Tracy J. Konsdorf v. State of Indiana (mem. dec.)
79A04-1704-CR-881
| Ind. Ct. App. | Nov 7, 2017Background
- Tracy Konsdorf, a 48-year-old school bus driver, exchanged hundreds of messages with a 14‑year‑old student and engaged in hugs, kissing, and some touching while on the bus; she also asked the student to cover bus cameras.
- State charged Konsdorf with Level 5 felony sexual misconduct with a minor; she pleaded guilty without a plea agreement.
- After the plea, Konsdorf sought to withdraw, alleging misunderstanding and ineffective assistance; the trial court denied withdrawal.
- At sentencing the court found two aggravators (position of trust; grooming) and some mitigators (guilty plea; no criminal history) and imposed 4 years (1 executed, 3 suspended; with probation/community corrections).
- Konsdorf appealed, challenging plea validity, failure to advise about sex‑offender registration, sentence appropriateness/mitigators, and several probation conditions as overly broad. The Court of Appeals affirmed plea and sentence but remanded to narrow two probation conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of guilty plea (alleged contemporaneous protestations of innocence) | Konsdorf contends she initially denied elements and therefore plea was invalid | State: initial denials were brief/nervous and she later admitted all elements | Court: Plea valid — brief denials followed quickly by full admissions; no protestation of innocence |
| Failure to advise of sex‑offender registration at plea | Konsdorf says trial court should have warned her she would have to register | State: registration is a collateral consequence not required to be advised at plea | Court: No error — advisement of collateral consequences not required; no showing she would have pled differently |
| Motion to withdraw plea / ineffective assistance / oral plea agreement | Konsdorf asserts she pleaded under an oral promise and had ineffective counsel, so plea involuntary | State: Record shows no plea agreement; defendant admitted guilt; burden on defendant to show manifest injustice | Court: Denial affirmed — plea knowing/voluntary; no evidence of agreement or manifest injustice |
| Sentence appropriateness and omitted mitigators | Konsdorf argues sentence (4 yrs, 1 executed) is inappropriate; court overlooked mitigators (low recidivism risk; family hardship; less‑egregious offense) | State emphasizes grooming, misuse of position of trust, planning (camera covering), defendant’s minimization of conduct | Court: Sentence not inappropriate — facts and offender character support sentence; trial court reasonably rejected proposed mitigators |
| Probation condition: ban on visiting "businesses that sell sexual devices or aids" | Konsdorf: provision is overbroad (could include ordinary retailers/pharmacies) | State: provision clarifies sexual‑nature businesses; tied to sexual offense | Court: Condition overly broad as written; remand for clarification |
| Probation condition: must obtain court/treatment permission before sexual relationship with anyone who has children under 16 | Konsdorf: condition overbroad — covers adults with no custodial/contact relationship to child | State: aims to protect children; requires permission rather than absolute ban | Court: Condition overly broad and not narrowly tailored; remand to narrow scope |
| Probation condition: no contact with persons under 16 unless approved or after treatment | Konsdorf: challenges as overbroad re: incidental contact | State: condition permits incidental contact; targets intentional contact | Court: Condition upheld — does not prohibit incidental/unintentional contact |
Key Cases Cited
- Carter v. State, 739 N.E.2d 126 (Ind. 2000) (trial court may not accept a guilty plea accompanied by a contemporaneous denial of guilt)
- Johnson v. State, 734 N.E.2d 242 (Ind. 2000) (a defendant may plead guilty and later protest innocence without invalidating plea)
- Tumulty v. State, 666 N.E.2d 394 (Ind. 1996) (plea waives many direct‑appeal challenges)
- Moshenek v. State, 868 N.E.2d 419 (Ind. 2007) (trial court is best positioned to weigh credibility when ruling on plea‑withdrawal motions)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (standards for appellate review of sentencing decisions)
- Knapp v. State, 9 N.E.3d 1274 (Ind. 2014) (review under App. R. 7(B) should defer to trial court and focus on outliers)
- Brightman v. State, 758 N.E.2d 41 (Ind. 2001) (presumption favoring trial court's ruling on plea‑withdrawal motions)
- McVey v. State, 863 N.E.2d 434 (Ind. Ct. App. 2007) (probation condition requiring reporting of incidental contact with minors was overly broad)
- Collins v. State, 911 N.E.2d 700 (Ind. Ct. App. 2009) (probation prohibition on visiting businesses that sell sexual devices or aids can be unreasonably broad)
- Rexroat v. State, 966 N.E.2d 165 (Ind. Ct. App. 2012) (probation conditions barring contact with minors upheld as to intentional contact; incidental contact not required to be avoided)