ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard L. Langston Gregory F. Zoeller
Frankfort, Indiana Attorney General of Indiana
Brian L. Reitz
Deputy Attorney General
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Jun 26 2012, 4:14 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 12S02-1109-CR-544
MICHAEL SHARP, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Clinton Superior Court, No. 12D01-0811-FA-150
The Honorable Justin H. Hunter, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 12A02-1010-CR-1188
_________________________________
June 26, 2012
Dickson, Chief Justice.
The defendant Michael E. Sharp has appealed his convictions and sentences for two
counts of Child Molesting. The Court of Appeals rejected his several appellate claims and af-
firmed the trial court. Sharp v. State, 951 N.E.2d 282 (Ind. Ct. App. 2011). Seeking transfer, the
defendant asserts a single claim: that the Court of Appeals should have considered his credit re-
stricted felon status when evaluating his request for appellate sentence review under Indiana Ap-
pellate Rule 7. As to this issue, we reject the rationale applied by the Court of Appeals but reach
the same outcome regarding the appropriateness of the defendant's sentence. With respect to the
defendant's other appellate issues, we summarily affirm the Court of Appeals.1 Ind. App. R.
58(A)(2).
Briefly summarizing the relevant facts, between August 1, 2007, and August 31, 2008,
the defendant molested C.S., his stepson, every other weekend while C.S. was visiting his moth-
er. The molestation occurred after everyone in the house went to bed. The defendant would go
into C.S.'s room and awaken C.S. by touching and fondling him. Each time C.S. would tell the
defendant to stop, and the defendant would leave. At some point, the defendant told C.S. that "it
was a secret and he would go to jail if [C.S.] told." Tr. at 78. C.S. told his stepmother about the
molestation on October 6, 2008, and she promptly reported the abuse to law enforcement offi-
cials. A more detailed presentation of the facts can be found in the Court of Appeals opinion.
Sharp, 951 N.E.2d at 285–86.
Following a jury trial in which the defendant was found guilty of Child Molesting as a
class A felony and Child Molesting as a class C felony,2 the trial judge imposed concurrent sen-
tences of 40 years for the class A felony and 6 years for the class C felony. The trial judge also
ordered the defendant to be placed on lifetime parole pursuant to Indiana Code Section 35-50-6-
1(e) following his term of incarceration. In addition, the defendant was designated as (a) a sex-
ually violent predator pursuant to Indiana Code Section 35-38-1-7.5 and (b) a credit restricted
felon pursuant to Indiana Code Section 35-41-1-5.5(1)3 and therefore assigned to class IV for
1
At oral argument, the defendant asserted an additional claim that his designation as a credit re-
stricted felon under Indiana Code Section 35-41-1-5.5 violates the ex post facto clause of the United
States Constitution, U.S. Const. art. I, § 10. The defendant argues that, because the jury did not make a
specific finding that any of the acts of molestation occurred after the effective date of the credit restricted
felon statute, there was insufficient evidence to support his designation as a credit restricted felon. We
need not explore the nature of the ex post facto prohibition, however, because C.S. testified at trial that
the defendant "touched my private area," Tr. at 76, "[a]bout every other weekend I was over [at the de-
fendant's house in the two years preceding October 6, 2008]," Tr. at 74, 77. This was sufficient evidence
from which a reasonable jury could conclude that the defendant molested C.S. after July 1, 2008, the ef-
fective date of the statute.
2
Ind. Code §§ 35-42-4-3(a)(1) and 3(b).
3
Indiana Code Section 34-41-1-5.5 states:
“Credit restricted felon” means a person who has been convicted of at least one (1) of the follow-
ing offenses:
2
purposes of credit time.4 The defendant’s appeal raises issues of double jeopardy and improper
sentencing. As to the latter claim, the defendant has primarily challenged the trial court's consid-
eration of aggravating and mitigating circumstances. Embedded within his argument on this
claim is a request for appellate review and revision of his sentence. The Court of Appeals reject-
ed all of his claims and, in its appellate sentence review, held "we will not take into account a
person's credit restricted felon status when reviewing a sentence under Appellate Rule 7(B)" be-
cause "credit time is set by the legislature and is not a discretionary tool used by the trial court
judge." Sharp, 951 N.E.2d at 290. We granted transfer and now hold that credit time status may
be considered by an appellate court exercising its review and revise authority.
The exercise of appellate authority to review and revise criminal sentences is governed
by Indiana Appellate Rule 7(B), which provides that an appellate 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 offend-
er."
(1) Child molesting involving sexual intercourse or deviate sexual conduct (IC 35-42-4-
3(a)), if:
(A) the offense is committed by a person at least twenty-one (21) years of age;
and
(B) the victim is less than twelve (12) years of age.
(2) Child molesting (IC 35-42-4-3) resulting in serious bodily injury or death.
(3) Murder (IC 35-42-1-1), if:
(A) the person killed the victim while committing or attempting to commit child
molesting (IC 35-42-4-3);
(B) the victim was the victim of a sex crime under IC 35-42-4 for which the per-
son was convicted; or
(C) the victim of the murder was listed by the state or known by the person to be
a witness against the person in a prosecution for a sex crime under IC 35-42-4
and the person committed the murder with the intent to prevent the person from
testifying.
4
Depending on the credit class to which a defendant is assigned, a defendant may earn a statutori-
ly specified amount of credit time for each day of incarceration which can reduce the amount of time the
defendant is incarcerated. Ind. Code § 35-50-6-3. A defendant is initially assigned to credit class I or IV
depending on whether the defendant is a credit restricted felon. Id. §§ 35-50-6-3(a), (b). "A person as-
signed to Class IV earns one (1) day of credit time for every six (6) days the person is imprisoned for a
crime or confined awaiting trial or sentencing," id. § 35-50-6-3(d), while "[a] person assigned to Class I
earns one (1) day of credit time for each day the person is imprisoned for a crime or confined awaiting
trial or sentencing," id. § 35-50-6-3(a). Pursuant to Indiana Code Section 35-50-6-4(b), a credit restricted
felon is automatically assigned to credit class IV. After the initial assignment, a defendant can be reas-
signed to a more or less restrictive class or be deprived of any earned credit time depending on his or her
compliance with certain rules and other factors. Id. §§ 35-50-6-4, -5.
3
Under Indiana law, several tools are available to the trial court to use in fashioning an
appropriate sentence for a convicted offender.5 In addition to conventional imprisonment for a
term of years, there can also be separate consequences such as "suspension of [all or part of the
term of years portion of the] sentence, probation, home detention, placement in a community
corrections program, executed time in a Department of Correction facility, or [the] serving of
[term of years] sentences on multiple convictions concurrently rather than consecutively" as well
as monetary penalties such as restitution and fines. Davidson v. State, 926 N.E.2d 1023, 1025
(Ind. 2010) (footnotes omitted). These other penal tools form an integral part of the actual ag-
gregate penalty faced by a defendant and are thus properly considered as part of the sentence
subject to appellate review and revision. See id.
In this appeal, the defendant contends that his unfavorable credit time status should be
considered as part of the aggregate penal consequences subject to appellate review and revision
under Appellate Rule 7.6 The State responds that a defendant's credit time status should not be
considered for purposes of Appellate Rule 7 review because credit time status is a "correctional
tool" offered as a carrot to encourage a defendant to conduct himself or herself appropriately
while incarcerated. Oral Arg. at 00:24:30, 00:30:10, available at https://mycourts.in.gov/
arguments/default.aspx?view=detail&id=1287. The State asserts that, because the amount of
credit time that might ultimately be earned by a defendant is contingent on future circumstances,
the sentence is unknowable at the time of an appellate court's review and is, therefore, not an ap-
propriate factor for an appellate court to consider as a part of Appellate Rule 7 review.
To the contrary, we do not find the possibility of post-sentence credit time adjustment to
preclude appellate consideration of a trial court’s initial credit time assignment at the time of sen-
tencing. In exercising appellate sentence review, our concern is whether the totality of the penal
consequences imposed by the trial court was appropriate. See Davidson, 926 N.E.2d at 1025
5
Article 1, Section 18 of the Indiana Constitution provides: "The penal code shall be founded on
the principles of reformation, and not of vindictive justice."
6
As a credit restricted felon, the defendant will be required to serve a minimum of 34.29 years of
his 40 year sentence, if he maintains his eligibility for credit time, compared to a non-credit restricted fel-
on who would only be required to serve a minimum of 20 years.
4
(holding that appellate courts should consider the "aggregate length of the sentence" because of
the variety of penal tools available to the trial court); Cardwell v. State, 895 N.E.2d 1219, 1224–
25 (Ind. 2008) (discussing the need to consider the aggregate term of incarceration rather than
the separate terms for individual counts because of the prosecutor's discretion as to charging de-
cisions and the trial court's discretion in determining how the defendant's incarceration time will
be served). Appellate Rule 7(B) thus authorizes appellate courts to review and revise the totality
of penal consequences ordered by a trial court to determine its appropriateness "in light of the
nature of the offense and the character of the offender." Accordingly, evaluation of a defendant's
sentence may include consideration of the defendant's credit time status because this penal con-
sequence was within the contemplation of the trial court when it was determining the defendant's
sentence.
Applying these principles to this case, however, we do not accept the defendant's conten-
tion that his sentence of 40 years of incarceration with a minimum possible sentence of 34.29
years is inappropriate. In explaining the reasons for the penal consequences selected for the de-
fendant’s sentence, the trial court detailed the nature of the crime committed, noting: The "De-
fendant was in a position of having care, custody, or control of the victim when he perpetrated
the offenses"; "Although the Defendant was charged with only one count each of molesting by
deviate sexual conduct and molesting by fondling, the evidence at trial clearly demonstrated that
the Defendant had committed each of the same the offenses [sic] upon his victim on multiple oc-
casions over a period of years." Appellant's Br. at 18. These facts convince us that the nature of
the defendant's criminal conduct warrants serious penal consequences. The defendant contends
that his subsequent acknowledgment of his own shortcomings and his pursuit of his faith are in-
dicators of positive character, but we are not persuaded that these factors undermine the appro-
priateness of the sentence chosen by the trial court. Even with the further consideration of the
defendant's assigned credit time status, we do not find the defendant's sentence to be inappropri-
ate in light of the nature of his offenses and his character.
5
Conclusion
We hold that appellate sentence review may take into consideration the potential conse-
quences of an offenders' status as a credit restricted felon, but we otherwise summarily affirm the
decision of the Court of Appeals regarding double jeopardy and the trial court's consideration of
aggravating and mitigating circumstances. We decline to find the defendant's sentence to be in-
appropriate, and we affirm the judgment of the trial court.
Sullivan, Rucker, David, and Massa, JJ., concur.
6