David Glenn Porter, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] After David Glenn Porter pleaded guilty to Level 5 felony failure to register as a sex or violent offender,¹ the trial court sentenced him to the advisory term of three years, all executed in the Indiana Department of Correction (“DOC”). He presents the sole issue of: Is his sentence inappropriate in light of the nature of the offense and his character? We affirm.

Facts and Procedural History

[2] On November 30, 2023, Porter was released from the DOC after serving time in another case and was dropped off in Terre Haute. Due to prior convictions, he was required to register as a sex offender.² Nearly a year later, the Vigo County Sheriff's Office learned Porter was residing in Terre Haute but still had not registered. The State charged Porter with failure to register, elevated to a Level 5 felony due to prior convictions for failing to register.

[3] After his arrest, Porter was released on his own recognizance under the condition he report to pretrial services. He failed to report, and the State filed a pretrial violation notice. The trial court ordered him to appear for a hearing on the alleged violation, but he did not appear in court. He was arrested on a bench warrant and, after a hearing, again released on his own recognizance. He reported to pretrial services and signed a pretrial services agreement. But Porter failed to appear for a subsequent court hearing, was again arrested on a bench warrant, and thereafter remained in custody.

[4] On September 15, 2025, Porter pleaded guilty as charged. At the time of the sentencing hearing, he was seventy-two years old. Porter argued for a sentence consisting of time served (310 days) and four years of probation, based on his age, health problems (including glaucoma, an enlarged prostate, bladder pain, history of high blood pressure, and chronic obstructive pulmonary disease), and the fact he took responsibility for the crime and pleaded guilty without the benefit of a plea agreement. The State argued for an aggravated sentence because of Porter's criminal history and noncompliance with pretrial release conditions. The trial court found as aggravating factors Porter's lengthy criminal history and violation of pretrial supervision. The court found as mitigators Porter's age and his acceptance of responsibility. The trial court sentenced Porter to the advisory sentence of three years, all executed in the DOC.

Porter's advisory sentence is not inappropriate.

[5] Porter asks us to revise his sentence. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we 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.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[6] “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are “separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016)). “[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127.

[7] The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024).

[8] The sentencing range for a Level 5 felony is from one and six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b) (2014). Because our legislature has selected the advisory sentence as the “starting point” for “an appropriate sentence for the crime committed,” the defendant bears a “particularly heavy burden” when the trial court imposes the advisory sentence. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[9] As to the nature of the offense, there is nothing remarkable about the circumstances here, except that this offense is Porter's sixth conviction for failure to register a sex or violent offender. Porter knew he was required to register but did not.

[10] As to his character, Porter has an extensive criminal history spanning over thirty years. Prior to the instant case, he accrued eleven felony convictions for the following: child molesting, battery by bodily waste, three counts of battery resulting in bodily injury, sexual battery, and five counts of failure to register. His record includes nine misdemeanor convictions. Of the fourteen times Porter was placed on probation, he was unsatisfactorily discharged eleven times. Over the years, Porter has shown a pattern of disregard for the conditions of alternatives to incarceration, including by failing to report to pretrial release while this case was pending. Nothing about his character and criminal history indicates an advisory sentence is too severe.

[11] Still, Porter argues the “confluence of [his] advanced age, serious health problems, acceptance of responsibility, and the passive nature of his purely administrative violation make the advisory sentence disproportionate and establish this case as an outlier warranting sentence revision.” Appellant's Br. at 6. As our Supreme Court has observed, the sex offender registry requirement serves punitive purposes while also advancing “a legitimate purpose of public safety.” Wallace v. State, 905 N.E.2d 371, 383 (Ind. 2009). By failing to register, Porter undercuts the legislative goal of protecting the public from sex offenders. As for his age and acceptance of responsibility, the trial court took these mitigators into consideration when fashioning his sentence. And there is no evidence before us he cannot receive treatment for his medical conditions while in the DOC. In short, Porter has not convinced us his case is an exceptional one warranting sentence revision.

Conclusion

[12] Porter's advisory sentence was not inappropriate.

[13] Affirmed.

FOOTNOTES

1.   Ind. Code § 11-8-8-17(a)(1) & (b)(1) (2020).

2.   According to the presentence investigation report, Porter was initially designated a sexually violent predator with a lifetime registry requirement after he was convicted in 2009 of Class D felony sexual battery. After the registration statute was amended, his designation was lowered to sex offender, but the lifetime registry requirement remained because he also had a 1992 conviction for Class B felony child molesting. See Appellant's App. Vol. 2 at 62.

Kenworthy, Judge.

Bradford, J., and Pyle, J., concur.