). With respect to the

final argument, Ind. Code § 35-38-1-5 provides in part that the court “shall afford counsel

for the defendant an opportunity to speak on behalf of the defendant” and that “[t]he

defendant may also make a statement personally in the defendant’s own behalf and,

before pronouncing sentence, the court shall ask the defendant whether the defendant

wishes to make such a statement.”

          The record reveals that, prior to accepting Pennington’s guilty plea, the court

asked defense counsel to establish the facts, and defense counsel questioned Pennington

regarding the facts. Following the presentation of the factual basis, the court noted that it

had directed the preparation of the PSI and that it had been filed with the court. The

court asked Pennington and his counsel “Do you know of any changes of form or other


                                             4
matters that need to be addressed,” and defense counsel replied “Well, there is just a

couple statements in here that I would ask that the Court not consider.” Transcript at 12.

The court stated “Okay. We’ll take that up, then, during the presentation of evidence,”

and defense counsel stated “But, uh, but as far as the factual history, it’s all accurate.” Id.

The court asked Pennington if there was anything he wished to present before the court

accepted or rejected the plea, and Pennington did not have anything further. The court

accepted Pennington’s plea of guilty and entered judgment of conviction accordingly.

       The court then stated that it would proceed with sentencing and asked defense

counsel if he had any witnesses, and defense counsel began by presenting the testimony

of Pennington. Defense counsel asked “this is in the [PSI], you’ve never been in any

kind of criminal trouble before, correct,” and Pennington replied “None whatsoever.” Id.

at 15. Defense counsel further stated “this is mentioned in the [PSI], you have, did some

counseling at Family Services Society, correct,” and Pennington responded affirmatively.

Id. at 16. On cross-examination, the State said “We have our statement, it’s in the [PSI],

but I just want to make sure and hit a couple of points” and then asked about how

Pennington knew S.W. Id. at 17. Pennington explained that he and S.W. attended the

same church, that he became a youth pastor, and that she was a member of the youth

group. In addition to Pennington’s testimony, defense counsel presented the testimony of

Pennington’s wife, his stepfather-in-law, and his brother, and the State presented the

testimony of S.W.’s mother, who read a statement prepared by S.W. Following the

presentation of testimony, the court asked “Any further evidence you want to present at

this time, [defense counsel],” and defense counsel responded “No.” Id. at 40. The court


                                              5
stated “Alright. [] Pennington is entitled to make a statement in allocution. Does he want

to say anything at this time before sentence is pronounced,” and defense counsel stated

“No, sir.” Id. The court stated “Nothing else,” and defense counsel stated “He doesn’t

have anything else.” Id. The court then found mitigating and aggravating circumstances

and sentenced Pennington.

       Based upon the record, we cannot say that the trial court denied Pennington or his

defense counsel an adequate opportunity to contest any statements in the PSI or to present

a final argument. Pennington does not demonstrate any error or that he was prejudiced

and is not entitled to reversal of his sentence or a new sentencing hearing on these bases.

See Hardy v. State, 436 N.E.2d 837, 840 (Ind. Ct. App. 1982) (holding that the defendant

failed to show any prejudice where the defendant argued he was not afforded an

opportunity to contest a statement in a presentence report).

                                             II.

       The next issue is whether Pennington’s sentence is inappropriate in light of the

nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides

that we “may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, [we find] that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Under this rule, the burden is on the defendant

to persuade the appellate court that his or her sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       In support of his claim that his sentence is inappropriate, Pennington argues that

he did not use any weapons in the commission of the offense, the victim appears to have


                                             6
recovered from the crimes as shown by the fact that her relationships with her parents

have been repaired, he had no prior criminal convictions, there were positive statements

about him as a father and son-in-law, he showed remorse and apologized to the victim

and her family, and he had been gainfully employed throughout his adult life.            He

requests this court to revise his sentence to the advisory sentence of ten years with six

years on electronically monitored home detention and four years suspended.

       The State argues that Pennington used his position as a youth pastor at his church

to groom and sexually victimize a fifteen-year-old girl, his grooming of her began when

she was fourteen, and that despite being told that he was not to have contact with S.W.,

within two months Pennington was kissing, fondling, and having intercourse with her.

The State notes that Pennington had sex with S.W. on ten to twelve occasions at a park,

in his car, at his place of employment, and at S.W.’s house, that they had oral sex at least

a dozen times, and they exchanged nude photographs via text messages. The State argues

that S.W. gave Pennington a “hand job” on a church bus while Pennington’s wife was on

the bus. Appellee’s Brief at 11. The State points to the facts that, as a result of the

relationship, S.W. grew estranged from her parents and careless in her schoolwork, she

routinely lied about who she was talking to on the phone, she avoided visits with her

father because she did not wish to be away from Pennington, her grades suffered, and

that, when he finally broke off the relationship, she realized he had been manipulating

her. The State points out that S.W. received psychiatric treatment and that the ongoing

nature of the sexual predation, the level of manipulation, and the lasting impact on S.W.

all show that the nature of the offense is deserving of an enhanced sentence.


                                             7
      Our review of the nature of the offense reveals that Pennington met S.W. when she

was fourteen and began to attend the youth group where he was a youth pastor.

According to the report of the probation department, a neighbor witnessed inappropriate

contact between Pennington and S.W., and Pennington was told by the church leadership

that he was never to be alone with S.W. Pennington stated that S.W. was fifteen years

old when they first had sexual intercourse, and that they had intercourse on “at least ten

to twelve occasions,” including at his place of employment at the time, in his car, and at

S.W.’s house. Appellant’s Confidential Appendix at 8. Pennington also stated that he

and S.W. “had oral sex ‘at least a dozen times,’” and that “there was ‘mutual fondling’ on

numerous occasions.” Id. The report also indicated that S.W. gave him a “hand job” in

the church van when they, along with several other youths, adults, and Pennington’s wife,

were in the vehicle traveling home from a concert. Id. Pennington also stated that he and

S.W. “sent nude pictures of themselves via text messages . . . ten (10) to twelve (12)

times.” Id.

      S.W.’s mother read a statement prepared by S.W. in which she stated that

Pennington was thirty years old when S.W. was fourteen years old, Pennington

manipulated her and made her believe they would eventually have a future together, they

discussed the number of kids they would have together and their children’s names,

Pennington was a youth pastor and had a full-time government job, S.W. started to fight

with her mother, S.W. avoided seeing her father because she did not want to miss a

moment with Pennington, she lied about who she was texting, she stopped caring about

her schoolwork and her grades suffered, and that, in hindsight, she was the only one


                                            8
being truthful with her feelings. S.W. described the impact Pennington had on her and

her family and how her relationships with her family and friends have improved

dramatically since Pennington has not been in her life, and said she received counseling

related to Pennington’s involvement with her.

       Our review of the character of the offender reveals that Pennington’s wife and

stepfather-in-law made positive statements about Pennington being a good father to his

daughter, Pennington’s wife stated she would not be able to meet her household expenses

by herself, and that Pennington’s brother indicated he was willing to let Pennington work

for him if that would help. The PSI indicates that Pennington had no prior criminal

convictions, and he apologized to S.W.’s family at sentencing. According to the report of

his interview with the probation department, he stated that, shortly after he ended his

relationship with S.W., he began an affair with a married woman who also attended his

church and was also a youth leader.

       After due consideration of the trial court’s decision, and in light of the protracted

nature of Pennington’s sexual relationship with S.W., we conclude that Pennington has

not met his burden of showing that the sentence imposed by the trial court is

inappropriate in light of the nature of the offense and his character.

                                      CONCLUSION

       For the foregoing reasons, we affirm Pennington’s sentence for sexual misconduct

with a minor as a class B felony.

       Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.


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