ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Gregory F. Zoeller
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
FILED
______________________________________________________________________________
Jun 29 2011, 1:38 pm
In the CLERK
of the supreme court,
court of appeals and
Indiana Supreme Court
tax court
_________________________________
No. 13S04-1101-CR-7
DONALD A. PIERCE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellees (Plaintiff below).
_________________________________
Appeal from the Crawford Circuit Court, No. 13C01-0706-FA-002
The Honorable Kenneth L. Lopp, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 13A04-0908-CR-480
_________________________________
June 29, 2011
Rucker, Justice.
A jury convicted Donald A. Pierce on four counts of child molesting, three as Class A
felonies and one as a Class C felony. The jury also adjudicated Pierce a repeat sex offender.
The trial court sentenced Pierce to four consecutive sentences for a total term of 124 years and
enhanced the sentences by ten years for the repeat sex offender adjudication. Based on the
nature of the offense and character of the offender, we revise the sentence to a total term of 80
years.
Background
Pierce dated J.W.’s mother and after several months, moved into the home J.W. and her
mother shared. Pierce and J.W.’s mother planned to marry. In April of 2006, when J.W. was ten
years old, Pierce began molesting her when her mother was at work. According to J.W. the
molestation occurred approximately every other weekend for a year and included sexual
intercourse, oral sex, and fondling. The State charged Pierce with three counts of Class A felony
child molesting and one count of Class C felony child molesting. The State also alleged that
Pierce was a repeat sexual offender1 based on a 1999 conviction for Class C felony child
molesting. A jury found Pierce guilty as charged and also adjudged him a repeat sexual
offender. The trial court sentenced Pierce to forty years on each of the three Class A felony
convictions, four years on the Class C felony conviction, and ordered the sentences to run
consecutively for a total term of 124 years. Suspending ten years to probation, the trial court
also enhanced the sentence by ten years for the repeat sexual offender adjudication and ordered
this sentence to be served concurrently.
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Indiana Code section 35-50-2-14 provides in relevant part:
(e) A person is a repeat sexual offender if the jury (if the hearing is by
jury) or the court (if the hearing is to the court alone) finds that the state
has proved beyond a reasonable doubt that the person had accumulated
one (1) prior unrelated felony sex offense conviction.
(f) The court may sentence a person found to be a repeat sexual offender
to an additional fixed term that is the advisory sentence for the
underlying offense. However, the additional sentence may not exceed
ten (10) years.
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Pierce appealed raising several claims including the appropriateness of his 124-year
sentence. The State cross-appealed contending the trial court erred in ordering Pierce to serve
the repeat offender enhancement concurrently. In an unpublished memorandum decision the
Court of Appeals agreed with the State. It affirmed in part the judgment of the trial court,
remanding this cause with instructions to attach the additional fixed ten-year term to one of
Pierce’s Class A felony sentences for an aggregate term of 134 years. Pierce v. State, No.
13A04-0908-CR-480 (Ind. Ct. App. Oct. 28, 2010). We now grant Pierce’s petition to transfer to
address his appropriateness claim. In all other respects we summarily affirm the opinion of the
Court of Appeals. See Ind. Appellate Rule 58(A)(2).
Discussion
The advisory sentence for a Class A felony is thirty years, the maximum sentence is fifty
years, and the minimum sentence is twenty years. Ind. Code § 35-50-2-4. The advisory term for
a Class C felony is four years with the minimum and maximum terms being two and eight years,
respectively. I.C. § 35-50-2-6. The trial court ―shall determine whether terms of imprisonment
shall be served concurrently or consecutively‖ and may consider the sentencing aggravators and
mitigators in making this determination. I.C. § 35-50-1-2(c); Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010) (recognizing that choosing whether sentences will run concurrently or
consecutively is among the trial court’s many options when determining the length of a
sentence). The trial court here imposed enhanced and consecutive sentences primarily on the
basis of Pierce’s previous child molestation conviction. Tr. at 694. Pierce does not contend that
his sentence does not comply with statute or case law, but rather submits that the total executed
term is excessive and should be revised pursuant to Indiana Appellate Rule 7(B).
Even where a trial court has not abused its discretion in sentencing, the Indiana
Constitution authorizes independent appellate review and revision of a trial court’s sentencing
decision. See Ind. Const. art 7, §§ 4, 6; Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007).
Appellate courts implement this authority through Indiana Appellate Rule 7(B), which provides
that we may revise a sentence if ―after due consideration of the trial court’s decision‖ we find
―the sentence is inappropriate in light of the nature of the offense and the character of the
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offender.‖ App. R. 7(B). We have recognized that ―appellate review should focus on the forest
– the aggregate sentence – rather than the trees – consecutive or concurrent, number of counts, or
length of the sentence on any individual count.‖ Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008).
Concerning the nature of the offense, the advisory sentence is the starting point the
Legislature selected as appropriate for the crime committed. Anglemyer, 868 N.E.2d at 494. As
indicated earlier the advisory sentence for Class A felony child molesting is thirty years. But
crimes against children are particularly contemptible. Monroe v. State, 886 N.E.2d 578, 580
(Ind. 2008). And Pierce was in a position of trust with J.W., preying on her when she was in his
care while her mother was at work. He molested this young child repeatedly for over a year.
Thus the trial court enhanced the advisory sentence on each of the Class A felonies by ten years.
However, the three counts of Class A felony child molestation were identical and involved the
same child. See Walker v. State, 747 N.E.2d 536, 538 (Ind. 2001) (declaring defendant’s
consecutive sentence of eighty years for two counts of Class A felony child molesting manifestly
unreasonable in part because ―the two separate counts of child molesting were identical and
involved the same child‖). The nature and circumstances of Pierce’s crime coupled with his
position of trust with the child victim is sufficiently aggravating to warrant an enhanced
sentence. But, we do not believe this necessarily justifies enhancing each of the Class A felonies
and imposing four consecutive sentences. ―Whether the counts involve one or multiple victims
is highly relevant to the decision to impose consecutive sentences . . . .‖ Cardwell, 895 N.E.2d
1225. See also Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008) (revising consecutive child
molesting sentences to run concurrently where there was only one victim); Smith v. State, 889
N.E.2d 261, 264 (Ind. 2008) (same); Monroe v. State, 886 N.E.2d 578, 580 (Ind. 2008) (same).
Cf. Sanchez v. State, 938 N.E.2d 720, 723 (Ind. 2010) (acknowledging that ―generally, multiple
victims justify the imposition of enhanced and consecutive sentences‖).
As for the character of the offender, we note that other than the prior Class C molestation
conviction, Pierce has no criminal record. We acknowledge that the current offenses are similar
in nature to the prior offense, but we note that the prior offense occurred nearly eight years
before the instant offenses. See Smith, 889 N.E.2d at 264 (reducing sentence where prior similar
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offenses were distant in time from the current offense). Although we agree that the aggravating
weight of Pierce’s criminal history justifies an enhanced sentence, we do not find it sufficiently
aggravating to justify enhancing each of the Class A felonies and imposing four consecutive
sentences.
Finding sufficient aggravating circumstances to warrant imposing enhanced sentences for
child molesting, we revise Pierce’s sentence to an enhanced term of forty (40) years on Count I,
the advisory sentence of thirty (30) years on Counts II and III, and the advisory sentence of four
(4) years on Count IV. Counts II, III, and IV shall be served concurrently with each other and
consecutive to the sentence imposed in Count I; and the ten (10) year enhancement for the repeat
sexual offender adjudication shall be attached to the term imposed in Count I for a total term of
eighty (80) years. On remand, the trial court may determine whether and to what extent any
portion of the sentence should be suspended to probation.
Conclusion
We affirm Pierce’s convictions and remand this cause to the trial court with instructions
to issue an amended sentencing order consistent with this opinion, and without the necessity of
an additional hearing.
Shepard, C.J., and Sullivan, J., concur.
David, J., dissents with separate opinion in which Dickson, J., concurs.
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David, J., dissenting.
I respectfully disagree with my colleagues, as I would not disturb the ruling of the Court
of Appeals. Other than the trial judge mistakenly giving the defendant a concurrent ten year
enhancement, when pursuant to Indiana Code section 35-50-2-14, the enhancement had to be
served consecutively, I am concerned that the majority opinion usurps this Court’s limited role
and sets aside the guidance we gave in Cardwell v State, 859 N.E.2d 1219 (2008). Cardwell held
that ―appellate review should focus on the forest—the aggregate sentence—rather than the
trees—consecutive or concurrent, number of counts, or length of the sentence on any individual
count.‖ 859 N.E.2d at 1225.
Here the trial court judge did exactly what he was supposed to do—exercise discretion
within the required statutory and case law framework. I fear this opinion blurs the guidance in
Cardwell and is more akin to a second guessing by this Court. I believe that after ―due
consideration of the trial court’s decision‖ under Indiana Appellate Rule 7(B) that the sentence is
appropriate ―in light of the nature of the offense and the character of the offender.‖ After all, it is
the defendant’s burden to demonstrate that the trial court sentence is inappropriate.
Furthermore, I do not believe that Walker v. State, 747 N.E.2d 536 (2001) is the relevant
case. In Walker, the two molestations occurred over a period of less than ninety days and
involved only oral sex. Id. at 538. In this case the molestations occurred over a span of one year
and involved fondling, oral sex, and intercourse on multiple occasions. Moreover, Pierce has a
prior conviction for molestation. This is a case where the discretion and judgment of the trial
court should not be overturned. Consequently, with the exception noted above, I would affirm
the trial court.
Dickson, J., concurs.
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