Rape convictions affirmed but probation condition ruled unconstitutional

An appeals court Monday upheld an aggregate 24-year sentence for a man convicted of three counts of rape, but it also found a condition of probation that barred him from visiting “businesses that sell sexual devices or aids” was unconstitutionally broad.

A Marion Superior jury convicted Amjad Nabil Salhab as charged with three counts of Level 3 felony rape, as well as Level 5 felony counts of child seduction and criminal confinement and Level 6 felony child seduction. At sentencing, the trial court vacated the Level 5 felony counts over concerns about double jeopardy violations.

Salhab was sentenced to eight years for each of the rape convictions, with two years suspended from each of those individual sentences, and to one year for his Level 6 felony child seduction conviction. He was ordered to serve his three rape sentences consecutively because the trial court believed the evidence showed each charge constituted a distinct act, and there was a “significant” aggravating circumstance of his having care, custody and control over the victim. Salhab was also sentenced to three years’ probation.

The Indiana Court of Appeals affirmed the sentence Monday in Amjad Salhab v. State of Indiana, 19A-CR-3059.

“Salhab essentially argues that the trial court’s imposition of below-advisory individual sentences shows that it found that the mitigators outweighed the aggravators, and, thus, that it was an abuse of the trial court’s discretion to impose consecutive sentences. However, Salhab’s argument is based on an inaccurate premise, as the trial court did not find that the mitigators outweighed the aggravators in his case; it made no statement regarding its balancing of the aggravators and mitigators,” Judge Patricia Riley wrote for the court.

“In addition, after the General Assembly adopted our present advisory sentencing scheme in 2005, a trial court is no longer obligated to identify and weigh the aggravating and mitigating circumstances upon rendering its sentence,” the panel noted, citing to Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

However, the panel did reverse a condition of Salhab’s probation barring him from “businesses that sell sexual devices or aids.” The panel noted that identical parole and probation conditions were struck as unconstitutionally overbroad in Bleeke v. Lemmon, 6 N.E.3d 907, 921 n.8 (Ind. 2014); Custance v. State, 128 N.E.3d 8, 12 (Ind. Ct. App. 2019);  and Collins v. State, 911 N.E.2d 700, 714 (Ind. Ct. App. 2009), trans. denied.