Attorneys for Appellant Attorneys for Appellee
Paula M. Sauer Steve Carter
Danville, Indiana Attorney General
of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 32S01-0305-CR-210
Stephen T. Serino,
Appellant (Plaintiff below),
v.
State of Indiana,
Appellees (Defendants below).
_________________________________
Appeal from the Hendricks Superior Court, No. 32D03-0011-CF-229
The Honorable Judge Karen M. Love
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 32A01-0201-
CR-35
_________________________________
November 19, 2003
Shepard, Chief Justice.
The State charged appellant Stephen T. Serino with twenty-six counts
of child molesting and sexual misconduct involving a minor, and a jury
found him guilty on all counts. These charges involved various acts
committed with a teenage boy over about three years. The trial court
sentenced him to 385 years in jail. We affirm the conviction, but revise
the sentence to ninety years.
Facts and Procedural History
Serino became friends with S.M.’s mother when the child was just two
years old. Their encounters were sporadic; sometimes as much as two years
would go without seeing each other. In 1992, the mother wished to have her
son tested for attention deficit disorder and she contacted Serino, who
worked for the local schools and had training in psychology. After this
experience, she and her sons saw more of Serino.
When Serino became divorced in 1996, they began spending regular time
with Serino and his adopted son. The first inappropriate conduct occurred
during l997, when S.M. was eleven. Serino began giving him backrubs and by
summer progressed to rubbing S.M.’s penis beneath the boy’s underwear.
Such conduct proceeded over the winter.
Serino and his teenage son moved to Wisconsin during the summer of
1998. They returned in the fall of 1999 when Serino began a new job at the
schools in Owen County. S.M.’s mother and her sons moved to a new home in
Plainfield about the same time. By January 2000 the two parents began
dating, the families were spending most weekends together, and Serino
became a father figure to S.M.
The bad news was that Serino also took up once again molesting the
boy. Serino and the boy slept in a bed together during overnight visits,
and Serino fondled S.M. and sucked his penis, forced S.M. to do the same,
and eventually began demanding that S.M. perform anal sex on him. Though
S.M.’s mother had no concern about the sleeping arrangements, Serino’s aunt
objected, and the mother began asking that the sleeping arrangements
change, at least when overnights were under her roof.
These activities sometimes occurred under especially distasteful
circumstances. Serino and his son commonly went to church on Wednesday
evenings, and they sometimes picked up S.M. to go with them. Overnight
visits after church turned into sexual abuse of S.M.
The parents’ romantic relationship ended in the fall of 2000, and it
appeared that S.M. became increasingly sensitive to the mention of Serino’s
name. About two months later, he told his mother about Serino’s
molestations. This led to the charges of twenty-six counts, the jury
verdict, and the sentence.
On appeal, Serino challenged his conviction and sentence on multiple
grounds. The Court of Appeals affirmed. Serino v. State, No. 32A01-0201-
CR-35, (Ind. Ct. App. March 7, 2003). We granted transfer to consider
Serino’s appeal of his sentence. We summarily affirm the decision of the
Court of Appeals concerning Serino’s other claims of error. Ind. Appellate
Rule 58 (A).
I. Possible Approaches to Sentencing
American jurisdictions have embraced a variety of methods for
imposing criminal sentences, and most states and the federal government
have revised their practices over time.
Indeterminate sentencing arrangements, for example, provide for
sentences stated as a range of years, such as “ten to twenty years.”
Black’s Law Dictionary 1367 (7th ed. 1999). Indiana used this system until
1977, so that, for example, the punishment for child molesting used to be
either one to five years for molesting children between twelve and sixteen
years old, or two to twenty-one years for molesting children under twelve
years of age. Ind. Code Ann. § 35-1-54-4 (Michie 1975).[1]
Under indeterminate sentencing systems, the actual number of years of
incarceration was decided by officials of the executive branch, typically
based on the behavior of the prisoner. Under Indiana’s old system, it was
the task of the parole board to determine when an offender was ready for
release. See generally Hon. Louis B. Meyer, North Carolina’s Fair
Sentencing Act: An Ineffective Scarecrow, 28 Wake Forest L. Rev. 519, 557
n.249 (1993).
A leading alternative to such arrangements has been determinate
sentencing, under which the court imposes a penalty stated as a specific
number of years. The current version of this system employed in Indiana
provides for a “standard” sentence, from which the trial judge may add or
subtract based on findings of aggravating or mitigating circumstances.
Thus, the standard sentence for the crime of child molesting as a class A
felony is thirty years, to which the trial judge may add as much as twenty
or subtract as much as ten years. Ind. Code Ann. § 35-50-2-4 (West 1998).
One could characterize this system as one in which judicial discretion is
guided within a range. It thus produces widely varying sentences for
similar crimes, especially when the prosecutor elects to file multiple
charges arising out of the same basic events.
Of course, a respectable legal system attempts to impose similar
sentences on perpetrators committing the same acts who have the same
backgrounds. While it is widely recognized that this is extremely
difficult to achieve in any court system that makes thousands of such
decisions annually, serious efforts to achieve it continue. In the federal
system, judges are bound by a scheme of guidelines in which points are
assigned for various factors relevant to sentencing. The 2003 sentencing
guidelines, prepared by the Office of Special Counsel of the United States
Sentencing Commission, are promulgated pursuant to the PROTECT Act, Pub. L.
108-21.
Several states have undertaken similar exercises. Georgia adopted a
comparable but non-binding guideline to “reserve the hardest bed for the
hardest criminal.” Walter C. Jones, Panel recommends sentencing
guidelines, The Augusta Chronicle, December 2, 1999. Likewise, Oregon
adopted an indeterminate structure and added a parole matrix. It reasoned,
“[a] corrections system that overruns its resources can increase the risk
to life and property within the system and to the public.” See Oregon
Sentencing Guidelines, (2003) available at
http://www.ocjc.state.or.us/SG.htm. Arizona adopted the indeterminate
sentencing structure, but later opted to revise the scheme to a presumptive
term. Arizona v. Wagner, 976 P.2d 250, 255 (Ariz. Ct. App. 1998) (citing
Rudolph J. Gerber, Criminal Law of Arizona, ch. 7, at 702-08 (2nd ed.
1993)).[2]
Several states have abandoned indeterminate sentencing and instead
adopted a “Truth-in-Sentencing” system to reduce the likelihood of
confusion and uncertainty regarding a particular sentence. In 1995, Ohio
offered greater protection for victims of crime, broadened discretion for
trial judges in sentencing, limited appellate review of sentencing, and
abolished the traditional “good time” concept. See Ohio Bar Association
(2003), available at http://www.ohiobar.org/. The Congress has fostered
this movement by adding provisions in federal grant programs that promote
state adoption of “Truth-in-Sentencing” laws. See, e.g., 42 U.S.C. § 13704
(2002) (lists eligibility and exceptions for “Truth-in-Sentencing”
incentive grants); see also 42 U.S.C. § 13703 (2002) (applies “Truth-in-
sentencing” law to violent offender incarceration).
As for serious grid systems, Massachusetts used one scheme whereby the
grid cell represented the governing offense and the classification of the
criminal history to determine an appropriate sentence for the offender.
See http://www.state.ma.us/courts/formsandguidelines/index.html. Michigan
also followed a system to reduce unwarranted disparities in sentencing
decisions. See People v. Hegwood, 636 N.W.2d 127, 131 (Mich. 2001).
Likewise, Minnesota adopted similar guidelines to promote proportionality
and uniformity in sentencing. See Minnesota Sentencing Guidelines
Commission, (2003), available at
http://www.msgc.state.mn.us/goals_of_the_guidelines.htm (explains goals of
sentencing guidelines). The American Law Institute has a major project
under way to develop a model for sentencing commissions and guidelines.
A.L.I., Model Penal Code: Sentencing, Preliminary Drafts No. 2, June 3,
2003.
The federal system is the one most well known, though complaints about
it abound. See Stephen J. Schulhofer, Assessing the Federal Sentencing
Process: The Problem Is Uniformity, Not Disparity, 29 Am. Crim. L. Rev.
833, 861-63 (1992) (discussing the Guidelines' inflexibility toward
departures); see also Paul J. Hofer, The Reason Behind the Rules: Finding
and Using the Philosophy of the Federal Sentencing Guidelines, 40 Am. Crim.
L. Rev. 19, 20 (2003) (discussing the Guidelines’ failure to express a
coherent philosophy of punishment).
The debate about the best way to devise effective sentences is
current and local. The Indiana General Assembly has recently created a
Sentencing Policy Study Committee, part of whose mission will be to assure
that sentencing laws protect the public and promote fairness and uniformity
in sentencing. See H.B. 1145, 113th Gen. Assem., 1st Reg. Sess. (Ind.
2003), P.L. 140.
The Present Indiana System
The statutory process by which trial judges fashion discrete sentences
has been described above.
Appellate review of such sentences proceeds on a basis somewhat
different from the methods that apply to other issues that typically are
the subject of a criminal appeal. The drafters of the present judicial
article of the Indiana Constitution provided in Article 7, section 4: “The
Supreme Court shall have, in all appeals of criminal cases, the power to
review all questions of law and to review and revise the sentence imposed.”
Likewise, the constitution authorizes the Court of Appeals to review
sentences to the extent provided by Supreme Court rules. Ind. Const. art.
VII, § 6.
While Indiana legislative history is frequently sparse, the
legislative history of these provisions is available and fairly
informative. The framers of the constitutional reform of which section 4
was a part provided explicitly for reference to certain historical
materials to assist in interpreting its meaning: “The report of the
Judicial Study Commission and the comments to the article contained therein
may be consulted by the Court of Justice to determine the underlying
reasons, purposes, and policies of this article and may be used as a guide
in its construction and application.” Ind. Const. art. VII, Schedule
(Michie 1978 ed.).
The Commission's report describes the origin and scope of the power to
review and revise sentences contained in section 4: “The proposal that the
appellate power in criminal cases include the power to review sentences is
based on the efficacious use to which that power has been put by the Court
of Criminal Appeals in England.” Report of the Judicial Study Commission
140 (1967). The English statute establishing the Court of Criminal Appeals
set forth that court's power to review and revise sentences as follows:
On appeal against sentence the Court of Criminal Appeal shall, if they
think that a different sentence should have been passed, quash the
sentence passed at the trial, and pass such other sentence warranted
in law by the verdict (whether more or less severe) in substitution
therefore as they think ought to have been passed, and in any other
case shall dismiss the appeal. Criminal Appeal Act, 1907, 7 Edward 7,
ch. 23 § 4(3).
Cooper v. State, 540 N.E.2d 1216, 1218 (Ind. 1989).
For much of the period after the voters adopted this provision of the
state constitution, this Court constrained review of sentences under a rule
that provided that appellate courts could not revise sentences unless “the
sentence was manifestly unreasonable in light of the offense and the
offender.” See Ind. Appellate Rule 7(B) (2002). This barrier was so high
that it ran the risk of impinging on another constitutional right contained
in Article 7, that the Supreme Court’s rules shall “provide in all cases an
absolute right to one appeal.” Ind. Const. art. VII, § 6.
Accordingly, we have taken modest steps to provide more realistic
appeal of sentencing issues. The present rule says: “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.”
Ind. Appellate Rule 7(B).
This formulation places central focus on the role of the trial judge,
while reserving for the appellate court the chance to review the matter in
a climate more distant from local clamor. The rule recited above became
effective on January l, 2003, well after Serino was sentenced, but the
Court of Appeals usefully applied this standard to the present appeal, as
it has recently done in other cases.
The Merits of Serino’s Claim
Two factors can drive the potential for cumulative sentences outside
the standard statutory range for a given crime.
First, when the perpetrator commits the same offense against two
victims, enhanced and consecutive sentences seem necessary to vindicate the
fact that there were separate harms and separate acts against more than one
person. See Tobar v. State, 740 N.E.2d 106 (Ind. 2000) (defendant
convicted of three murders and sentenced to consecutive sentences).
Second, the prosecutor may elect to charge multiple aspects of the
same event as separate counts defined by separate criminal statutes. See,
e.g., Winn v. State, 748 N.E.2d 352 (Ind. 2001) (defendant convicted of
rape, criminal deviate conduct, criminal confinement, battery, and criminal
recklessness).
Where the charging has been particularly muscular, this may create the
theoretical possibility of very long sentences. The only statutory
restraint on sentencing under such circumstances appears in Ind. Code § 35-
50-1-2(c), which, except for crimes of violence, limits the total sentence
for acts arising out of a single episode of criminal conduct to the
presumptive sentence for a felony one class higher than the highest felony
charged.[3]
In imposing the sentence here, the trial court found five aggravating
circumstances: 1) Serino’s need for correctional or rehabilitative
treatment; 2) that he was in a position of trust with the victim and
exploited that trust; 3) that Serino was not charged with all crimes
committed against the child; 4) that Serino had other pending charges for
sex crimes against S.H. and another child; and 5) that a lesser sentence
would depreciate the seriousness of the crimes. The trial court found one
mitigating circumstance: that Serino had no criminal history. After
weighing the aggravators against the mitigators, the court sentenced Serino
to an aggregate sentence of 385 years, all executed.
Serino is correct to note that a 385-year sentence is outside the
typical range of sentences imposed for child molesting in any reported
Indiana decision.
In several factually similar cases—where there was one victim,
multiple counts of molestation, and lack of a criminal history—the
sentences were revised as being manifestly unreasonable. See Kien v.
State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (consecutive forty-year
sentences for three counts of child molestation ordered to be served
concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (190-
year aggregate sentence for eight counts of child molestation, obscenity
and contributing to the delinquency of a minor reduced to 150 years);
Walker v. State, 747 N.E.2d 536 (Ind. 2001) (consecutive forty-year
sentences for two counts of child molestation ordered to be served
concurrently); see also Bluck v State, 716 N.E.2d 507 (Ind. Ct. App. 1999)
(consecutive sentences totaling seventy-six years remanded for
resentencing).
Affirmed sentences for child molestation were dramatically different.
See Pennycuff v. State, 727 N.E.2d 723 (Ind. Ct. App. 2000)[4] (defendant
convicted of three counts of child molestation, one count of sexual
misconduct with a minor, and two counts of incest, and was sentenced to
twelve years, with two suspended); Cruz Angeles v. State, 751 N.E.2d 790
(Ind. Ct. App. 2001) (multiple victims involved; defendant convicted of
three counts of child molestation and two counts of sexual misconduct with
a minor, sentenced to thirty-five years with five suspended).
The trial court’s sentencing order is a thoughtful one, and we have
given close attention to it, but there is no escaping that the outcome is
at the high end of the sentencing spectrum.
Pertinent to the appropriateness of this outcome was substantial
uncontested testimony from numerous witnesses speaking to Serino’s positive
character traits. Serino was described as “very honest and upstanding,”
“hardworking” and a very “loving,” “encouraging,” and “good” father. (R.
at 1249, 1259, 1270.) Testimony also described Serino as a “spiritual
mentor” and having ministered to other inmates while in custody. (R. at
1251, 1259.) There were also letters written supporting Serino. (R. at
911-36, 1268-79, 1281.) Even the complaining witness and his mother had
positive things to say about Serino. (R. at 689, 750.)
Furthermore, the victim’s own mother was not opposed to a lesser
sentence. She is quoted as saying, “We don’t want him put away for the
rest of his life, but we do want him to pay for what he has done.” (App.
at 681.) She added, “If he gets the minimum, that is fine with us.” Id.
Yet, in fact, Serino is serving a life sentence, and then some. Although
recommendations from a victim’s family as to sentencing and testimonies
regarding good character do not constitute mitigating or aggravating
circumstances of the customary sort; they may properly assist the court in
determining the sentence to be imposed. See Edgecomb v. State, 673 N.E.2d
1185 (Ind. 1996).
In light of the nature of the offense and the character of the
offender, we conclude that Serino’s sentence should be revised to three
consecutive standard terms or 90 years total.
Conclusion
We affirm the conviction and direct the trial court to rearrange the
sentence accordingly.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] These laws were repealed by Pub. L. 148-24 (1976).
[2] Indiana trial judges have sometimes undertaken modest efforts at
creating equal sentences for offenses and offenders who are similar. See
Wooley v. State, 716 N.E.2d 919 (Ind. 1999) (suggesting caution in applying
sentencing grids.)
[3] Ind. Code § 35-50-1-2(c) (emphasis added) states:
Except as provided in subsection (d) or (e), the court shall determine
whether terms of imprisonment shall be served concurrently or
consecutively. The court may consider the aggravating and mitigating
circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a
determination under this subsection. The court may order terms of
imprisonment to be served consecutively even if the sentences are not
imposed at the same time. However, except for crimes of violence, the
total of the consecutive terms of imprisonment, exclusive of terms of
imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the
defendant is sentenced for felony convictions arising out of an
episode of criminal conduct shall not exceed the presumptive sentence
for a felony which is one (1) class of felony higher than the most
serious of the felonies for which the person has been convicted.
[4] This Court reversed the Court of Appeals decision on grounds different
from those discussed here. See Pennycuff v. State, 745 N.E.2d 804 (Ind.
2001) (addressed Miranda and ineffective assistance of counsel issues).