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FILED
FOR PUBLICATION
Nov 15 2011, 8:48 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: STACY R. ULIANA Bargersville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JESSE PUCKETT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.

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No. 90A02-1104-CR-369

APPEAL FROM THE WELLS CIRCUIT COURT The Honorable James Heimann, Special Judge Cause No. 90C01-0410-FB-7

November 15, 2011 OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Jesse Puckett appeals the trial court's sentencing decision after he admitted to violating his probation for Class C felony child molesting. We reverse and remand. Issue The restated issue we address is whether the trial court abused its discretion in requiring Puckett to serve his entire previously-suspended four-year sentence for violating his probation. Facts On October 14, 2004, the State charged Puckett with two counts of Class B felony child molesting. The information alleged that on two separate dates in April 2004 in Wells County, Puckett had sexual intercourse with R.S. In April 2004, Puckett was eighteen, and R.S. was twelve. In investigating the case, several witnesses came forward to claim that they saw R.S. at a party where she and Puckett allegedly had sex in April 2004, and that R.S. appeared to be at least sixteen years old. Puckett maintained that R.S. had told him she was sixteen or seventeen, and R.S. admitted in a deposition that she might have told Puckett she was fourteen, fifteen, sixteen, or seventeen. On January 27, 2005, the State and Puckett reached a plea agreement whereby he would plead guilty to one count of Class C felony child molesting and the State would dismiss the two Class B felony charges. The agreement further specified that Puckett would receive an entirely suspended sentence, with the length to be determined by the trial court. On March 16, 2005, Puckett pled guilty in open court, providing as a factual 2

basis that he had fondled R.S. with intent to arouse his or her sexual desires. The trial court took the plea under advisement. On May 16, 2005, the trial court accepted the plea agreement and imposed a sentence of four years, suspended to probation, which corresponded with the recommendation of the probation officer who had prepared the presentence report. On January 26, 2007, the State filed a petition alleging Puckett had violated his probation by failing to notify the probation department of an intimate relationship, having contact with a person under the age of eighteen, and using a computer with internet access. On February 23, 2007, the State amended this petition to allege that Puckett had been charged in Grant County with Class D felony failure to register as a sex offender. On August 8, 2008, the State filed a second amended petition further alleging that Puckett had used alcohol, slept in a place other than his residence without prior approval, and had been present at a park or school. On August 29, 2008, the State filed a third amended petition further alleging that Puckett had traveled alone after 10:00 p.m. without prior approval, had been present at a park or school, and had been charged in Huntington County with Class A misdemeanor check deception for writing a bad check for $25.60. On October 24, 2008, before a hearing was held on any of the probation violation petitions, Puckett filed a petition for post-conviction relief, alleging that his plea was not knowingly or intelligently entered into or that he received ineffective assistance of counsel in receiving the advice to plead guilty. On December 22, 2009, the post-

conviction court denied Puckett's petition. Puckett did not appeal this denial. 3

On August 9, 2010, Puckett pled guilty in Grant County to one count of Class D felony failure to register as a sex offender. The time period in which Puckett had failed to register was late 2006 to early 2007. Puckett received a sentence of two years, with one and a half years suspended and six months executed. On April 8, 2011, the trial court held a hearing on the State's third amended petition to revoke probation. By this date, the trial judge who had originally sentenced Puckett was no longer on the bench and the prosecutor at the time of original sentencing was now the trial judge. Thus, a special judge was appointed to hear the probation revocation matter. At the beginning of the hearing Puckett indicated that he would admit to violating his probation by committing the crime of Class D felony failure to register as a sex offender and the State agreed to dismiss, and not present evidence on, any of the other probation violation allegations. At the hearing it was revealed that Puckett was now married and had a newborn child. Puckett also presented several letters from friends, family, his wife, and

employers, attesting to his positive character. Puckett himself also wrote a lengthy letter, noting among other things the close relationship he enjoyed with his younger brothers. The State presented no evidence but argued that Puckett's conviction for failing to register as a sex offender warranted requiring him to serve the full four years of his previously suspended sentence. Before imposing sentence on Puckett, the trial court stated that it had reviewed the files in the case, and then made the following comments: 4

The evidence clearly shows that the Defendant had sex with a twelve year old, with a twelve year old. We can say okay that she had told some other age or something like that, but we also know that he was prepared, he had a prophylactic with him during the course of the exchange, he and another friend brought the alcohol, we can go through that information and see how horrible that crime was and we can in fact look at friends and relatives and see maybe how bad the girl was, but there is even an exclusionary rule in regards to that, that the jury couldn't even hear much of the information that maybe the family thinks is of great concern because the facts remain he was 18 years old and the child was 12 years old. Now it's not a question even if she would have asked to have intercourse the crime is there and once the crime is there a life is affected. So the crime is absolutely unequivocally without any hesitation in my mind a horrendous crime . . . . We have letter after letter, comment after comment, in regards to the performance at work and what a great guy the Defendant is and certainly in the areas that were mentioned there it seems like he has excelled and excelled quite well. I first started with Exhibit A and Exhibit A is the statement of the Defendant himself you know he just said he just wanted to have fun and never thought of things first and other things came up and one of the things that really surprised me was one of the things that I thought was almost horrible he said his brothers looked up to him and this is the example he gave to his brothers, that was a little scary, is his brothers going to grow up and have intercourse with a sixth grader. The net result is that the sentence was unbelievably lenient in my estimation. I don't know, I have been a lawyer for forty some years and I'm not, I don't remember any cases that I was in touch with that that ever occurred, a completely suspended sentence for an 18 year old having sex with a sixth grader. . . . Of course the investigation that accompanied the Information that I had indicated that he was staying at a house and the lady of the house apparently was in a van and in the van was her fourteen year old daughter. That was the information in the file. The police officers would ask him why do you have all these kids toys and the explanation was "I don't know, I didn't have an answer." You know the thing that when the Court said you are under an order to report as a sex offender 5

it's no joke, it's emphatic, it is absolutely unequivocal, everybody in that neighborhood must know that there is a sex offender and look out and be careful. I think there are three or four fairly close to my house, I mean I have looked at the picture of each individual that I think I am aware of who is in my neighborhood and that's accessible to everybody on the internet, you just punch the button and you look at the picture, you find out the information about the individual, you know the exact address and then you google it and look at his house so that you can figure out what his house looks like so you can advise your kids if necessary. So the offense itself maybe is not a sex offense, but it is absolutely integral with the crime itself. . . . So now you see that that was done that we have all these other allegations that are being dismissed, but you can't wipe all those things out of your head . . . . So the Court is going to revoke the entire sentence and sentence to you four years of incarceration because I am doing that I would ask you to stay in the Courtroom. I have considered the letters that say very complimentary things, but the very essence of the primary thing that we want to do is monitor you and you failed to do so and therefore I think that you should serve your time. Tr. pp. 15-18.1 After this statement, defense counsel objected that the trial court had improperly relied upon a probable cause affidavit from Grant County and probation violation allegations that the State had agreed to dismiss and not present evidence on. The trial court responded, Okay, let me state for the record that I believe that solely upon the violation itself as alleged is solely justifying the sentence that I imposed and so even though I mentioned those other things even without those things the Court feels with

In this case, separate transcripts were prepared for Puckett's guilty plea, original sentencing, and probation revocation proceedings. Throughout this opinion we will only quote from and cite to the probation revocation transcript.
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absolutely [sic] certainty that the sentence should be and in fact should be served immediately. Id. at 19. Puckett now appeals. Analysis Puckett solely challenges the sentenced imposed by the trial court after he admitted to violating his probation. If a defendant is found to have violated his or her probation, a trial court may (1) continue the defendant on probation; (2) extend the probationary period for not more than one year beyond the original period; and/or (3) order all or part of a previously suspended sentence to be executed. Ind. Code

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