By SHAWN McGRATH

shawn.mcgrath@heraldbulletin.com

In a 2-to-1 opinion, the Indiana Court of Appeals halved a former firefighter’s sentence for child solicitation.

Madison Circuit Court Judge Fredrick Spencer sentenced Joshua Cunningham, 31, formerly of Chesterfield, to eight years in prison after Cunningham pleaded guilty to two counts of child solicitation, Class C and D felonies, and one count of dissemination of harmful materials to a minor, a Class D felony.

In June 2006, Cunningham exchanged explicit e-mails with what he thought was a 15-year-old girl, including sending the teen nude photos of himself. The teen girl, however, was actually an undercover Noblesville police officer. Cunningham pleaded guilty as charged, with the stipulation that the sentences run at the same time. Spencer sentenced Cunningham in October to the maximum for a Class C felony, eight years.

Cunningham has been a firefighter in Marion and Chesterfield, and Spencer cited his role as a public servant in giving him the harsh sentence. In his appeal, however, Cunningham argues that the mitigating factors in his case outweigh any aggravators, and he should have been given a lighter prison term.

“Although tarnished by the (crimes) and Indiana’s public policy that protects children and punishes child abusers for such contemptible crimes, Cunningham’s character does not belong in the worst offender category,” Appeals Court Judge Patricia A. Riley writes for the majority in the opinion released Tuesday. “He has no criminal history. He cooperated with police. He plead guilty to the charges against him and left sentencing to the discretion of the trial court and Indiana courts have recognized that a guilty plea is a significant mitigating factor in some circumstances because it saves judicial resources and spares the victim from a lengthy trial.”

Bryan Williams, who represented Cunningham on the charges, said the appeals court’s decision wasn’t surprising.

“No surprise at all,” Williams said. “The law is very clear. There is nothing to justify an aggravated sentence. It was one incident and he had no criminal history and he cooperated.

“I find it frustrating that we went through all this when the law is so clear in this area. (Cunningham) didn’t down play what he did, but there’s no way to justify Judge Spencer’s sentence.”

The appeals court’s opinion wasn’t unanimous. While Judge Michael P. Barnes concurred with Riley, Judge Edward W. Najam Jr. wrote a dissenting opinion.

“As thoroughly discussed by the trial court and the state, yet ignored by the majority, the nature of Cunningham’s offense was egregious,” Najam writes. “As (Judge Spencer) stated, there was ‘page after page after page after page of explicit sexual innuendoes and some of it not innuendoes.’ In addition, Cunningham transmitted a video of himself (touching himself) and sent that video to the presumed victim, a 15-year-old girl, via the Internet.

“Regarding the nature of Cunningham’s character, I am persuaded by the trial court’s assessment that Cunningham is, ultimately, a man of poor character who is willing to inflict damage to his community by virtue of ignoring his past status as a public servant,” Najam continues. “EMTs and firefighters are often admired by other members of the community, especially children. The fact that Cunningham had been both placed him in a position of unique respect in the community. Nonetheless, Cunningham was willing to degrade himself and other members of those professions by committing (the crimes).”

Madison County Deputy Prosecutor Pat Ragains, who represented the state against Cunningham in some of Cunningham’s court appearances, said he may request the Indiana Attorney General’s Office file a petition with the Indiana Supreme Court to have it review the appeals court’s decision.

“Obviously, I agree with the dissent,” Ragains said. “They looked at his service as a volunteer fireman for almost 13 years as a mitigator. (But) it could also be an aggravator, depending on how you look at it.”

Spencer declined to comment on the appeals court’s opinion.

Cunningham was serving his sentence at the Plainfield Correctional Facility, but it wasn’t immediately clear from the Indiana Department of Correction if he is still being held there. The DOC had previously listed his earliest release date as October 2010.