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COA revises child molesting sentence

October 23, 2008

The Indiana Court of Appeals upheld a man's convictions of child molesting, but reduced his sentence because he can't be considered among the worst offenders to justify the maximum sentence.

In Paul L. Mishler v. State, No. 20A03-0712-CR-577, Paul Mishler appealed his convictions of two counts of molesting his girlfriend's grade-school age daughter and his 50-year aggregate sentence. Mishler argued his victim's pretrial statements and videotaped interview shouldn't have been admitted into trial because they were inadmissible under the Protected Person Statute and he didn't have the opportunity to confront the accuser. 

The Court of Appeals disagreed, finding the child's pretrial statements and videotaped interview did fall under the Protected Person Statute because nothing suggests the child was coached into giving her statements and she made the statements within hours after the allegations of the crime came to light, wrote Chief Judge John Baker.

Mishler's argument that he was denied his right to confront the victim fails because the victim testified at the Protected Person hearing, at Mishler's trial, and was available for cross-examination. The ruling in Crawford v. Washington, 124 S.Ct. 1354 (2004), only applies to a non-testifying witness' out-of-court testimonial statement, wrote the chief judge.

The appellate court found the sentence to be inappropriate given the nature of the offenses and Mishler's character. The sentencing range for a Class A felony is 20 to 50 years in prison, with the maximum sentence generally being reserved for the worst offenders. Mishler was sentenced to 50 years in prison on both Class A child molesting counts, with the sentences to run concurrently. However, given the fact he has a limited criminal history and the amount of time that has passed since his juvenile adjudication in 1991 for three acts that would be child molesting if committed by an adult, the Court of Appeals can't categorize Mishler as one of the worst offenders, wrote Chief Judge Baker. The appellate court remanded the case to the trial court to revise the sentence to 38 years on each count to run concurrently.

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