Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 1 of 4

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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

Douglas S. Walton

Walton Law Office

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

David A. Penfold,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 29, 2016

Court of Appeals Case No.

63A01-1606-CR-1436

Appeal from the Pike Circuit Court

The Honorable Jeffrey L. 

Biesterveld, Judge

Trial Court Cause No.

63C01-1408-F4-374

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 2 of 4

Statement of the Case

[1] David A. Penfold appeals his sentence for child solicitation, as a Level 4 felony, 

following his guilty plea. Penfold raises a single issue for our review, namely, 

whether the advisory sentence is inappropriate in light of the nature of Penfold’s

offense and his character. We affirm.

Facts and Procedural History

[2] In May of 2014, Penfold, a twenty-three-year-old male who lived in Hebron, 

Indiana, sent a number of sexually explicit messages over the internet to a 

person whom he believed to be a fourteen-year-old female. That person was 

really an adult “decoy” associated with “the Perverted Justice Organization.” 

Appellant’s App. Vol. II at 20. At some point, the decoy informed local police

officers about Penfold’s attempted solicitations, and they monitored and 

recorded Penfold’s communications. After three months, in August Penfold 

arranged to meet with the decoy. Penfold arrived at a predetermined location 

at a scheduled time, and local police arrested him.

[3] The State charged Penfold with two counts of child solicitation, as Level 4 

felonies. On September 14, 2015, Penfold pleaded guilty, pursuant to a written 

plea agreement, to one of the charges and, in exchange, the State dismissed the 

other charge. Pursuant to his plea agreement, Penfold agreed to leave 

sentencing open to the trial court’s discretion so long as the court did not 

sentence him to more than seven years executed in the Department of 

Correction. 
Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 3 of 4

[4] The court accepted Penfold’s plea agreement and held a sentencing hearing. 

Following that hearing, the court found as an aggravator that Penfold was a 

“high risk to reoffend.”

1

 Appellant’s App. Vol. III at 36. As mitigators, the 

court found that Penfold “has no history of delinquency or criminal activity” 

and that he “has accepted responsibility for his actions and has plead[ed] guilty 

and saved the Court time and resources.” Id. The court concluded that the 

aggravating and mitigating factors were in equipoise and, as such, ordered 

Penfold to serve the advisory sentence of six years. This appeal ensued.

Discussion and Decision

[5] Penfold contends that his six-year sentence is inappropriate in light of the 

nature of the offense and his character. As we have explained:

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 inappropriate in light of the nature of the offense and 

the character of the offender.” We assess the trial court’s 

recognition or nonrecognition 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 “leaven 

the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). A defendant must persuade the appellate court that his or 

 

1

 In his brief, Penfold asserts that “the only apparent support for that finding is that Mr. Penfold committed a 

sexual offense” and that the trial court “assume[d] a high risk to re-offend . . . simply because a sexual offense 

is at issue.” Appellant’s Br. at 8-9. Penfold’s assertions are plainly contrary to the record. The trial court 

expressly relied on the Indiana Risk Assessment System’s evaluation of Penfold, which unambiguously 

labeled him “in the HIGH risk category to reoffend.” Appellant’s App. Vol. III at 46.
Court of Appeals of Indiana | Memorandum Decision 63A01-1606-CR-1436 | December 29, 2016 Page 4 of 4

her sentence has met the inappropriateness standard of review. 

Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).

Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).

[6] On appeal, Penfold asserts that the advisory sentence is inappropriate in light of 

the nature of the offense because “[t]here was no victim in this case.” 

Appellant’s Br. at 9. And Penfold asserts that his sentence is inappropriate in 

light of his character based on his lack of criminal history, his evidence of 

mental health issues, and his evidence that there is a low likelihood that he will 

reoffend. We cannot agree.

[7] Regarding the nature of the offense, Penfold spent three months attempting to 

solicit a fourteen-year-old female to engage him in various sexual acts. 

Penfold’s messages were explicit and detailed, and it is not to his benefit that he 

was unable to complete his attempted crime simply because the person with 

whom he was communicating was not who he thought she was. Regarding his 

character, the record demonstrates that he is a high risk to reoffend. Further, 

the trial court has considered and rejected Penfold’s evidentiary arguments, and 

we will not reconsider the trial court’s assessment on appeal. We cannot say 

that the advisory sentence of six years is inappropriate in light of the nature of 

Penfold’s offense and his character and, thus, we affirm his sentence.

[8] Affirmed. 

Bailey, J., and May, J., concur.