ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Leanna Weissmann Gregory F. Zoeller

Lawrenceburg, Indiana Attorney General of Indiana

Scott L. Barnhart

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

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No. 15S01-0807-CR-392

EDWIN HAYES, JR.,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

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Appeal from the Dearborn Circuit Court, No. 15C01-0603-FB-007

The Honorable James Humphrey, Judge

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On Petition to Transfer from the Indiana Court of Appeals, No. 15A01-0707-CR-340

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May 19, 2009

Sullivan, Justice.

We affirm the convictions of Edwin Hayes, Jr., for promoting prostitution, child 

exploitation, and possession of marijuana and order that he be sentenced to 18 years, with 14 

years to be served in the Department of Correction.
2

Background

Edwin Hayes, Jr., age 36, met 15-year-old B.W. at a hotel in Dearborn County and took 

sexually explicit photographs of her. She subsequently reported the incident to the Switzerland 

County Division of Child Services, which then notified the Indiana State Police. Officers 

monitored and recorded telephone conversations between Hayes, B.W., and an undercover 

female police officer who represented herself to Hayes as B.W.’s 17-year-old friend “Sara.” A 

probable cause affidavit reflects a telephone conversation in which Hayes advised B.W. and Sara 

to meet him at a hotel where he would pay them for wearing lingerie, viewing pornographic 

magazines, playing with sexual paraphernalia, and engaging in oral sex. After this call, officers 

set up surveillance at a hotel and arrested Hayes as he approached Sara’s vehicle in the parking 

lot. They found pornographic materials, sexual paraphernalia, and a cellophane bag containing 

marijuana in the front seat of Hayes’s truck and cash in his wallet. The State charged Hayes with 

four counts: Count I (promoting prostitution as a Class B felony); Count II (attempted sexual 

misconduct as a Class B felony); Count III (child exploitation as a Class C felony); and Count IV 

(possession of marijuana as a Class A misdemeanor).

On the day that Hayes’s jury trial was to begin, he submitted an “open” guilty plea to all 

four counts, i.e., he pled guilty to each of the charged offenses but the trial court was left with 

discretion over the length of the sentence. See Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004). 

The trial court found Hayes guilty on all four counts but sua sponte “merge[d] judgment as to 

Count II” with Count I “under the actual evidence test.” (Appellant’s App. 193.) The court then 

entered judgments of conviction on Counts I, III, and IV. Finally, the Court sentenced Hayes to 

statutory maximum sentences of 20 years on Count I, eight years on Count III (with four years 

suspended), and one year on Count IV. It imposed the sentences consecutively, for a total 

executed sentence of 29 years (with four years suspended).

Hayes appealed his sentence; he did not (and under Tumulty v. State,

1

could not), appeal 

his convictions. Nevertheless, the Court of Appeals sua sponte vacated Hayes’s conviction for 

 

1 Tumulty v. State held that “a conviction based upon a guilty plea may not be challenged by motion to 

correct errors and direct appeal.” 666 N.E.2d 394, 395 (Ind. 1996) (quoting Weyls v. State, 266 Ind. 301, 
3

Count I (promoting prostitution), concluding that “it was fundamental error for Hayes to be 

convicted pursuant to a guilty plea for promoting prostitution, because there was not a sufficient 

factual basis.” Hayes v. State, 879 N.E.2d 1179, 1184 (Ind. Ct. App. 2008). It then directed the 

trial court on remand to sentence Hayes instead on Count II, the attempted sexual misconduct 

conviction. Id. at 1182. Finally, the Court of Appeals affirmed the trial court’s sentences on 

Count III (eight years with four years suspended) and Count IV (one year), but found that they 

should be served concurrently instead of consecutively. Id. at 1184. 

The State petitioned for transfer, arguing that the Court of Appeals had acted contrary to 

the Tumulty rule when it reversed a conviction on direct appeal due to a guilty plea having an 

inadequate factual basis. The State expressed particular concern that the Court of Appeals had 

raised the issue and disposed of it sua sponte such that the State did not have the opportunity to 

present its analysis of the issue.

We granted transfer, 2008 Ind. LEXIS 557 (Ind. 2008) (table). Ind. Appellate Rule 

58(A). 

Discussion

I

We begin by addressing two rulings by the courts below. First, we agree with the State 

that when the Court of Appeals reversed Hayes’s conviction for promoting prostitution, it acted 

contrary to this Court’s precedent in Tumulty. 666 N.E.2d at 395. By granting transfer, this 

decision of the Court of Appeals is vacated. App. R. 58(A). Second, it does not appear to us that 

it was necessary for the trial court to have merged Hayes’s attempted sexual misconduct 

conviction with his promoting prostitution conviction. See Lee v. State, 816 N.E.2d 35, 40 (Ind. 

 

362 N.E.2d 481, 482 (1977)). The proper avenue for challenging one’s conviction pursuant to a guilty 

plea is through filing a petition for post-conviction relief and presenting evidence at a post-conviction 

proceeding. Tumulty, 666 N.E.2d at 396. 
4

2004).2 However, the State has not objected (at trial, on direct appeal, or on transfer) to Hayes 

standing convicted of Count I (promoting prostitution) but not Count II (attempted sexual 

misconduct). As such, we will review Hayes’s sentencing claim on the basis that he stands 

convicted of Count I (promoting prostitution as a Class B felony), Count III (child exploitation as 

a Class C felony), and Count IV (possession of marijuana as a Class A misdemeanor), just as he 

presented it to the Court of Appeals in the first place. 

II

As described supra, the trial court sentenced Hayes to a total term of 29 years with 25 

years executed and four years suspended. In its sentencing statement, the trial court identified 

three aggravating circumstances: (1) Hayes’s criminal history; (2) its determination that Hayes is 

a “sexual predator toward children”; and (3) its determination that Hayes “poses a significant risk 

of committing similar acts in the future.” (Appellant’s App. 190-92.) The court also identified 

two mitigating circumstances: (1) the fact that Harris entered a guilty plea on all counts; and (2) 

the age of his prior convictions. The trial court found that the aggravating factors outweighed 

the mitigating factors, and imposed the statutory maximum sentences for Counts I, III, and IV. 

(As noted earlier, the court had merged Count II with Count I.) The trial court based its decision 

to issue consecutive sentences on all counts on the same aggravating circumstances that it used 

to enhance Hayes’s sentences, saying that “any aggravating circumstance cited for enhancement 

of the sentence or to run the sentences consecutive is sufficient in and of itself to . . . run the 

sentences consecutive.” Id. at 193. 

The Indiana Constitution provides, “The Supreme Court shall have, in all appeals of 

criminal cases, the power to . . . review and revise the sentence imposed.” Ind. Const. art. VII, § 

4. Pursuant to this authority, we have provided by rule that “[t]he Court may 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.” App. R. 7(B). Hayes has requested that we exercise this authority in his case.

 

2

“[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims 

and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy.” 

Lee, 816 N.E.2d at 40 (quoting Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind. 2002)).
5

Count I (promoting prostitution) is a Class B felony when “the person enticed or 

compelled is under eighteen (18) years of age.” Ind. Code § 35-45-4-4 (2008).3 “A person who 

commits a Class B felony shall be imprisoned for a fixed term of between six (6) and twenty (20) 

years, with the advisory sentence being ten (10) years.” I.C. § 35-50-2-5 (2008). The trial court 

sentenced Hayes to the 20-year statutory maximum for Count I. Hayes argues that he should 

have received the advisory sentence because the crimes for which he was convicted “were not 

committed in a way more egregious than any other way a person would commit these crimes.” 

(Appellant’s Br. at 6.)

Although we abhor Hayes’s behavior, we find that the nature of his offense does not 

warrant an enhanced sentence for a Class B felony. Hayes’s “promotion” of prostitution was 

highly attenuated. As to the attempted sexual misconduct with a minor charge (the merged 

offense), Hayes only attempted to (and did not actually) perform sex acts on one occasion. And 

unlike the perpetrators in a number of such cases, Hayes did not abuse a position of trust.4

Considering the character of the offender, Hayes’s criminal history consists of operating 

a vehicle while intoxicated, illegal possession of alcohol, conversion, felony assault, abduction, 

public indecency (“masturbating in view of female while driving a car”), and possession of 

marijuana. (Appellant’s App. 210-11.) The public indecency conviction is Hayes’s only 

previous sex offense, it did not involve a minor, and it occurred in 1993. Except for the fact that 

the current offense involves possession of marijuana, it is manifestly different in nature and 

gravity from his previous convictions. Though Hayes’s criminal history is not inconsequential, 

 

3 B.W. was 15 years old at time of the crimes. 

4 See e.g., Estes v. State, 827 N.E.2d 27 (Ind. 2005) (presumptive sentences where defendant in position 

of trust molested two minors over a period of years); Golden v. State, 862 N.E.2d 1212 (Ind. Ct. App. 

2007), trans. denied (advisory sentence where step-father molested step-daughter over three-month 

period); Padgett v. State, 875 N.E.2d 310 (Ind. Ct. App. 2007), trans. denied (presumptive sentence where 

close friend of a minor’s parents molested him over a three-year period); Plummer v. State, 851 N.E.2d 

387 (Ind. Ct. App. 2006) (presumptive sentence where father molested two daughters over two-year 

period); Fitzgerald v. State, 805 N.E.2d 857 (Ind. Ct. App. 2004) (presumptive sentence where friend of a 

minor’s parent carried on a consensual sexual relationship with her). 

 
6

we conclude that his convictions are not significant aggravators in relation to this Class B felony 

offense. 

Based on our review, we revise Hayes’s sentence for Count I (promoting prostitution) to 

the advisory sentence of 10 years.

Hayes also seeks revision of his sentences for Count III (child exploitation as a Class C 

felony) and Count IV, possession of marijuana as a Class A misdemeanor. The Court of Appeals 

considered these claims and affirmed the trial court’s sentences on Count III (eight years with 

four years suspended) and Count IV (one year), but found that they should be served 

concurrently instead of consecutively. Hayes, 879 N.E.2d at 1184. We adopt the decision of the 

Court of Appeals on this point. App. R. 58(A)(1).

Hayes’s final contention is that “the trial court abused its discretion in ordering 

consecutive sentencing on top of enhanced sentences.” (Appellant’s Br. at 9.) Our review of the 

record and of the trial court’s sentencing statement does not show that the trial court abused its 

discretion when it decided to impose consecutive sentences on all counts. 

Conclusion

Having previously granted transfer, App. R. 58(A), we remand this case to the trial court 

with instructions to issue an amended sentencing order and to issue or make any other documents 

or docket entries necessary to impose a revised sentence, without necessity of a hearing, of 10 

years on Count I; eight years (four suspended) on Count III; and one year on Count IV. The 

sentence on Count IV shall be served concurrently with the sentence on Count III; and the 

concurrent sentences on Counts III and IV shall be served consecutive to the sentence on Count 

I.

Shepard, C.J., and Boehm, and Rucker, JJ., concur.

Dickson, J., dissents without separate opinion.