MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Dec 29 2016, 9:20 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Douglas S. Walton                                       Gregory F. Zoeller
Walton Law Office                                       Attorney General of Indiana
Evansville, Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David A. Penfold,                                       December 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        63A01-1606-CR-1436
        v.                                              Appeal from the Pike Circuit Court
                                                        The Honorable Jeffrey L.
State of Indiana,                                       Biesterveld, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        63C01-1408-F4-374



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016    Page 1 of 4
                                       Statement of the Case
[1]   David A. Penfold appeals his sentence for child solicitation, as a Level 4 felony,

      following his guilty plea. Penfold raises a single issue for our review, namely,

      whether the advisory sentence is inappropriate in light of the nature of Penfold’s

      offense and his character. We affirm.


                                 Facts and Procedural History
[2]   In May of 2014, Penfold, a twenty-three-year-old male who lived in Hebron,

      Indiana, sent a number of sexually explicit messages over the internet to a

      person whom he believed to be a fourteen-year-old female. That person was

      really an adult “decoy” associated with “the Perverted Justice Organization.”

      Appellant’s App. Vol. II at 20. At some point, the decoy informed local police

      officers about Penfold’s attempted solicitations, and they monitored and

      recorded Penfold’s communications. After three months, in August Penfold

      arranged to meet with the decoy. Penfold arrived at a predetermined location

      at a scheduled time, and local police arrested him.


[3]   The State charged Penfold with two counts of child solicitation, as Level 4

      felonies. On September 14, 2015, Penfold pleaded guilty, pursuant to a written

      plea agreement, to one of the charges and, in exchange, the State dismissed the

      other charge. Pursuant to his plea agreement, Penfold agreed to leave

      sentencing open to the trial court’s discretion so long as the court did not

      sentence him to more than seven years executed in the Department of

      Correction.


      Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016   Page 2 of 4
[4]   The court accepted Penfold’s plea agreement and held a sentencing hearing.

      Following that hearing, the court found as an aggravator that Penfold was a

      “high risk to reoffend.”1 Appellant’s App. Vol. III at 36. As mitigators, the

      court found that Penfold “has no history of delinquency or criminal activity”

      and that he “has accepted responsibility for his actions and has plead[ed] guilty

      and saved the Court time and resources.” Id. The court concluded that the

      aggravating and mitigating factors were in equipoise and, as such, ordered

      Penfold to serve the advisory sentence of six years. This appeal ensued.


                                        Discussion and Decision
[5]   Penfold contends that his six-year sentence is inappropriate in light of the

      nature of the offense and his character. As we have explained:

               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “revise a sentence authorized by statute if, after due
               consideration of the trial court's decision, the Court finds that the
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or



      1
         In his brief, Penfold asserts that “the only apparent support for that finding is that Mr. Penfold committed a
      sexual offense” and that the trial court “assume[d] a high risk to re-offend . . . simply because a sexual offense
      is at issue.” Appellant’s Br. at 8-9. Penfold’s assertions are plainly contrary to the record. The trial court
      expressly relied on the Indiana Risk Assessment System’s evaluation of Penfold, which unambiguously
      labeled him “in the HIGH risk category to reoffend.” Appellant’s App. Vol. III at 46.

      Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016              Page 3 of 4
              her sentence has met the inappropriateness standard of review.
              Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


      Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[6]   On appeal, Penfold asserts that the advisory sentence is inappropriate in light of

      the nature of the offense because “[t]here was no victim in this case.”

      Appellant’s Br. at 9. And Penfold asserts that his sentence is inappropriate in

      light of his character based on his lack of criminal history, his evidence of

      mental health issues, and his evidence that there is a low likelihood that he will

      reoffend. We cannot agree.


[7]   Regarding the nature of the offense, Penfold spent three months attempting to

      solicit a fourteen-year-old female to engage him in various sexual acts.

      Penfold’s messages were explicit and detailed, and it is not to his benefit that he

      was unable to complete his attempted crime simply because the person with

      whom he was communicating was not who he thought she was. Regarding his

      character, the record demonstrates that he is a high risk to reoffend. Further,

      the trial court has considered and rejected Penfold’s evidentiary arguments, and

      we will not reconsider the trial court’s assessment on appeal. We cannot say

      that the advisory sentence of six years is inappropriate in light of the nature of

      Penfold’s offense and his character and, thus, we affirm his sentence.


[8]   Affirmed.


      Bailey, J., and May, J., concur.


      Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016   Page 4 of 4
