VIERLING v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] After pleading guilty to one count of Level 5 felony child exploitation, Ryan Thomas Vierling was sentenced to three years of incarceration. Vierling contends on appeal that his sentence, specifically his placement in the Department of Correction (“DOC”), is inappropriate in light of the nature of his offense and his character. We affirm.

Facts and Procedural History

[2] In March of 2023, Vierling's stepdaughter (“Victim 1”) reported to a counselor at the Shelbyville Middle School that Vierling had recorded her while she was in the shower. On November 2, 2023, the State charged Vierling with seven counts of Level 4 felony child exploitation. On September 12, 2024, Vierling pled guilty to one count of Level 5 felony child exploitation. In exchange for Vierling's guilty plea, the State agreed to dismiss the remaining charges. Per the parties’ agreement, sentencing was left to the discretion of the trial court.

[3] During the guilty plea hearing, Vierling admitted that on August 1, 2021, he had “knowingly record[ed] digitized images of Victim 1, a child under 18 years old, naked in the shower, including images of Victim 1's uncovered genitals and breasts[.]” Tr. Vol. II p. 9. The trial court accepted Vierling's guilty plea. At sentencing, the State argued that Vierling had

pled guilty to what was tantamount to creating child pornography by taking a picture of his stepdaughter naked in the shower. I think that this behavior is a violation of that victim's trust, it's a violation of his family's trust, and I believe that for the safety of the community, he needs to be sent to the [DOC].

Tr. Vol. II p. 19. For his part, Vierling requested “a below advisory sentence suspended, or in the alternative, executed as a commitment to home detention[,]” arguing that he was otherwise of good character, his family relied on him, and only had one prior misdemeanor conviction. Tr. Vol. II p. 22.

[4] In sentencing Vierling, the trial court found

that there is a moderate risk that [Vierling] will commit another crime. That the nature and circumstances of this offense are very serious. It happened over a period of time. [Vierling] does have a prior criminal history of one misdemeanor conviction. [Vierling] does have some mental health issues. There was no victim under 12 or over the age of 65. [Vierling] did not violate a protective order.

[Vierling's] criminal history is somewhat of an aggravator, although it's fairly minimal. As [the d]efense noted, it's one conviction a number of years ago. The most significant aggravating factor is that Mr. Vierling had the care, custody, and control over this minor victim and violated that trust, according to the probable cause affidavit, repeatedly.

As far as mitigating factors, he pled guilty. He did receive a substantial benefit for that plea, so the Court would assign that minimal risk or minimal weight. The Court certainly recognizes that this is going to cause a hardship on Mr. Vierling's family, but, you know, Mr. Vierling was in control of that. Honestly, what breaks my heart the most is in that victim statement, that this, you know, victim feels responsible for Mr. Vierling's actions in any way. I find that the -- I find that ultimately the factors balance each other out and an advisory sentence is appropriate.

Tr. Vol. II p. 22. The trial court imposed a three-year executed sentence.

Discussion and Decision

[5] Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal quotation omitted), trans. denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[6] Vierling pled guilty to Level 5 felony child exploitation. “A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-2-6(b). The advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). “We are unlikely to consider an advisory sentence inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. “[T]he defendant bears a particularly heavy burden in persuading us that his sentence is inappropriate when the trial court imposes the advisory sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[7] In challenging the appropriateness of his sentence, Vierling “does not dispute that the advisory sentence of three years was an appropriate sentence.” Appellant's Br. p. 8. Vierling argues, however, that requiring him “to serve his sentence in prison, as opposed to entering community corrections so he could continue caring for his family, was inappropriate, particularly considering [his] character.” Appellant's Br. p. 8. The Indiana Supreme Court has previously held that “[t]he place that a sentence is to be served is an appropriate focus for application of our review and revise authority.” Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).

[8] We agree with the trial court that the nature of Vierling's offense was “very serious.” Tr. Vol. II p. 22. Vierling was accused of committing numerous acts of recording Victim 1 naked in the shower over the course of multiple years and was charged with seven counts of Level 4 felony child exploitation. In exchange for the dismissal of these counts, Vierling agreed to plead guilty to one count of Level 5 felony child exploitation, thereby reducing his potential criminal exposure significantly. Vierling's actions were only discovered after Victim 1 had told a school counselor about his actions and indicated that she was scared to go home. At sentencing, the State presented a statement from Victim 1 in which she indicated that she felt responsible for splitting up her family. Vierling violated a position of trust, the result of which has led to the continued victimization of Victim 1. See generally, Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005) (providing that the trial court did not err in finding the fact that the appellant had violated a position of trust by molesting his stepdaughter to be an aggravating factor at sentencing, noting that the “sad fact that adults in positions of trust are often the perpetrators of” crimes against child victims does not make the factor any less aggravating), trans. denied.

[9] As for Vierling's character, the record reveals that Vierling's criminal history was minimal. His criminal actions at issue in the instant case, however, were egregious. While Vierling admitted to having recorded Victim 1 in the shower, he claimed that he “did not know” why he had done so, indicating that the fact that he “view[ed] pornography excessively” may have “contributed to his actions.” Appellant's App. Vol. II p. 69. Vierling's actions reflect poorly on his character. In addition, we note that while Vierling has expressed a desire to provide for his children and an elderly grandmother, he has not been able to financially provide for himself, let alone others, without the assistance of family. Vierling has not been employed since 2020, beyond doing “some ‘Door Dashing’ on and off when he need[ed] extra money.” Appellant's App. Vol. II p. 68.

[10] Vierling points to his remorse and his voluntary participation in counseling as positive character traits. Despite his stated remorse, Vierling does not appear to fully appreciate the substantial harm that he has done to Victim 1. Also, Vierling's statement of remorse at sentencing does not alter the fact that he had initially attempted to downplay the severity and frequency of his criminal acts involving Victim 1. Further, while Vierling is perhaps to be commended for participating in therapy voluntarily, we do not believe that this renders an executed sentence inappropriate given the egregious nature of his criminal acts. Considering the egregious nature of Vierling's criminal acts coupled with his poor character, we conclude that Vierling has failed to meet the “particularly heavy burden” of convincing us that it was inappropriate for the trial court to order that all of Vierling's three-year advisory sentence be served in the DOC. See Fernbach, 954 N.E.2d at 1089.

[11] The judgment of the trial court is affirmed.

Bradford, Judge.

May, J., and Mathias, J., concur.