Sharp v. State
2011 Ind. App. LEXIS 1320
| Ind. Ct. App. | 2011Background
- C.S. (born 1996) alleged Sharp molested him during visits, including touching and oral contact, over a two-year period beginning when C.S. was 10.
- Sharp was charged with Class A felony deviate sexual conduct and Class C felony fondling, covering 2007–2008; trial resulted in convictions on both counts.
- The trial court sentenced Sharp to an aggregate 40 years for the Class A and 6 years for the Class C, to be served concurrently, and designated him a credit restricted felon under Indiana law.
- As a credit restricted felon, Sharp is assigned to Class IV for credit time and earns one day of credit time for every six days served, with limited ability to earn time relief.
- The defense challenged the convictions on double jeopardy grounds, and challenged the sentence as an abuse of discretion and inappropriate under Appellate Rule 7(B).
- The appellate court affirmed, holding no double jeopardy violation, no sentencing abuse, and that a credit restricted felon status cannot be considered under Appellate Rule 7(B) review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy violation | Sharp argues the A and C felonies violate same-offense rules. | State contends offenses have distinct statutory elements and separate evidentiary bases. | No double jeopardy violation; distinct elements and separate evidence support counts. |
| Abuse of discretion in sentencing | Forty-year aggregate sentence overly harsh; trial court erred by considering improper factors. | Court correctly weighed aggravating and mitigating factors; sentence within statutory range. | No abuse of discretion; repeated molestations properly treated as aggravating; mitigators properly rejected. |
| Credit-restricted felon status and Rule 7(B) review | Credit-restricted status should influence proportionality under 7(B). | Credit time is legislative, not a sentencing tool; cannot be weight for 7(B) review. | Credit-restricted felon status cannot be considered in Appellate Rule 7(B) review; sentence affirmed. |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind.1999) (two-step test for same-offense double jeopardy (statutory elements and actual evidence))
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (elements-based test for multiple offenses)
- Brown v. State, 912 N.E.2d 881 (Ind.Ct.App.2009) (confirms elements-evidence distinction for double jeopardy in Indiana)
- Robinson v. State, 835 N.E.2d 518 (Ind.Ct.App.2005) (elements-based approach to multiple offenses)
- Sloan v. State, 947 N.E.2d 917 (Ind.2001) (recognizes distinct evidentiary bases for separate offenses)
- Newsome v. State, 797 N.E.2d 293 (Ind.Ct.App.2003) (repeated molestations as aggravating factor)
- Sullivan v. State, 836 N.E.2d 1031 (Ind.Ct.App.2005) (repeated offenses as aggravation in sentencing)
- Anglemyer v. State, 868 N.E.2d 482 (Ind.2007) (necessity of valid reasons when imposing or weighing aggravating factors)
- Phelps v. State, 914 N.E.2d 283 (Ind.Ct.App.2009) (remorse evaluation by trial court in sentencing)
- Davidson v. State, 926 N.E.2d 1023 (Ind.2010) (recognizes sentencing tools and appellate review standards)
- Rascoe v. State, 736 N.E.2d 246 (Ind.2000) (mitigating factors need not be accepted; trial court not obliged to explain rejection)
- Childress v. State, 848 N.E.2d 1073 (Ind.2006) (standards for appellate review of sentences under 7(B))
- Reid v. State, 876 N.E.2d 1114 (Ind.2007) (Appellate review may revise sentence under Rule 7(B))