Pierce v. State

949 N.E.2d 349, 2011 Ind. LEXIS 572, 2011 WL 2567545
CourtIndiana Supreme Court
DecidedJune 29, 2011
Docket13S04-1101-CR-7
StatusPublished
Cited by77 cases

This text of 949 N.E.2d 349 (Pierce v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pierce v. State, 949 N.E.2d 349, 2011 Ind. LEXIS 572, 2011 WL 2567545 (Ind. 2011).

Opinions

[351]*351RUCKER, Justice.

A jury convicted Donald A. Pierce on four counts of child molesting, three as Class A felonies and one as a Class C felony. The jury also adjudicated Pierce a repeat sex offender. The trial court sentenced Pierce to four consecutive sentences for a total term of 124 years and enhanced the sentences by ten years for the repeat sex offender adjudication. Based on the nature of the offense and character of the offender, we revise the sentence to a total term of 80 years.

Background

Pierce dated J.W.’s mother and after several months, moved into the home J.W. and her mother shared. Pierce and J.W.’s mother planned to marry. In April of 2006, when J.W. was ten years old, Pierce began molesting her when her mother was at work. According to J.W. the molestation occurred approximately every other weekend for a year and included sexual intercourse, oral sex, and fondling. The State charged Pierce with three counts of Class A felony child molesting and one count of Class C felony child molesting. The State also alleged that Pierce was a repeat sexual offender1 based on a 1999 conviction for Class C felony child molesting. A jury found Pierce guilty as charged and also adjudged him a repeat sexual offender. The trial court sentenced Pierce to forty years on each of the three Class A felony convictions, four years on the Class C felony conviction, and ordered the sentences to run consecutively for a total term of 124 years. Suspending ten years to probation, the trial court also enhanced the sentence by ten years for the repeat sexual offender adjudication and ordered this sentence to be served concurrently.

Pierce appealed raising several claims including the appropriateness of his 124-year sentence. The State cross-appealed contending the trial court erred in ordering Pierce to serve the repeat offender enhancement concurrently. In an unpublished memorandum decision the Court of Appeals agreed with the State. It affirmed in part the judgment of the trial court, remanding this cause with instructions to attach the additional fixed ten-year term to one of Pierce’s Class A felony sentences for an aggregate term of 134 years. Pierce v. State, No. 13A04-0908-CR-480, 2010 WL 4253698 (Ind.Ct.App. Oct. 28, 2010). We now grant Pierce’s petition to transfer to address his appropriateness claim. In all other respects we summarily affirm the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A)(2).

Discussion

The advisory sentence for a Class A felony is thirty years, the maximum sentence is fifty years, and the minimum sentence is twenty years. Ind.Code § 35-50-2-4. The advisory term for a Class C felony is four years with the minimum and maximum terms being two and eight years, respectively. I.C. § 35-50-2-6. [352]*352The trial court “shall determine whether terms of imprisonment shall be served concurrently or consecutively” and may consider the sentencing aggravators and miti-gators in making this determination. I.C. § 35 — 50—1—2(c); Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010) (recognizing that choosing whether sentences will run concurrently or consecutively is among the trial court’s many options when determining the length of a sentence). The trial court here imposed enhanced and consecutive sentences primarily on the basis of Pierce’s previous child molestation conviction. Tr. at 694. Pierce does not contend that his sentence does not comply with statute or case law, but rather submits that the total executed term is excessive and should be revised pursuant to Indiana Appellate Rule 7(B).

Even where a trial court has not abused its discretion in sentencing, the Indiana Constitution authorizes independent appellate review and revision of a trial court’s sentencing decision. See Ind. Const, art. 7, §§ 4, 6; Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007). Appellate courts implement this authority through Indiana Appellate Rule 7(B), which provides that we may revise a sentence if “after due consideration of the trial court’s decision” we find “the sentence is inappropriate in light of the nature of the offense and the character of the offender.” App. R. 7(B). We have recognized that “appellate review should focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008).

Concerning the nature of the offense, the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed. Anglemyer, 868 N.E.2d at 494. As indicated earlier the advisory sentence for Class A felony child molesting is thirty years. But crimes against children are particularly contemptible. Monroe v. State, 886 N.E.2d 578, 580 (Ind.2008). And Pierce was in a position of trust with J.W., preying on her when she was in his care while her mother was at work. He molested this young child repeatedly for over a year. Thus the trial court enhanced the advisory sentence on each of the Class A felonies by ten years. However, the three counts of Class A felony child molestation were identical and involved the same child. See Walker v. State, 747 N.E.2d 536, 538 (Ind.2001) (declaring defendant’s consecutive sentence of eighty years for two counts of Class A felony child molesting manifestly unreasonable in part because “the two separate counts of child molesting were identical and involved the same child”). The nature and circumstances of Pierce’s crime coupled with his position of trust with the child victim is sufficiently aggravating to warrant an enhanced sentence. But, we do not believe this necessarily justifies enhancing each of the Class A felonies and imposing four consecutive sentences. “Whether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences.... ” Cardwell, 895 N.E.2d at 1225. See also Harris v. State, 897 N.E.2d 927, 930 (Ind.2008) (revising consecutive child molesting sentences to run concurrently where there was only one victim); Smith v. State, 889 N.E.2d 261, 264 (Ind.2008) (same); Monroe v. State, 886 N.E.2d 578, 580 (Ind.2008) (same). Cf. Sanchez v. State, 938 N.E.2d 720, 723 (Ind.2010) (acknowledging that “generally, multiple victims justify the imposition of enhanced and consecutive sentences”).

As for the character of the offender, we note that other than the prior Class C molestation conviction, Pierce has no crim[353]*353inal record. We acknowledge that the current offenses are similar in nature to the prior offense, but we note that the prior offense occurred nearly eight years before the instant offenses. See Smith,

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Cite This Page — Counsel Stack

Bluebook (online)
949 N.E.2d 349, 2011 Ind. LEXIS 572, 2011 WL 2567545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-state-ind-2011.