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 FILED
Indiana Supreme Court May 19 2009, 9:23 am
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
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
_________________________________
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.
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,
2
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.
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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)).
4
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).
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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.
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