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A man’s possession of six child pornography images on one date constituted a single episode of criminal conduct, the Court of Appeals of Indiana ruled Tuesday in reversing a trial court’s sentence and remanding the case for resentencing.
According to court records, on Nov. 18, 2022, the state charged Wiley Jones with six counts of possession of child pornography as level 5 felonies.
The court appointed counsel for Jones.
On Feb. 1, 2023, the parties filed a plea agreement pursuant to which Jones agreed to plead guilty as charged and indicated that sentencing was “open.”
That same day, the Floyd Superior Court held a hearing. The court explained Jones’ rights and stated: “Also understand that by entering a plea of guilt, the Court will proceed with judgment of guilt and sentence you without a trial. You understand that?”
Jones answered affirmatively.
The court explained to Jones that a level 5 felony carries a penalty of one to six years with an advisory sentence of three years.
When the court asked for a factual basis, Jones acknowledged that he possessed or accessed six images on Nov. 17, 2022, which depicted a child less than 12 years old engaged in sexual conduct.
The court indicated that the plea agreement did not say whether the sentences could be served consecutively and asked if they could be “run consecutively.”
After some discussion, the court stated: “I have to ask you because that is an open thing, that it can be run consecutively. I’m not saying that’s what’ll happen, I’m just saying that [] possibility exists. Do you understand that?”
After conferring with his counsel, Jones answered: “Okay. Sure. Sure. Sure.”
On March 27, 2023, the court sentenced Jones to consecutive sentences of four years on each conviction with four years executed for Counts I through V and four years suspended for Count VI for an aggregate sentence of 24 years with 20 years executed and four years suspended.
Jones appealed, arguing that the sentencing procedure violated his right to understand the possible sentencing range guaranteed by Indiana Code § 35-35-1-2(a)(3) and Article 1, § 13 of the Indiana Constitution.
He contended the “sentencing maximum was not explained” and the trial court mentioned at one point that “the maximum sentence was seven years” and also stated that “the maximum sentence was thirty-six years.”
The Court of Appeals reversed the trial court’s sentence and remanded with instructions to resentence Jones consistent with the appellate court’s decision that the six counts represented a single episode of criminal conduct.
Judge Elaine Brown wrote the opinion for the appellate court.
Brown wrote that because Jones pleaded guilty, he cannot challenge the propriety of his convictions on direct appeal.
“We conclude that his argument based on Article 1, Section 13 and his contention that he was uninformed constitutes a challenge to the propriety of his convictions on direct appeal. We do not consider Jones’s arguments to the extent they relate to a challenge of his convictions,” Brown wrote.
At the guilty plea hearing, when the court asked for a factual basis, Jones acknowledged that he possessed or accessed six images on Nov.17, 2022, Brown noted.
No other date was mentioned during the establishment of the factual basis.
Brown wrote that, to the extent (Indiana State Police) Detective (Scott) Stewart testified that hundreds of videos were obtained from Jones’ residence and the trial court observed that thousands of images and videos were involved, the appellate court noted that Ind. Code § 35-50-1-2(b) defines an “episode of criminal conduct” as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.”
“Based upon the record, we conclude that Counts I through VI constitute a single episode of criminal conduct and are subject to the limitation in Ind. Code § 35-50-1-2(d) providing that the total of the consecutive terms of imprisonment to which a defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed seven years if the most serious crime for which a defendant is sentenced is a level 5 felony,” Brown wrote, citing Yost v. State, 150 N.E.3d 610, 614-615 (Ind. Ct. App. 2020).
Judges Terry Crone and Paul Felix concurred.
The case is Wiley R. Jones v. State of Indiana, 23A-CR-739.
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