concurring and dissenting.
I concur with the majority's determination that Payton's convictions of the lesser-included offenses of sexual battery must be vacated on double jeopardy grounds. However, believing that Payton's sentence is entirely appropriate, I respectfully dissent from the majority's decision to modify that sentence.
When we review the appropriateness of a sentence "we exercise with great restraint our responsibility to review and revise sentences, recognizing the special expertise of the trial bench in making sentencing decisions." Green v. State, 811 N.E.2d 874, 880 (Ind.Ct.App.2004). As the majority observes, our supreme court has determined that the maximum possible sentence should be reserved for the worst offenders and offenses. Op. at 498 (citing Buchanan v. State, 767 N.E.2d 967, 974 (Ind.2002)). In applying that principle, our court has held when determining whether
a case is among the very worst offenses and a defendant among the very worst offenders, thus justifying the maximum sentence: We should concentrate less on comparing the facts of this case to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character.
Brown v. State, 760 N.E.2d 243, 247 (Ind.Ct.App.2002), trans. denied; see also Foster v. State, 795 N.E.2d 1078, 1092 (Ind.Ct.App.2003), trans. denied.
I agree with the majority's determination that "Payton's character falls within the category of the worst offenders." See Op. at 498. However, the majority also concluded that Payton's offenses "while egregious, are by far not the worst we have reviewed," and therefore, found his aggregate thirty-nine-year sentence to be inappropriate. Id.
In considering the nature of Payton's offenses, the trial court found the offenses "to be particularly disturbing." Sentencing Tr. p. 15. The court noted that Payton accosted the children while they were playing by impersonating a police officer. Id. By impersonating a police officer, Payton led the children to believe that they were required to submit to his authority and used that belief to molest and sexually batter the children. Therefore, after considering the nature of the offense and the character of the offender, I conclude, as did the trial court, that the maximum sentence was warranted in this case. Accordingly, I would affirm the trial court's decision to sentence Payton to the maximum, aggregate sentence of thirty-nine years.