Neale v. State

Attorneys for Appellant Attorneys for
Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General
of Indiana

J. Michael Sauer Daniel Jason Kopp
Deputy Public Defender Deputy Attorney
General
Indianapolis, Indiana Indianapolis,
Indiana
____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 01S02-0408-CR-350

Robert L. Neale,
Appellant (Defendant
below),

v.

State of Indiana,

Appellee (Plaintiff
below).
_________________________________

Appeal from the Adams Circuit Court, No. 01C01-0110-CF-026
The Honorable Frederick A. Schurger, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 01A02-0311-
CR-983
_________________________________

May 3, 2005

Sullivan, Justice.

Defendant Robert L. Neale seeks our review and revision of his 50-
year sentence imposed for child molesting. The principal reason the trial
court increased the sentence beyond the standard 30-year sentence for this
crime was Neale’s prior criminal history. We conclude that his criminal
history, which consists entirely of misdemeanor convictions, does not
justify a 20-year increase in his sentence and revise his sentence to 40
years.

Background

Robert L. Neale lived with a woman and her daughter, M.S. During the
fall of 2000, Neale had sexual intercourse with then 12-year-old M.S. M.S.
testified that this occurred on three or four occasions.

In April, 2001, M.S. reported the abuse to a relative, and her mother
filed a report with the police department. The State later charged Neale
with one count of child molesting, a Class A felony, and a jury found Neale
guilty as charged.

The trial court sentenced Neale to 50 years in the Indiana Department
of Correction—the maximum sentence for a Class A felony[1]—with 10 years
suspended. Neale appealed his sentence, contending that it was
inappropriate in light of the nature of the offense and his character. In
an unpublished decision, a divided panel of the Court of Appeals affirmed
the trial court’s sentence. Neale v. State, No. 01A02-0311-CR-983, slip
op. at 9 (Ind. Ct. App. June 11, 2004). Neale sought, and we granted,
transfer. 822 N.E.2d 971 (Ind. 2004).

Discussion

The Indiana Constitution provides, “The Supreme Court shall have, in
all appeals of criminal cases, the power to . . . review and revise the
sentence imposed.” Ind. Const. art. VII, § 4. Pursuant to this authority,
we have provided by rule that “[t]he 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 offender.” Ind. Appellate Rule 7(B).

The standard or “presumptive” sentence prescribed by the Legislature
for Class A felony child molesting is “thirty (30) years, with not more
than twenty (20) years added for aggravating circumstances or not more than
ten (10) years subtracted for mitigating circumstances.” Ind. Code § 35-50-
2-4 (2004). “If the court relies on aggravating or mitigating
circumstances to deviate from the presumptive sentence, it must (1)
identify all significant mitigating and aggravating circumstances; (2)
state the specific reason why each circumstance has been determined to be
mitigating or aggravating; and (3) articulate the court’s evaluation and
balancing of circumstances.” Francis v. State, 817 N.E.2d 235, 237 (Ind.
2004) (citing Wooley v. State, 716 N.E.2d 919, 929 (Ind. 1999)). When a
defendant challenges on appeal a sentence more severe than the presumptive,
“the reviewing court will examine the record to insure that the sentencing
court explained its reasons for selecting the sentence it imposed.” Id.
(citing Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002)).

At Neale’s sentencing hearing, the court identified three aggravating
circumstances: (1) the Defendant’s extensive criminal history; (2) the
nature and circumstances of the crime committed (more specifically, the
facts that the Defendant committed the crime while residing in the home of
the victim and that the victim described in her testimony multiple acts of
intercourse); and (3) the fact that the Defendant abused his position of
trust as the victim’s stepfather[2] to take advantage of the victim. The
court identified four mitigating circumstances: (1) the crime was the
result of circumstances unlikely to recur; (2) the Defendant is likely to
respond to probation and counseling; (3) the Defendant stated that he was
willing to make restitution to the victim for the injury; and (4) the
Defendant’s imprisonment would pose an undue hardship on the Defendant’s
wife and their daughter. The court balanced these aggravating and
mitigating circumstances and sentenced Neale to 50 years in the Department
of Correction, with 10 years suspended.

I

Neale argues that his sentence is excessive because the lower court
failed to consider as a mitigating circumstance the fact that he caused no
physical injury to M.S. To support his proposition, Neale cites three
opinions of this Court, Buchanan v. State, 699 N.E.2d 655 (Ind. 1998)
(“Buchanan I”), Walker v. State, 747 N.E.2d 536 (Ind. 2001), and Buchanan
v. State, 767 N.E.2d 967 (Ind. 2002) (“Buchanan II”). We reject Neale’s
suggestion that our opinions in these cases stand for the proposition that
the absence of physical injury to M.S. entitles Neale to a sentence
reduction.

In Buchanan I, 699 N.E.2d 655, the defendant was convicted of
carjacking, kidnapping, criminal confinement, and robbery and was sentenced
to 100 years imprisonment. This Court, finding that “the fully enhanced,
consecutive nature of the sentence [was] excessive,” revised the sentence
to 80 years. Buchanan I, 699 N.E.2d at 657. Neale argues that “[t]his
Court found the sentence to be manifestly unreasonable[3] because ‘no
physical injury was suffered by the victim’ and ‘the property loss
sustained was minimal.’” Pet. to Trans. at 3 (quoting Buchanan I, 699
N.E.2d at 657). However, when considered in context, this Court’s
mentioning that there was a lack of physical injury to the victim was
merely dicta: “This crime was one in which, fortunately, no physical injury
was suffered by the victim and in which the property loss sustained was
minimal.” Buchanan I, 699 N.E.2d at 657. In fact, this Court went on to
say that “[t]he absence of physical injury does not mean that the [trial]
court should not impose an enhanced sentence.” Id. Furthermore, in
Buchanan I, the sentence in question was based on convictions unrelated to
sexual abuse.

In Walker, the defendant was convicted of two counts of child
molesting, both Class A felonies. The trial court, finding several
aggravating circumstances but no mitigating circumstances, sentenced the
defendant to two consecutive 40-year sentences for a total of 80 years.
Walker, 747 N.E.2d at 537. Finding that the defendant’s enhanced sentence
was manifestly unreasonable, this Court explained that “[t]he trial court
found a number of aggravating circumstances, including committing the crime
while on probation and fleeing the jurisdiction. Still, the trial court
did not find a history of criminal behavior. Moreover, the two separate
counts of child molestation were identical and involved the same child.”
Id. at 538. This Court continued: “Additionally, there was no physical
injury. Although the absence of physical injury does not bar an enhanced
sentence, this is some distance from being the worst offense or the most
culpable offender.” Id. As in Buchanan I, the Court’s mention of the
absence of physical injury is coupled with a declaration that this fact
does not bar an enhanced sentence.

Finally, in Buchanan II, 767 N.E.2d 967, the defendant was sentenced
to the maximum sentence of 50 years for Class A felony child molesting.
The defendant appealed, arguing that the imposition of his sentence was
“manifestly unreasonable and not proportional to the nature of his
offense.” Id. at 970. This Court, in considering whether the defendant’s
sentence was unreasonable, again discussed the fact that there was an
absence of physical harm. And again, this discussion was in the context of
determining whether the defendant was “within the class of offenders for
whom the maximum possible sentence is appropriate.” Id. at 974.
Furthermore, this Court specifically noted:

While the absence of [brutality] does not in any way lessen the
severity of the crimes as such, and thus does not constitute a
mitigating factor justifying a reduction or suspension of the
presumptive sentence, the presence of aggravated brutality
distinguishes the defendants who commit such acts and justifies a
substantially aggravated term where it is present. We do not by this
observation debase the seriousness of [sexual assault crimes]
themselves. Nor do we suggest that the absence of collateral
brutality prevents the imposition of an enhanced sentence.

Id. at 973 n.4 (quoting Fointno v. State, 487 N.E.2d 140 (Ind. 1986))
(first emphasis in original; second and third emphases added).

In each of the cases Neale cites, we considered the fact that the
defendant did not cause physical harm to the victim when determining
whether he was within the class of offenders for whom the maximum sentence
is appropriate. But in each case, we explicitly stated that the absence of
physical harm is not an automatic mitigating circumstance such that it
would require a lesser sentence than would otherwise be imposed.

II

Although we disagree with Neale that the trial court should have
considered the absence of physical harm a mitigating circumstance, we find
that the maximum sentence is inappropriate.

As noted before, the trial court identified three aggravating
circumstances: (1) the Defendant’s extensive criminal history; (2) the
nature and circumstances of the crime; and (3) the fact that the Defendant
abused his position of trust as the victim’s stepfather. The court also
identified four mitigating circumstances: (1) the crime was the result of
circumstances unlikely to recur; (2) the Defendant is likely to respond to
probation and counseling; (3) the Defendant stated that he is willing to
make restitution to the victim for the injury; and (4) the Defendant’s
imprisonment will pose an undue hardship on the Defendant’s wife and their
daughter. The trial court assigned “slight” or “minimal” weight to the
first three mitigators. It found the fourth to be the strongest of all,
but still found it to be “significantly weakened.”

Neale’s criminal history, while extensive, consists only of
misdemeanors; most of them were alcohol related. These included, driving
while suspended, operating a vehicle while intoxicated, public
intoxication, and battery. In Ruiz v. State, we held that “convictions for
alcohol-related offenses are at best marginally significant as aggravating
circumstances in considering a sentence for a Class B felony.” 818 N.E.2d
927, 929 (Ind. 2004). We also noted that “[s]ignificance varies based on
the gravity, nature and number of prior offenses as they relate to the
current offense.” Id. (quoting Wooley v. State, 716 N.E.2d 919, 929 (Ind.
1999). Here, there was neither drinking nor driving involved in the acts
of child molesting, and “the latter is manifestly different in nature and
gravity from the misdemeanors.” Id. We do not find the aggravating weight
of Neale’s criminal history sufficient to justify the maximum sentence for
a Class A felony.

In affirming the sentence imposed by the trial court, the Court of
Appeals paraphrased Appellate Rule 7(B) (quoted in full supra) as follows:
“A sentence that is authorized by statute will not be revised unless it is
inappropriate in light of the nature of the offense and the character of
the offender.” Neale v. State, No. 01A02-0311-CR-983, slip op. at 4 (Ind.
Ct. App. June 11, 2004) (citing Foster v. State, 795 N.E.2d 1078, 1092
(Ind. Ct. App. 2003), trans. denied). While accurate as a matter of logic,
i.e., the rule does not authorize a sentence to be revised unless it is
inappropriate in light of the nature of the offense and the character of
the offender, we believe that phrasing the rule in the negative suggests a
greater degree of restraint on the reviewing court than the rule is
intended to impose. When we made the change to the language of the rule
referred to in Footnote 3, we changed its thrust from a prohibition on
revising sentences unless certain narrow conditions were met to an
authorization to revise sentences when certain broad conditions are
satisfied. Cf. App. R. 7(B) at 181 (West 2002) (repealed effective Jan. 1,
2001) (“The Court shall not revise a sentence authorized by statute unless
the sentence is manifestly unreasonable in light of the nature of the
offense and the character of the offender.”) with App. R. 7(B) at 185 (West
2005) (“The 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 offender.”). Furthermore, as Judge Riley noted in her
dissent in the Court of Appeals decision, the trial court in this case
found several mitigating circumstances, although it assigned them little
weight. Neale, slip op. at 10-11. We agree with her analysis and
conclusion that the appropriate sentence for Neale is 40 years, with 10
years suspended to probation.

Conclusion

We remand this case to the trial court with instructions to issue an
amended sentencing order and to issue or make any other documents or docket
entries necessary to impose a sentence of 40 years, with 10 years suspended
to probation, without a hearing.

Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., dissents,
believing the “due consideration of the trial court’s decision” required by
Indiana Appellate Rule 7(B) should restrain appellate revision of sentences
to only rare, exceptional cases, and that this is not such a case.
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[1] Ind. Code § 35-50-2-4 (2004).
[2] The parties indicate that Neale and the victim’s mother married after
the crimes were committed but prior to trial and sentencing.
[3] Before January 1, 2003, an appellate court needed to find that a trial
court’s sentence was “manifestly unreasonable” before it could revise the
sentence. Effective January 1, 2003, the rule was amended to authorize an
appellate court to revise a sentence if it finds “after due consideration
of the trial court’s decision,” that a sentence is “inappropriate in light
of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B).