MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Feb 05 2019, 8:30 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
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Lee Meschen,                                      February 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1329
        v.                                               Appeal from the Parke Circuit
                                                         Court
State of Indiana,                                        The Honorable Samuel A. Swaim,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         61C01-1609-F4-268



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019                    Page 1 of 12
                                          Statement of the Case
[1]   Robert Meschen appeals the sentence he received for multiple convictions of

      both child exploitation and possession of child pornography. We affirm.


                                                    Issues
[2]   Meschen presents three issues for our review, which we consolidate and restate

      as two:


                 I. Whether the trial court erred in sentencing Meschen.


                 II. Whether Meschen’s sentence is inappropriate.


                                       Facts and Procedural History
[3]   In September 2016, Meschen was charged with five counts of Level 4 felony
                                   1
      child exploitation and five counts of Level 5 felony possession of child
                          2
      pornography. Subsequently, Meschen filed a motion for competency

      evaluation. The trial court granted the motion and appointed two doctors to

      evaluate Meschen. A competency hearing was held in April 2017, at which the

      trial court found Meschen to be incompetent. The court ordered Meschen

      committed to the state division of mental health and addiction for competency

      restorative services. In November, following treatment at Logansport State




      1
          Ind. Code § 35-42-4-4 (2016).
      2
          Ind. Code § 35-42-4-4.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 2 of 12
      Hospital, Meschen attained his competency. He was returned to jail for

      disposition of these charges, and, pursuant to a plea agreement, he pleaded

      guilty but mentally ill (GBMI) to all ten charges in January 2018. The

      agreement provided for an aggregate sentence of 5,475 days (i.e., fifteen years)

      and left to the judge’s discretion how the sentence would be served and how

      much, if any, of the sentence would be suspended. It was agreed that both

      parties could present evidence and make recommendations to the trial court.


[4]   Pursuant to the terms of the plea agreement, the trial court sentenced Meschen

      to concurrent terms of 2,190 days (i.e., six years) on each of the first four counts

      of child exploitation, with an additional 2,190 days on the fifth count to be

      served consecutively thereto. In addition, he was ordered to serve 1,095 days

      (i.e., three years) on each of the five counts of possession of child pornography,

      to be served concurrently to one another and consecutively to the fifth count of

      child exploitation, for a total aggregate sentence of 5,475 days. The court then

      exercised its discretion under the agreement to order that the first 4,380 days

      (i.e., twelve years) of the sentence be executed, with the balance suspended to

      probation. Meschen now appeals his sentence.


                                   Discussion and Decision
                              I. Abuse of Sentencing Discretion
                                     A. Failure to Suspend Sentence

[5]   Meschen first contends the trial court erred by suspending only three years of

      his fifteen-year sentence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 3 of 12
[6]   Pursuant to his plea agreement, which was accepted by the trial court, Meschen

      agreed to an aggregate fifteen-year sentence and to leaving to the court’s

      discretion the portion of the sentence to be suspended, if any. “It is within the

      trial court’s discretion to accept or reject a plea agreement and the sentencing

      provisions therein.” Bennett v. State, 802 N.E.2d 919, 921 (Ind. 2004). “A plea

      agreement is contractual in nature, binding the defendant, the State, and the

      trial court.” Vaughn v. State, 982 N.E.2d 1071, 1073 (Ind. Ct. App. 2013).

      Accordingly, once the court accepts an agreement, it is strictly bound by the

      agreement’s provisions, including those concerning sentencing. Bennett, 802

      N.E.2d at 921-22.


[7]   Here, at sentencing the trial court found three mitigating circumstances and no

      aggravating circumstances. It also determined that Meschen had “received a

      substantial benefit from the plea agreement already,” Tr. Vol. 2, p. 72, referring

      to the fact that the sentences for the five counts of child exploitation could have

      all been ordered to be served consecutively to each other because they are

      crimes of violence. See Ind. Code § 35-50-1-2(a)(16) (2016). Meschen argues

      the trial court improperly considered this a benefit that offset the mitigating

      effect of the three mitigating circumstances, thus causing the court to order only

      three years of his fifteen-year sentence suspended.


[8]   A decision not to suspend a sentence is reviewable only for an abuse of

      discretion. Turner v. State, 878 N.E.2d 286, 296 (Ind. Ct. App. 2007), trans.

      denied. “The suspension of a sentence is a matter of grace and a judicial favor to



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 4 of 12
       a defendant. In other words, a suspended sentence is not something to which a

       defendant has a right or an entitlement.” Id.


[9]    Thus, the trial court would have acted well within its discretion if it had ordered

       Meschen to serve the entire fifteen-year sentence. Instead, the trial court

       showed leniency by suspending three years of the sentence. Even if the trial

       court considered improper circumstances, Meschen was not entitled to have

       any portion of his sentence suspended. In determining Meschen’s sentence, the

       court stated, “obviously the crimes are pretty horrendous and there’s gonna

       have to be some accountability there,” and it characterized the twelve-year

       sentence as “a fair sentence given everything combined here.” Tr. Vol. 2, p. 73.


[10]   Additionally, although acknowledging that the trial court found his mental

       illness to be a mitigating circumstance when determining what portion, if any,

       of his sentence to suspend, Meschen alleges the court erred because its

       consideration of his mental illness was “minimal” and it did not indicate what

       mitigating weight it accorded his illness.


[11]   Our Supreme Court has stated that “a GBMI defendant is not automatically

       entitled to any particular credit or deduction from his otherwise aggravated

       sentence simply by virtue of being mentally ill.” Weeks v. State, 697 N.E.2d 28,

       30 (Ind. 1998). Trial courts should consider what mitigating weight, if any, to

       accord a defendant’s mental illness, but the court has no obligation to give the

       defendant’s illness the same weight as does the defendant. Id. Moreover, the

       relative weight or value assignable to mitigating circumstances found by the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 5 of 12
       trial court is not subject to review for abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.


[12]   The trial court found Meschen’s mental illness to be a mitigating factor. To the

       extent that he claims the trial court abused its discretion in failing to give this

       mitigating factor greater weight, this claim is not available for appellate review.

       See id. While recognizing Meschen’s three proffered mitigators, including his

       mental illness, the trial court determined that the circumstances in this case did

       not warrant suspension of more than three years of his aggregate sentence. The

       trial court did not abuse its discretion.


                                  B. Imposition of Probation User Fees

[13]   Meschen next asserts that the trial court erred in ordering probation fees that

       exceed the statutory maximum.


[14]   Sentencing decisions include decisions to impose fees and costs, and we review

       these decisions for an abuse of discretion. Coleman v. State, 61 N.E.3d 390, 392

       (Ind. Ct. App. 2016). An abuse of discretion occurs when the decision is 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. Id. “If

       the fees imposed by the trial court fall within the parameters provided by

       statute, we will not find an abuse of discretion.” Berry v. State, 950 N.E.2d 798,

       799 (Ind. Ct. App. 2011).


[15]   The court ordered Meschen to pay an initial probation user’s fee of $100 for

       each of his ten convictions for a total of $1,000. Appellant’s App. Vol. II, p.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 6 of 12
       137. Meschen argues this amount is improper, alleging the statute only permits

       a maximum of $100 in initial probation user’s fees.


[16]   Indiana Code section 35-38-2-1 (2012) governs conditions of probation.

       Subsection (b) provides that if a person is convicted of a felony and placed on

       probation, the trial court shall order the person to pay probation user’s fees as

       prescribed in subsection (d) of the statute. Subsection (d), in turn, mandates

       that the court shall order each person convicted of a felony to pay “not less than

       twenty-five dollars ($25) nor more than one hundred dollars ($100) as an initial

       probation user’s fee.” Ind. Code § 35-38-2-1(d)(1). Finally, subsection (i)

       provides:


               (i) A person placed on probation for more than one (1) crime:


                        (1) may be required to pay more than one (1) initial
                        probation user’s fee . . . .


[17]   The fees imposed by the trial court fall within the parameters of the statute. We

       find no abuse of discretion.


                                     II. Inappropriate Sentence
[18]   Meschen argues that his sentence is inappropriate in light of the nature of his

       offenses and his character. He maintains that the trial court should have

       suspended his fifteen-year sentence to time served, with the remainder to be

       served on probation.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 7 of 12
[19]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of sentences through Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we determine

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

       2014). However, “we must and should exercise deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

       court’s judgment should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character). Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, the question under Appellate

       Rule 7(B) is not whether another sentence is more appropriate; rather, the

       question is whether the sentence imposed is inappropriate. King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.

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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 8 of 12
[20]   A plea agreement that does not provide for an open plea but nevertheless

       affords the trial court some discretion in sentencing is subject to review under

       Rule 7(B). Rivera v. State, 851 N.E.2d 299, 301-02 (Ind. 2006) (holding that

       agreed ten-year sentence was subject to Rule 7(B) review because trial court had

       exercised discretion in determining how much of sentence was suspended to

       probation). Such is the case here where the plea agreement provides for a

       fifteen-year sentence, and the trial court was to determine how much, if any, of

       the sentence would be suspended. Thus, the only question for us on appeal is

       whether the trial court’s order suspending three years is inappropriate.


[21]   To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offenses. Here, Meschen agreed to the

       advisory sentence on all ten counts and to an aggregate sentence of fifteen
                3
       years.


[22]   Next, we look to the nature of the offenses and the character of the offender.

       As to the nature of the current offenses, we note that Meschen pleaded guilty

       but mentally ill to five counts of child exploitation and five counts of possession

       of child pornography. These offenses involved possessing and sharing images

       of children under the age of twelve—including infants and toddlers, some in

       bondage—being forced to engage in sexual conduct. Police obtained more than

       3,565 files from Meschen’s computer, the majority of which contained child



       3
        See Ind. Code § 35-50-2-5.5 (2014) (advisory sentence for Level 4 felony is six years); see also Ind. Code § 35-
       50-2-6(b) (2014) (advisory sentence for Level 5 felony is three years).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019                    Page 9 of 12
       pornography. At his sentencing, a detective testified that he had “a pretty

       significant collection” of child pornography and that “the content of his

       collection [ ] was alarming.” Tr. Vol. 2, p. 49. The trial court characterized

       Meschen’s offenses as “horrendous,” id. at 73, and even Meschen himself

       concedes that his offenses are “disturbing.” Appellant’s Br. p. 21.


[23]   Yet, Meschen argues that because he was alleged to have only possessed and

       shared the images and not alleged to have created the images, his “offenses

       suggest, at most, concurrent, advisory sentences.” Id. However, Meschen’s

       plea agreement specifically provided for certain consecutive terms. The

       agreement called for concurrent, advisory terms on each of the first four counts

       of child exploitation, with an advisory term on the fifth count to be served

       consecutively thereto. In addition, the agreement provided for advisory terms

       on each of the five counts of possession of child pornography, to be served

       concurrently to one another and consecutively to his aggregate sentence on the

       five counts of child exploitation, for a total aggregate sentence of fifteen years.

       By accepting the plea agreement, Meschen agreed to a portion of his sentences

       to be consecutive. The sole factor left to the court’s discretion was the portion

       of his fifteen-year sentence, if any, that would be suspended. Thus, review of

       the consecutive sentencing terms is not available for Meschen on appeal. See

       Rivera, 851 N.E.2d at 301-02 (recognizing that trial court is bound by terms of

       plea agreement and Rule 7(B) review is not available where court has imposed

       term that is non-discretionary). Nothing about the nature of Meschen’s offenses

       persuades us that his twelve-year executed sentence is inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 10 of 12
[24]   With regard to the character of the offender, we observe that the trial court

       considered Meschen’s lack of criminal history as a mitigating circumstance.

       However, while it is true that Meschen has no formal criminal history, he has

       not led a law-abiding life. Most notably, in telling detectives he was not certain

       how long he had been downloading child pornography from the internet, he

       referred to obtaining child pornography from a website that had been closed

       down for approximately five years. Meschen also admitted frequent marijuana

       use as well as use of other illegal drugs.


[25]   In his brief, Meschen asserts that his character “supports great leniency in

       sentencing.” Appellant’s Br. p. 21. He then provides a timeline of his

       behaviors and diagnoses without providing any information to support his

       contention beyond what the court had already determined. The court found

       Meschen’s mental illness to be a mitigating factor, and, in light of Meschen’s

       plea of guilty but mentally ill, he will be evaluated and treated for his mental

       illness in the DOC. See Ind. Code § 35-36-2-5(c) (2015).


[26]   Considering both the nature of the offenses and the character of the offender,

       and giving due consideration to the trial court’s sentencing decision, we are

       unable to conclude that Menschen’s twelve-year sentence is inappropriate.


                                                Conclusion
[27]   For the reasons stated, we conclude that the trial court did not abuse its

       discretion in sentencing Meschen and that his sentence is not inappropriate

       given the nature of the offenses and his character.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 11 of 12
[28]   Affirmed.


       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1329 | February 5, 2019   Page 12 of 12
