ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Joel M. Schumm Steve Carter 

Indianapolis, Indiana Attorney General of Indiana 

 

 Cynthia L. Ploughe 

 Deputy Attorney General 

 Indianapolis, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 49S04-0701-CR-32 

MORRIS WINDHORST, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Marion Superior Court, Criminal Division 6, No. 49G06-0602-FC-031047 

The Honorable Jane Magnus Stinson, Judge 

The Honorable Jeffrey Marchal, Commissioner 

_________________________________ 

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0605-CR-260 

_________________________________ 

June 26, 2007 

Rucker, Justice. 
Background 

After sending nude pictures of himself and engaging in sexually explicit communication 

over the Internet with what he thought was a fourteen-year-old child, forty-four-year-old Morris 

Windhorst was apprehended in an undercover on-line sting operation. He was arrested and 

ultimately charged with one count of child solicitation as a Class C felony1 and two counts of 

dissemination of matters harmful to minors, Class D felonies.2 Under terms of an agreement he 

pleaded guilty to child solicitation and in exchange the State dismissed the remaining charges. 

The plea agreement provided in pertinent part that the sentence would be capped at two years 

and that “[t]he court may impose an additional period of time beyond this two (2) years and 

require the Defendant to serve a portion of all of that suspended time on probation.” App. at 22. 

At the sentencing hearing Windhorst asked the trial court to consider the following 

mitigating factors: (1) that he had pleaded guilty and accepted responsibility for his actions, (2) 

that he was remorseful, (3) that he had no history of criminal offenses, (4) that he had been 

steadily employed for most of his life, (5) that he had served in the military, (6) that he had 

cooperated with police by giving a statement and consenting to a search of his home and 

computer, (7) that he had been suffering from depression, and (8) that he had participated in 

programs while awaiting trial in the county jail. Tr. at 28-29; Br. of Appellant at 7. 

After listening to the testimony of two defense witnesses and entertaining arguments of 

counsel, the trial court imposed the four-year advisory sentence for a Class C felony offense, see

Ind. Code § 35-50-2-6(a), and suspended two years to probation. The trial court mentioned 

neither aggravating nor mitigating factors. 

Windhorst appealed contending that his sentence was inappropriate in light of the nature 

of the offense and his character. Specifically he argued that an advisory sentence “is 

inappropriate in a case that presents no aggravating circumstances but several weighty mitigating 

 

1

 I.C. § 35-42-4-6. 

2

 I.C. § 35-49-3-3. 

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circumstances.” Br. of Appellant at 4. Engaging in a straightforward review of Windhorst’s 

sentence under Indiana Appellate Rule 7(B) the Court of Appeals, in a divided opinion, rejected 

Windhorst’s argument and affirmed the judgment of the trial court. Windhorst v. State, 858 

N.E.2d 676 (Ind. Ct. App. 2006). On this issue we summarily affirm the Court of Appeals’ 

opinion. See Ind. Appellate Rule 58(A)(2). 

However, in a lengthy footnote the majority discussed McMahon v. State, 856 N.E.2d 

743 (Ind. Ct. App. 2006), trans. not sought, an opinion by another panel of the Court of Appeals 

which held in part, “‘we presume that by keeping Indiana Code § 35-38-1-3 in place, [requiring a 

sentencing statement if the court finds aggravating or mitigating circumstances] the legislature 

intended to require a sentencing statement anytime the trial court imposes a sentence other than 

the advisory sentence under the new statutes.’” Windhorst, 858 N.E.2d at 678 n.2 (quoting 

McMahon, 856 N.E.2d at 749 (emphasis in original)). The majority criticized McMahon,

disagreeing with its holding and analysis. According to the majority, the McMahon approach 

“will resurrect the very Sixth Amendment problems that the legislature sought to eliminate with 

its amendment of Indiana’s sentencing scheme.” Windhorst, 858 N.E.2d at 678 n.2. Judge 

Vaidik, who authored McMahon, wrote separately and advanced additional arguments in support 

of McMahon’s validity. Id. at 679-681 (Vaidik, J., concurring in result). 

On transfer Windhorst cites Judge Vaidik’s dissent and argues that trial courts should 

continue the practice of making sentencing statements and finding aggravating and mitigating 

circumstances. He also contends his sentence is inappropriate in light of the nature of the 

offense and his character. 

Discussion 

In an opinion handed down today we noted that in the aftermath of the 2005 amendments 

to Indiana’s criminal sentencing statutes, there has been a lack of consensus on the Court of 

Appeals as to whether and to what extent trial judges are now required to make sentencing 

statements and whether any such statements must include findings of aggravating and mitigating 

factors. Addressing this issue we concluded: 

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[C]onstruing what we believe is a legislative intent to retain the traditional 

significance of sentencing statements we conclude that under the new statutory 

regime Indiana trial courts are required to enter sentencing statements whenever 

imposing sentence for a felony offense. In order to facilitate its underlying goals, 

the statement must include a reasonably detailed recitation of the trial court’s 

reasons for imposing a particular sentence. If the recitation includes a finding of 

aggravating or mitigating circumstances, then the statement must identify all 

significant mitigating and aggravating circumstances and explain why each 

circumstance has been determined to be mitigating or aggravating. 

Anglemyer v. State, No. 43S05-0606-CR-230, ___ N.E.2d ___, ___, slip op. at 9 (Ind. 

June 26, 2007) (emphasis added) (internal citation omitted). 

 Obviously not having the benefit of our ruling in Anglemyer, the trial court in this case 

did not enter a sentencing statement. Rather, adhering to long-standing precedent, which 

required no such statement when imposing the presumptive sentence, the trial court simply 

sentenced Windhorst to the advisory term without explaining its reasons. See Gardner v. State, 

270 Ind. 627, 388 N.E.2d 513, 517 (Ind. 1979) (“When a court imposes the basic sentence 

embodied within a particular criminal statute, this Court will presume that the mandatory 

considerations were made by the judge, even if the record lacks specificity in enumerating those 

considerations.”); Jones v. State, 698 N.E.2d 289, 290 (Ind. 1998) (“[A] sentencing judge must 

articulate her reasoning only when she deviates from the statutory presumptive sentence.”).3 

 We also determined today that we continue to review a trial court’s sentencing decision 

for abuse of discretion. “One way in which a trial court may abuse its discretion is failing to 

enter a sentencing statement at all.” Anglemyer, ___ N.E.2d at ___, slip. op. at 10. Here, even if 

the trial court were on notice of its obligation to enter a sentencing statement – which it was not 

– and simply failed to do so, we nonetheless would not be inclined to remand this cause for 

further consideration. And this is so because we have long held that where the trial court erred in 

sentencing a defendant, there are several options for the appellate court. “Without a trial court 

sentencing order that meets the requirements of the law,” we have the option to remand to the 

 

3

 Even in McMahon the court held that under the amended statutory regime a sentencing statement was 

necessary “anytime the trial court imposes a sentence other than the advisory sentence.” McMahon, 856 

N.E.2d at 749. 

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trial court for a clarification or new sentencing determination. Brown v. State, 783 N.E.2d 1121, 

1129 (Ind. 2003). Additionally we may exercise our authority to review and revise the sentence. 

Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005). In this case the Court of Appeals 

exercised this option and reviewed Windhorst’s sentence under Indiana Appellate Rule 7(B) and 

declined to revise it. As mentioned earlier in the opinion, we summarily affirm that portion of 

the Court of Appeals’ opinion. 

Conclusion 

 The judgment of the trial court is affirmed. 

 

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur. 

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