concurring.
I concur in the affirmance of the guilty plea conviction and in the sentences imposed. I do so, however, on grounds different than those stated by the majority.
The aggregate sentence of 49 years results from enhancement of each of the seven counts and requiring each of the seven sentences to be served consecutively. In imposing the sentences, the trial court relied upon the same aggravating circumstances as to each enhancement and consecutive sentence. The law as it presently exists permits a trial court to do so. Maynard v. State (1987) Ind., 513 N.E.2d 641. However, such sentencing is appropriate only when the aggravating factor or factors considered are valid.
Here, one of the aggravating factors considered was that: "imposition of reduced sentence or suspension of the sentence and imposition of probation would depreciate [the] seriousness of the crime." Record at 319. The trial court did not impose the presumptive sentence or less than the presumptive sentence. Neither did it consider the factor in light of Evans v. State (1986) Ind., 497 N.E.2d 919. In that case, depreciation of the seriousness of the crime was held appropriate to consideration of imposing less than the enhanced sentence given. See also Wray v. State (1987) 2d Dist. Ind.App., 514 N.E.2d 96. The trial court here did not indicate a similar analysis even though it did in fact impose the enhanced and consecutive sentences.
Even if it were otherwise and the "depreciation of seriousness" factor was appropriately considered, the aggregate sentences might well be held excessive in light of the crimes for which Lockard was convicted. He was not convicted of Child Molesting. To the contrary, at the sentencing hearing the Prosecutor specifically told the trial court that because the children had recanted, she did not have any choice and that she either had to enter into "this type of agreement", i.e., a plea to the confinement charges, or lose the case altogether. "So that's what I did. To get something out of it. To have a handle over him." Record at 306-307.
The convictions upon the guilty plea are of particular significance vis a vis the sentences imposed, because there was no factual basis established for the confinement convictions.3 Lockard admitted that upon occagion he had confined the girls to their rooms: "I told them, you know, that they had to mind, but they just didn't want to listen.... And you know, I lock them in their rooms or something like that and try to keep them from getting hurt." Record at 215, This response by Lockard was solely with regard to events in 1988 and 1989. There was absolutely no factual basis for the offenses alleged to have taken place in 1990, i.e., Counts XXII, XXIII and XXIV.
There is nothing of record which would indicate that the confinements involved were criminal in nature or that Lockard had the requisite mens rea. Although the Criminal Confinement statute, 1.C. 35-42-3-3(a) (Burns Code Ed.Supp.1992), which makes the offense of confinement a Class C felony rather than a Class D felony if the person confined is under the age of 14 and is "not his child", such provision should not be construed to criminalize appropriate disciplinary action by a stepparent. To the contrary, the law has recognized that when assumed, a duty exists on the part of a stepparent to care for and discipline the stepchild. Shoup v. State (1991) 2d Dist. Ind.App., 570 N.E.2d 1298, trans. denied. Thus, care, custody, and control are to be interpreted according to the facts of the particular case and not solely by reference to the legal or biological relationship of the alleged victim and the accused. Survey, Criminal Law, 18 Ind.L.Rev. 157, 175.
Because a stepparent who fails to properly care for or appropriately discipline a dependent child may be convicted of neglect of a dependent pursuant to I.C. 385-46-1-4 (Burns Code Ed.1985), cases involving neglectful confinement are instructive. In the context of dependent neglect, an alleged act of improper and criminal con*990finement is viewed with an eye toward the statutory justification for "engag[ing] in conduct otherwise prohibited if he has legal authority to do so." I.C. 35-41-8-1 (Burns Code Ed.1985). This legal authority includes reasonable parental discipline which would otherwise constitute a criminal offense. See Smith v. State (1986) 4th Dist. Ind.App., 489 N.E.2d 140, trans. denied.4
In order to be justified, the parental discipline must not be cruel or excessive. Smith v. State, supra. Thus it would appear rational to hold a stepparent criminally responsible for exceeding his assumed duty of care and control only if the confinement is excessive, unreasonable or cruel. This court in Hartbarger v. State (1990) 2d Dist. Ind.App., 555 N.E.2d 485, trans. denied, held that the test is to be determined by an objective standard and that the confinement must be such as to result in a harm to the victim. See generally Annotation, Criminal Liability for Excessive or Improper Punishment Inflicted on Child by Parent, Teacher, or One in Loco Parentis, 89 AL.R.2d 396 (1963), and Later Case Service. It is not enough that the child or stepchild "victim" is made to remain in a non-dangerous particular location, such as the child's bedroom or in a chair facing the wall, when the victim would prefer to be elsewhere. Here, there is no indication of record that the alleged confinements were other than for proper disciplinary reasons.
Nevertheless, in the light of relatively new Indiana case law, the guilty plea convictions are valid. Although Trueblood v. State (1992) Ind., 587 N.E.2d 105, involved imposition of the death penalty following a guilty plea, our Supreme Court used phrasing applicable to all guilty pleas:
"Defendants should have the option, however, to plead guilty if they so choose. They may want to do so for a multitude of reasons that may be favorable to them." Id. at 108.
As stated in North Carolina v. Alford (1970) 400 U.S. 25, 91 S.Ct. 160, 164, 27 L.Ed.2d 162:
"The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant."
It was clearly in Lockard's best interest to plead to the seven counts of confinement in light of the agreement to dismiss seventeen counts of child molesting and eight counts of intimidation. For this reason I concur.
. The record does not indicate that any of the instances covered by the seventeen charges of child molestation formed the factual predicates for the confinement allegations.
. Kentucky's statute is more definitive with respect to parental discipline. It provides that the use of physical force is justifiable if the defendant is a parent, guardian or other person entrusted with the care and supervision of a minor and the defendant reasonably believes that his conduct is necessary to promote the welfare of the minor or to maintain discipline. 17 Ky.Rev. Stat.Ann. § 503.110 (Baldwin 1990).