ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald W. Pagos Jeffrey A. Modisett
Michigan City, Indiana Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
Kevin Walker, )
)
Appellant (Defendant Below), ) 46S03-0101-CR-39
) in the Supreme Court
v. )
) 46A03-9906-CR-236
STATE OF INDIANA, ) in the Court of Appeals
)
Appellee (Plaintiff Below). )
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Robert W. Gilmore, Jr., Judge
Cause No. 46C01-9707-CF-060
May 15, 2001
SHEPARD, Chief Justice.
During the 20th Century’s major constitutional revisions concerning
the courts, the people of Indiana conferred new responsibilities on the
appellate courts to hear appeals on penalties and “review and revise the
sentence imposed.” Ind. Const. art VII, § 4. Appellant Kevin Walker seeks
relief under this provision from his consecutive forty-year sentences for
twice performing oral sex on a child. The Court of Appeals observed that
the sentence was permitted by the Code and denied relief. We grant
transfer and revise the sentence.
Facts and Procedural History
Kevin Walker babysat six-year-old B.W. from September 1996 through
November 1996. B.W. attended afternoon kindergarten. Walker watched B.W.
in the mornings while B.W.’s parents were at work and his older siblings
were in school.
On two separate occasions, B.W. fell asleep and woke up to find
Walker with his mouth on B.W.’s penis, which B.W. called his “bird.” B.W.
described that his pants were down and that Walker “sucked [his] bird.”
(R. at 338.) He said he could feel Walker’s tongue “wiggling.” (R. at
339.)
B.W.’s mother became suspicious and questioned B.W. about Walker’s
behavior.[1] After B.W. disclosed the molestations, his mother made a
report to the police and took B.W. to the emergency room for an
examination. Although B.W. had no physical injuries, B.W. gave the
emergency room nurse the same information about Walker’s actions.
Walker was convicted on two counts of child molesting, both class A
felonies. The trial court sentenced Walker to enhanced forty-year
sentences on each count (with five years suspended on each) and ordered
them served consecutively. The Court of Appeals affirmed. Walker v.
State, No. 46A03-9906-CR-236 (Ind. Ct. App. Aug. 24, 2000).
Walker’s Claim
Walker urges that his aggregate sentence of eighty years is
manifestly unreasonable. The presumptive sentence for a class A felony is
thirty years. Ind. Code Ann. § 35-50-2-4 (West 1998). Twenty years may be
added for aggravating circumstances and not more than ten years may be
subtracted for mitigating circumstances. Id. The trial court found
several aggravating circumstances and no mitigating circumstances.
On appeal, Walker argued that his crime constituted a class A felony
by virtue of the fact that he was over twenty-one years old, one of several
facts that make the crime a class A felony (others include use of a deadly
weapon and serious bodily injury). He argued that using age alone to
create a class A penalty of eighty years (as opposed, say, to the maximum
of forty years for two class B’s) was manifestly unreasonable.
The Court of Appeals treated this as an assault on the statutory
scheme and affirmed the eighty-year sentence, observing that fixing
penalties is a legislative function, not a judicial one. Id. (citing Riffe
v. State, 675 N.E.2d 710, 712 (Ind. Ct. App. 1996), trans. denied). This
is certainly correct, but not an adequate response to Walker’s right to
seek sentence review under Article VII, § 4.
Sentencing Revision
The judicial amendments to the Indiana Constitution drafted in the
1960s confer a distinct responsibility on the appellate courts: “the power
to review all questions of law and to review and revise the sentence
imposed.” Ind. Const. art. VII, § 4. As Judge Najam of the Court of
Appeals correctly observed, “This authority is found in the text of the
Constitution and is independent from our general appellate jurisdiction.”
Bluck v. State, 716 N.E.2d 507, 516 (Ind. Ct. App. 1999).
Those who framed these provisions had in mind the sort of sentencing
revision conducted by the Court of Criminal Appeals in England. Cooper v.
State, 540 N.E.2d 1216, 1218 (Ind. 1989).
The English statute establishing the Court of Criminal Appeals gave the
power to review and revise sentences:
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
therefor as they think ought to have been passed, and in any other
case shall dismiss the appeal.
Id. (quoting Criminal Appeal Act, 1907, 7 Edward 7, ch. 23, § 4(3)).
Indiana appellate courts have exercised this responsibility over the
last three decades with great restraint, recognizing the special expertise
of the trial bench in making sentencing decisions. We have indicated by
rule that a sentence will be modified only when it is “manifestly
unreasonable,” Ind. Appellate Rule 17(B), a very tough standard to meet.
Still, persons have an appellate right to full consideration of
claims. In 1997, we amended Rule 17(B) to remove even tougher language to
the effect that a sentence was not manifestly unreasonable unless “no
reasonable person” could think so. Judge Najam correctly concluded that
this change “invites more meaningful appellate review.” Bluck v. State,
716 N.E.2d at 515-16. Rule 17(B) currently reads, “The reviewing court
will not revise a sentence authorized by statute except where such sentence
is manifestly unreasonable in light of the nature of the offense and the
character of the offender.” This formulation still means that trial court
decisions are to be affirmed on the great majority of occasions. When this
standard is met, however, the reviewing court should revise the sentence,
as the Court of Appeals did in the recent cases of Biehl v. State, 738
N.E.2d 337 (Ind. Ct. App. 2000), trans. denied, and Mann v. State, 742
N.E.2d 1025 (Ind. Ct. App. 2001), trans. denied.
Walker was convicted on two counts of child molestation for
performing oral sex on a six-year-old boy. Crimes against children are
particularly contemptible. See Singer v. State, 674 N.E.2d 11 (Ind. Ct.
App. 1996). The 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. 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. While the aggravating circumstances warranted an
enhanced sentence, Walker’s aggregate sentence of eighty years is
manifestly unreasonable.
Conclusion
The Court of Appeals otherwise properly rejected the remaining
contentions of error, so we summarily affirm their disposition of those
claims. Ind. Appellate Rule 11(B)(3). We therefore affirm the convictions
and revise the sentences to run concurrently.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without separate opinion.
-----------------------
[1] B.W.’s mother states that she was suspicious of Walker for three
reasons: (1) she believed some items might have been taken from the house,
(R. at 389); (2) Walker continued to bathe B.W. even after he was asked to
stop, (R. at 389, 463); and (3) the school reported numerous absences of
which B.W.’s mother was not aware, (R. at 401, 479).