Attorneys for Appellant
Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer Daniel Jason Kopp
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
Appellee (Plaintiff below).
In April, 2001, M.S. reported the abuse to a relative, and her mother
filed a report with the police department. The State later charged Neale
with one count of child molesting, a Class A felony, and a jury
found Neale guilty as charged.
The trial court sentenced Neale to 50 years in the Indiana Department of
Correctionthe maximum sentence for a Class A felony
See footnote with 10 years suspended. Neale
appealed his se
ntence, contending that it was inappropriate in light of the nature
of the offense and his character. In an unpublished decision, a divided
panel of the Court of Appeals affirmed the trial courts sentence. Neale
v. State, No. 01A02-0311-CR-983, slip op. at 9 (Ind. Ct. App. June 11,
2004). Neale sought, and we granted, transfer. 822 N.E.2d 971 (Ind.
The standard or presumptive sentence prescribed by the Legislature for Class A felony
child molesting is thirty (30) years, with not more than twenty (20) years
added for aggravating circumstances or not more than ten (10) years subtracted for
mitigating circumstances. Ind. Code § 35-50-2-4 (2004). If the court relies
on aggravating or mitigating circumstances to deviate from the presumptive sentence, it must
(1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason
why each circumstance has been determined to be mitigating or aggravating; and (3)
articulate the courts evaluation and balancing of circumstances. Francis v. State, 817
N.E.2d 235, 237 (Ind. 2004) (citing Wooley v. State, 716 N.E.2d 919, 929
(Ind. 1999)). When a defendant challenges on appeal a sentence more severe
than the presumptive, the reviewing court will examine the record to insure that
the sentencing court explained its reasons for selecting the sentence it imposed.
Id. (citing Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002)).
At Neales sentencing hearing, the court identified three aggravating circumstances: (1) the Defendants
extensive criminal history; (2) the nature and circumstances of the crime committed (more
specifically, the facts that the Defendant committed the crime while residing in the
home of the victim and that the victim described in her testimony multiple
acts of intercourse); and (3) the fact that the Defendant abused his position
of trust as the victims stepfather
See footnote to take a
dvantage of the victim.
The court identified four mitigating circumstances: (1) the crime was the result of
circumstances unlikely to recur; (2) the Defendant is likely to respond to probation
and counseling; (3) the Defendant stated that he was willing to make restitution
to the victim for the injury; and (4) the Defendants imprisonment would pose
an undue hardship on the Defendants wife and their daughter. The court
balanced these aggravating and mitigating circumstances and sentenced Neale to 50 years in
the Department of Correction, with 10 years suspended.
In Buchanan I, 699 N.E.2d 655, the defendant was convicted of carjacking, kidnapping,
criminal confinement, and robbery and was sentenced to 100 years imprisonment. This
Court, finding that the fully enhanced, consecutive nature of the sentence [was] excessive,
revised the sentence to 80 years. Buchanan I, 699 N.E.2d at 657.
Neale argues that [t]his Court found the sentence to be manifestly unreasonable
because no physical injury was suffered by the victim and the property loss
sustained was minimal. Pet. to Trans. at 3 (quoting
Buchanan I, 699
N.E.2d at 657). However, when considered in context, this Courts mentioning that
there was a lack of physical injury to the victim was merely dicta:
This crime was one in which, fortunately, no physical injury was suffered by
the victim and in which the property loss sustained was minimal. Buchanan
I, 699 N.E.2d at 657. In fact, this Court went on to
say that [t]he absence of physical injury does not mean that the [trial]
court should not impose an enhanced sentence. Id. Furthermore, in Buchanan
I, the sentence in question was based on convictions unrelated to sexual abuse.
In Walker, the defendant was convicted of two counts of child molesting, both
Class A felonies. The trial court, finding several aggravating circumstances but no
mitigating circumstances, sentenced the defendant to two consecutive 40-year sentences for a total
of 80 years. Walker, 747 N.E.2d at 537. Finding that the
defendants enhanced sentence was manifestly unreasonable, this Court explained that [t]he trial court
found a number of aggravating circumstances, including committing the crime while on probation
and fleeing the jurisdiction. Still, the trial court did not find a
history of criminal behavior. Moreover, the two separate counts of child molestation were
identical and involved the same child. Id. at 538. This Court
continued: Additionally, there was no physical injury. Although the absence of physical injury
does not bar an enhanced sentence, this is some distance from being the
worst offense or the most culpable offender. Id. As in Buchanan
I, the Courts mention of the absence of physical injury is coupled with
a declaration that this fact does not bar an enhanced sentence.
Finally, in Buchanan II, 767 N.E.2d 967, the defendant was sentenced to the
maximum sentence of 50 years for Class A felony child molesting. The
defendant appealed, arguing that the imposition of his sentence was manifestly unreasonable and
not proportional to the nature of his offense. Id. at 970.
This Court, in considering whether the defendants sentence was unreasonable, again discussed the
fact that there was an absence of physical harm. And again, this
discussion was in the context of determining whether the defendant was within the
class of offenders for whom the maximum possible sentence is appropriate. Id.
at 974. Furthermore, this Court specifically noted:
While the absence of [brutality] does not in any way lessen the severity
of the crimes as such, and thus does not constitute a mitigating factor
justifying a reduction or suspension of the presumptive sentence, the presence of aggravated
brutality distinguishes the defendants who commit such acts and justifies a substantially aggravated
term where it is present. We do not by this observation debase
the seriousness of [sexual assault crimes] themselves. Nor do we suggest that
the absence of collateral brutality prevents the imposition of an enhanced sentence.
Id. at 973 n.4 (quoting Fointno v. State, 487 N.E.2d 140 (Ind. 1986)) (first emphasis in original; second and third emphases added).
In each of the cases Neale cites, we considered the fact that the defendant did not cause physical harm to the victim when determining whether he was within the class of offenders for whom the maximum sentence is appropriate. But in each case, we explicitly stated that the absence of physical harm is not an automatic mitigating circumstance such that it would require a lesser sentence than would otherwise be imposed.
Neales criminal history, while extensive, consists only of misdemeanors; most of them were
alcohol related. These included, driving while suspended, operating a vehicle while intoxicated,
public intoxication, and battery. In Ruiz v. State, we held that convictions
for alcohol-related offenses are at best marginally significant as aggravating circumstances in considering
a sentence for a Class B felony.
818 N.E.2d 927, 929 (Ind.
. We also noted that [s]ignificance varies based on the gravity, nature
and number of prior offenses as they relate to the current offense.
Id. (quoting Wooley v. State, 716 N.E.2d 919, 929 (Ind. 1999). Here,
there was neither drinking nor driving involved in the acts of child molesting,
and the latter is manifestly different in nature and gravity from the
Id. We do not find the aggravating weight of Neales criminal
history sufficient to justify the maximum sentence for a Class A felony.
In affirming the sentence imposed by the trial court, the Court of Appeals
paraphrased Appellate Rule 7(B) (quoted in full supra) as follows: A sentence
that is authorized by statute will not be revised unless it is inappropriate
in light of the nature of the offense and the character of the
offender. Neale v. State, No. 01A02-0311-CR-983, slip op. at 4 (Ind. Ct.
App. June 11, 2004) (citing Foster v. State, 795 N.E.2d 1078, 1092 (Ind.
Ct. App. 2003), trans. denied). While accurate as a matter of logic,
i.e., the rule does not authorize a sentence to be revised unless it
is inappropriate in light of the nature of the offense and the character
of the offender, we believe that phrasing the rule in the negative suggests
a greater degree of restraint on the reviewing court than the rule is
intended to impose. When we made the change to the language of
the rule referred to in Footnote 3, we changed its thrust from a
prohibition on revising sentences unless certain narrow conditions were met to an authorization
to revise sentences when certain broad conditions are satisfied. Cf. App. R.
7(B) at 181 (West 2002) (repealed effective Jan. 1, 2001) (The Court shall
not revise a sentence authorized by statute unless the sentence is manifestly unreasonable
in light of the nature of the offense and the character of the
offender.) with App. R. 7(B) at 185 (West 2005) (The Court may revise
a sentence authorized by statute if, after due consideration of the trial courts
decision, the Court finds that the sentence is inappr
opriate in light of the
nature of the offense and the character of the offender.).
Judge Riley noted in her dissent in the Court of Appeals decision, the
trial court in this case found several mitigating circumstances, although it assigned them
little weight. Neale, slip op. at 10-11. We agree with her
analysis and conclusion that the appropriate sentence for Neale is 40 years, with
10 years suspended to probation.
Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., dissents, believing
the due consideration of the trial courts decision required by Indiana Appellate Rule
7(B) should restrain appellate revision of sentences to only rare, exceptional cases, and
that this is not such a case.