MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        Dec 30 2015, 7:54 am
regarded as precedent or cited before 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
Timothy P. Broden                                       Gregory F. Zoeller
Lafayette, Indiana                                      Attorney General of Indiana

                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tommy E. Foster,                                        December 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1505-CR-451
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79D01-1401-FC-2



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015      Page 1 of 5
                                            Statement of the Case
[1]   Tommy E. Foster appeals his sentence following his conviction for child

      solicitation, as a Class C felony, and for being a habitual offender following a

      guilty plea. Foster raises a single issue for our review, namely, whether his

      sentence is inappropriate in light of the nature of his offenses and his character.

      We affirm.


                                     Facts and Procedural History
[2]   In January of 2014, Foster posted an advertisement on Craigslist seeking a

      sexual partner and stating that “age,” among other things, was “not important.”

      Appellant’s App. at 53. Lafayette Police Department Sergeant Gossard,1

      posing as a thirteen-year-old girl, responded to Foster’s advertisement. When

      informed of Sergeant Gossard’s purported age, Foster responded that he was

      “cool with your age” and then asked Sergeant Gossard if “she” would perform

      oral sex. Id. Foster and Sergeant Gossard exchanged several other sexually

      explicit messages thereafter. Eventually, Foster arranged to meet with Sergeant

      Gossard for the purpose of engaging in sexual activity. At the arranged time

      and place, a local Wendy’s restaurant on the afternoon of January 17, Lafayette

      Police Department Detective Pinkard 2 located and arrested Foster.




      1
          Sergeant Gossard’s first name is not in the record on appeal.
      2
          Detective Pinkard’s first name is not in the record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015   Page 2 of 5
[3]   On January 22, the State charged Foster, in relevant part, with child

      solicitation, as a Class C felony, and for being a habitual offender. Foster

      pleaded guilty to those two charges pursuant to a written plea agreement, which

      called for an aggregate executed sentence between eight and twelve years. The

      trial court accepted the plea agreement and sentenced Foster to six years for

      child solicitation and five years for being a habitual offender, for a total term of

      eleven years executed. In entering Foster’s sentence, the court stated:


              The Court finds as mitigating factors the defendant plead [sic]
              guilty and accepted responsibility, the defendant has family
              support[,] and the defendant has mental health issues.


              The Court finds as aggravating factors the defendant has a
              criminal history, fifteen (15) Petitions to Revoke Probation were
              filed with eight (8) found to be true, the defendant was on
              probation at the time of the commission of the instant offense,
              the defendant has been unsuccessfully released from probation[,]
              and the defendant has a history of substance abuse.


              The Court further finds that the aggravating factors outweigh the
              mitigating factors.


      Id. at 24. This appeal ensued.


                                     Discussion and Decision
[4]   Foster contends that his sentence is inappropriate in light of the nature of the

      offenses and his character. 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

      Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015   Page 3 of 5
      inappropriate in light of the nature of the offense and the character of the

      offender.” We assess the trial court’s recognition or non-recognition 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 attempt 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 her sentence has met the

      inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007).


[5]   We initially note that, had he gone to trial, Foster faced a maximum possible

      term of twenty years for a Class C felony conviction and for being found to be a

      habitual offender. See Ind. Code §§ 35-50-2-6, -8 (2013). However, pursuant to

      Foster’s plea agreement, the maximum possible term to which the court could

      have sentenced him was twelve years. And, despite finding six aggravators to

      outweigh three mitigators, the court actually sentenced Foster to a total term of

      eleven years.


[6]   With respect to the nature of the offenses, Foster argues that “the police

      facilitated an offense that was not [Foster’s] original intent,” and that the

      offense occurred “only after police had whetted [his] appetite for a sexual

      encounter.” Appellant’s Br. at 5. Foster further argues that he was “only

      minimally eligible for the habitual offender enhancement.” Id. And, with

      respect to his character, Foster emphasizes his mental illness and downplays his

      criminal history.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015   Page 4 of 5
[7]   We cannot say that Foster’s eleven-year aggregate sentence is inappropriate

      with respect to the nature of the offenses. Foster’s arguments on this issue

      ignore the fact that his Craigslist request for a sexual encounter stated that

      “age,” among other things, was “not important.” Appellant’s App. at 53.

      Foster also ignores the fact that he stated that he was “cool with your age”

      when he believed the person responding to his request was a thirteen-year-old

      girl. Id. Further, Foster sent numerous sexually explicit messages to a person

      he believed to be a thirteen-year-old girl, and he eventually arranged to meet his

      target in the hope of furthering his desires. And Foster’s habitual-offender

      enhancement was for five years, or one year above the minimum enhancement

      required by law and seven years below the maximum enhancement permitted.

      See I.C. §§ 35-50-2-6, -8.


[8]   Neither can we say that Foster’s sentence is inappropriate in light of his

      character. The trial court has already considered Foster’s mental illness vis-à-

      vis his criminal record. And Foster has an extensive criminal history, which

      includes twenty convictions and numerous probation violations. And he was

      on probation at the time of the instant offenses. After considering both the

      nature of the offenses and the character of the defendant, we conclude that this

      sentence is not inappropriate. We affirm Foster’s sentence.


[9]   Affirmed.

      Riley, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015   Page 5 of 5
