ILNews

High court divided on revising molester's sentence

Back to TopCommentsE-mailPrintBookmark and Share

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.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

ADVERTISEMENT