Attorneys for Appellant Attorney for Appellee
David W. Stone, IV Steve Carter
Anderson, Indiana Attorney General of
Indiana
Monika Prekopa Talbot
Deputy Attorney General
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 48S05-0505-CR-208
Edward Dwayne Estes,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Madison Circuit Court, No. 48C01-0308-FA-248,
The Honorable Fredrick R. Spencer, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 48A05-0405-
CR-262
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May 10, 2005
Per Curiam.
Edward Dwayne Estes pleaded guilty to fourteen counts of child
molesting and sexual misconduct with a minor, and one count of
intimidation. The trial court sentenced him to 267 years in jail, which
sentence was affirmed by the Indiana Court of Appeals in an unpublished
decision. We revise the sentence to 120 years.
Background
Estes was charged with multiple counts of child molesting and sexual
misconduct with a minor, and a single charge of intimidation, all arising
out of a series of molestations of two victims over a period of years.[1]
He soon pleaded guilty to fifteen counts. There was no plea agreement as
to the sentence or the amount of jail time. The trial court identified six
aggravating circumstances, finding that Estes: had been in a position of
trust with the victims; caused the victims extensive trauma; needed
correctional and rehabilitative treatment; had committed multiple acts of
molestation; had abused the two victims in multiple ways; and had
physically abused others. As mitigating circumstances, the trial court
considered Estes’s expression of remorse, his minimal criminal history, and
his guilty plea. The trial court rejected as mitigating circumstances
Estes’s own childhood abuse and his depression.
The trial court found the aggravating circumstances outweighed the
mitigating circumstances. That court sentenced Estes to maximum enhanced
terms for the Class A felonies and ordered five of those served
consecutively. The trial court imposed presumptive sentences for the Class
B and Class C felonies, and ordered some served consecutively. The trial
court imposed the maximum enhanced sentence for the Class D intimidation
felony and ordered that sentence served consecutively. The result was a
sentence of 267 years in jail.[2]
On appeal, Estes argued the trial court had not properly balanced the
aggravating and mitigating circumstances and the sentence was excessive,
but the Court of Appeals affirmed in Estes v. State, No. 48A05-0405-CR-262,
slip op., (Ind. Ct. App. Dec. 8, 2004). We grant Estes’s petition to
transfer jurisdiction of the case and review the sentence.
Discussion
Estes first argues the trial court improperly found and balanced
mitigating and aggravating circumstances. Indiana’s determinate sentencing
scheme under which Estes was sentenced provided for a standard or
“presumptive” sentence, from which the trial court could add or subtract
time based on findings of aggravating or mitigating circumstances. See
Serino v. State, 798 N.E.2d 852, 854 (Ind. 2003).[3] Parts of this scheme
were rendered unconstitutional by Blakely v. Washington, 124 S.Ct. 2531
(2004) and its progeny. See Smylie v. State, 823 N.E.2d 679 (Ind. 2005).
We need not address Estes’s arguments on this point, however, because the
trial court might have imposed essentially the same 267 years of jail time
by ordering other sentences served consecutively, see I.C. § 35-50-1-2, and
a court’s authority to order consecutive sentences was not affected by
Blakely. See Smylie, 823 N.E.2d at 686.
Subject to the legal parameters, sentencing determinations are
generally within the discretion of the trial court. Ruiz v. State, 818
N.E.2d 927, 928 (Ind. 2004). Nonetheless, Article VII, Section 4 of the
Indiana Constitution provides that “the Supreme Court shall have, in all
appeals of criminal cases, the power to . . . review and revise the
sentence imposed.” We “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).
Estes committed the offenses against two victims, so at least one
consecutive sentence is appropriate. See Serino, 798 N.E.2d at 857. But
the 267-year sentence is well outside the typical range of sentences
imposed for child molesting in reported Indiana decisions. See Serino, 798
N.E.2d at 857-58 (citing cases). There are mitigating circumstances.
Estes had no substantial criminal history and he expressed remorse. His
prompt admissions and guilty plea saved judicial resources and spared the
victims from trial. See, e.g., Ruiz, 818 N.E.2d at 929; Francis v. State,
817 N.E.2d 235, 237-38 (Ind. 2004).
We conclude that in light of the nature of the offense and the
character of the offender, Estes’s sentence should be revised to four
consecutive standard terms for a Class A felony, a total of 120 years, and
that the other sentences should be served concurrently. The trial court
may select which sentences shall be served consecutively.
Conclusion
We grant transfer, and remand with directions for the trial court to
rearrange the sentence accordingly.
Shepard, C.J., and Dickson, Sullivan, Boehm and Rucker, JJ., concur.
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[1] Ind. Code § 35-42-4-3 (child molesting); I.C. § 35-42-4-9 (sexual
misconduct with a minor); I.C. § 35-45-2-1 (intimidation).
[2] The record suggests some discrepancies between the felony
classification of the offenses charged in the charging documents, the
charges to which Estes pleaded guilty, the trial court’s oral pronouncement
of sentence, and the trial court’s chronological case summary. For
example, Count XVI was charged as a Class C felony and the chronological
case summary reflects sentencing for that felony classification, but the
trial court pronounced a sentence for a Class A felony. In addition, the
Court of Appeals slip opinion states at page 7 that the trial court imposed
the maximum enhanced sentences for a Class B felony and a Class C felony,
but the record shows presumptive sentences were imposed. We need not
address this, however, because both parties have stated in their respective
appellate briefs that a sentence of 267 years was imposed.
[3]For example, the presumptive sentence for child molesting as a class A
felony is thirty years, to which may be added as much as twenty years for
aggravating circumstances or as much as ten years subtracted for mitigating
circumstances. See I.C. § 35-50-2-4. Similarly, the presumptive sentence
for a Class B felony is ten years, with not more than ten years added and
not more than four years subtracted, I.C. § 35-50-2-5; the presumptive
sentence for a Class C felony is four years, with not more than four years
added and not more than two years subtracted, I.C. § 35-50-2-6; and the
presumptive sentence for a Class D felony is one and one-half years, with
not more than one and one-half years added and not more than one year
subtracted. I.C. § 35-50-2-7.