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Divided appeals court reduces child molester’s sentence

May 20, 2019

A divided Indiana Court of Appeals panel cut a child molester’s sentence in half after it concluded that the length of his sentence was inappropriate due to his dementia and incompetence, among other things.

Harry Truman Smith was convicted in Clark Circuit Court of one count of Level 1 felony child molesting and one count of Level 4 felony child molesting after he fondled his then-7-year-old niece.

Before trial, two competency evaluations conducted on Smith revealed that he at one point could read and write but was no longer able to do so after he sustained a traumatic brain injury from a severe motor vehicle accident. He was also evaluated to have “significant memory deficits” due to dementia that rendered him incompetent to stand trial.

The same was concluded by two court-appointed physicians who examined Smith. They noted that “it would be relevant as to whether [Smith] had been charged with previous crimes of a similar nature prior to his development of dementia or the dementia may have led to impairment in judgement [sic] and impulse control that played a role in the current proceedings.”

Both physicians also concluded that Smith was not competent to stand trial; however, Smith agreed to plead guilty to the convictions, both as Level 4 felonies. Smith’s counsel stated in part that Smith’s “mental faculties have failed” and his time at a mental health hospital “certainly played a major part … in the crime.”

Smith ultimately received a 16-year sentence for his convictions, splitting the appellate panel in its memorandum decision, Harry Truman Smith v. State of Indiana (mem. dec.), 18A-CR-2493.

On appeal, Smith argued that his offenses were “not the worst of these types of offenses” defined under Indiana statute, and that they happened within a short time frame. He further contended that being a 69-year-old man with only a 7th-grade education, a traumatic brain injury, dementia and no criminal record, proved his sentence was inappropriate based on his character.

Judge Elaine Brown and Judge Paul Mathias agreed, and their majority opinion thus reversed the trial court. They found Smith’s sentence to be inappropriate in light of the nature of the offenses and his character based on those factors.

The majority also concluded Smith’s overall risk assessment score using the Indiana risk assessment system placed him in the low risk to reoffend category. The appellate court therefore remanded for an amended sentence of eight years per count, with two years suspended, to be served concurrently after finding Smith had led “a law-abiding life for a substantial period before the commission of the offenses.”

But Judge Melissa May dissented from the majority in a separate opinion, arguing that she would not reduce Smith’s sentence as there was “nothing inappropriate” about it.

“While the record demonstrates Smith has dementia and cognitive deficits from traumatic brain injury, there is no suggestion that these memory or processing issues were responsible for Smith being unable to appreciate the heinous wrongfulness of his touching his seven-year-old great-niece’s vagina on multiple occasions,” May wrote.

“Were there such evidence,” May continued, “I would question whether Smith should have been advised to plead guilty, but I would not question that society should be protected from Smith for at least sixteen years.”

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