A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE 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

M ORRIS W INDHORST , Appellant (Defendant below),

v.

S TATE OF I NDIANA , 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 Indian a 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 f ourteen-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 felony 1 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 th at the sentence would be capped at two years and that “[t]he court may impose an additiona l 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 th e trial court to consider the following mitigating factors: (1) that he had pleaded gu ilty and accepted responsibility for his actions, (2) that he was remorseful, (3) that he had no histor y 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 a nd consenting to a search of his home and computer, (7) that he had been suffering from de pression, 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 defens e witnesses and entertaining arguments of counsel, the trial court imposed the four-year a dvisory 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.

2circumstances.” Br. of Appellant at 4. Enga ging in a straightforward review of Windhorst’s sentence under Indiana Appellate Rule 7(B) the C ourt of Appeals, in a divided opinion, rejected Windhorst’s argument and affirmed th e 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 keepi ng Indiana Code § 35-38-1-3 in place, [requiring a sentencing statement if the court finds aggrava ting or mitigating circumstances] the legislature intended to require a sentencing statement anytim e 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 stat ements 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 c onsensus on the Court of Appeals as to whether and to what extent tr ial 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:

3[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. Rath er, adhering to long-standing precedent, which required no such statement when imposing the pr esumptive 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 tr ial 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 woul d not be inclined to remand this cause for
further consideration. And this is so because we ha ve long held that where the trial court erred in sentencing a defendant, there are se veral 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.

4trial court for a clarification or new sentencing determination. Brown v. State , 783 N.E.2d 1121, 1129 (Ind. 2003). Additionally we may exercise our au thority to review and revise the sentence.
Williams v. State , 827 N.E.2d 1127, 1128 (Ind. 2005). In th is 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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