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High court divided on revising molester's sentence

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Two justices dissented from their colleague’s decision to reduce a child molester’s sentence more than 50 years, believing the opinion “blurs the guidance” given in a 2008 opinion regarding sentence reviews.

Chief Justice Randall T. Shepard, Justice Frank Sullivan, and Justice Robert Rucker, who authored the majority opinion in Donald A. Pierce v. State of Indiana, No. 13S04-1101-CR-7, held Donald Pierce’s 134-year sentence should be reduced to 80 years based on the nature of the offense and Pierce’s character. Pierce was convicted of three counts of Class A felony child molesting and one Class C felony count of child molesting involving the molestation of his girlfriend’s daughter while the girlfriend was at work.

The trial court sentenced him to 124 years, suspended 10 years to probation, but then enhanced the sentence by 10 years for the repeat sexual offender adjudication. Pierce had been convicted in 1999 of Class C felony child molesting. The Indiana Court of Appeals remanded with instructions to attach the additional fixed 10-year term to one of his Class A felony sentences for an aggregate term of 134 years.

The high court took Pierce’s case to address his sentence appropriateness claim. The majority found Pierce was in a position of trust, and repeatedly molested the girl for more than a year. However, the three Class A felony counts were identical and involved the same child, wrote Justice Rucker. Pierce’s sentence should be enhanced, but not on each of the Class A felonies or by imposing four consecutive sentences.

The majority also noted that Pierce had no criminal record beyond the prior child molesting conviction. They ordered one of his Class A felony counts be enhanced to 40 years, the other two counts should receive the advisory 30-year sentence, and that he receive the four-year advisory sentence on the Class C felony count. The enhanced sentence will be served concurrently with the others for a total of 70 years, with the 10-year enhancement for the repeat sexual offender adjudication attached to the enhanced Class A felony count for a total of 80 years. They remanded for the trial court to determine if and what extent any portion of the sentence should be suspended to probation.

Justices Steven David and Brent Dickson dissented, deciding that the original sentence should stand, minus the concurrent 10-year enhancement mistakenly given by the trial judge. They were concerned that the majority opinion usurps the high court’s limited role and sets aside the guidance it gave in Cardwell v. State, 859 N.E.2d 1219 (2008), which held 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.”

“Here the trial court judge did exactly what he was supposed to do — exercise discretion within the required statutory and case law framework. I fear this opinion blurs the guidance in Cardwell and is more akin to a second guessing by this Court,” wrote Justice David. “This is a case where the discretion and judgment of the trial court should not be overturned.”

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