Lead Opinion
A jury found appellant Otha S. Hamilton guilty on one count of molesting a child, as a class A felony. The trial court imposed a sentence of fifty years in prison. We affirm Hamilton’s conviction and revise his sentence.
Facts and Procedural History
Forty-four-year-old Otha S. Hamilton resided in Indianapolis with his wife, who had twelve grandchildren, none of them by a child of Hamilton. Several of the grandchildren would regularly visit at any given time, usually on the weekends.
Sometime between October and December 2009, one grandchild, nine-year-old T.M., stayed overnight at her grandmother’s house so her grandmother could take her to a dentist appointment the next morning. No other grandchildren were present. After arriving, T.M. watched television and had dinner that evening. She later went downstairs to the basement to play pool with Hamilton, her step-grandfather.
After T.M.’s grandmother had gone to bed, Hamilton and T.M. continued playing
In the garage, Hamilton told T.M. to perform oral sex on him. At first, T.M. refused, but Hamilton told T.M. that he would hurt her grandmother if she did not. (Tr. at 36.) Hamilton pushed T.M. to her knees and then pushed her head down. (Tr. at 31-82.) Hamilton’s penis was in T.M.’s mouth for about ten minutes before he ejaculated, causing T.M. to vomit on the table and the floor. (Tr. at 37-38.) T.M. went back inside the house and did not tell anyone right away about the incident.
The incident first came to light about five or six months later. The State charged Hamilton with one count of molesting a child, as a class A felony. Ind. Code § 35^2^-3(a) (2008).
At the sentencing hearing, the State asked the trial court to impose the maximum sentence of fifty years in prison. The State cited T.M.’s emotional response to Hamilton’s threat to T.M.’s grandmother, Hamilton’s history of criminal behavior, T.M.’s being less than twelve years old, Hamilton’s position of care with respect to T.M., and Hamilton’s threats to T.M.’s grandmother. In the State’s view, all these factors constituted aggravating circumstances under Indiana Code § 35-38-l-7.1(a) (2008).
The pre-sentence report revealed that Hamilton had two previous criminal convictions, a misdemeanor DUI in California in 2002 and a felony robbery in Illinois in 1982. (Tr. at 330; P.S.R.) Aside from those two convictions, Hamilton’s criminal record included arrests with unknown dispositions for rape and battery (Indiana, 2006), DUIs (California, 2002; Illinois, 2000), domestic battery (Illinois, 2000; Wisconsin, 1997), and first-degree sexual assault (Wisconsin, 1990). (Tr. at 330; P.S.R.)
Hamilton’s lawyer asked the trial court to impose a sentence of twenty years in prison, the minimum for a class A felony. He argued that the court should give less weight to his criminal history because he was only eighteen at the time of his robbery conviction, and because his only conviction since then was for a misdemeanor. Counsel further argued that any other arrests with unknown dispositions should not receive the same weight as a criminal conviction. Finally, he argued that the court should consider as mitigating circumstances the facts that he had a long work history with few convictions and that he suffered from blood clots and gout, which would constitute a hardship in prison.
The trial court imposed the maximum sentence of fifty years executed time. As a credit-restricted felon assigned to Class IV, Hamilton would therefore have to serve roughly forty-three years in prison instead of the customary twenty-five. Ind. Code §§ 35 — 41—1—5.5(1), 35-50-6-3, -4 (2008).
Hamilton appealed, arguing that the evidence was insufficient to support a conviction, and that a sentence of fifty years was inappropriate given the nature of his offense and his character. The Court of Appeals affirmed the conviction and found that the sentence was appropriate, but Judge Brown dissented as to the sentence. Hamilton v. State,
We grant transfer. The Court of Appeals correctly rejected Hamilton’s sufficiency claim, and we summarily affirm their disposition of that issue. Ind. Appellate Rule 58(A). We therefore turn to his sentencing claim.
A person who commits a class A felony faces a prison sentence of between twenty arid fifty years and a fine not exceeding $10,000. Ind.Code § 35-50-2-4 (2008). A trial court may sentence a defendant to any prison term within the statutory range, but the trial court must clearly set out its reasons for its sentence to enable meaningful appellate review. An-glemyer v. State,
(1) The harm, injury, loss, or damage suffered by the victim of an offense was:
(A) significant; and
(B) greater than the elements necessary to prove the commission of the offense.
(2) The person has a history of criminal or delinquent behavior.
(3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense.
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(8) The person was in a position having care, custody, or control of the victim of the offense.
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(10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.
Ind.Code § 35-38-l-7.1(a).
We first review a trial court’s findings under an abuse of discretion standard. But even when a trial court has not abused its discretion under the sentencing statutes, Article 7, Section 4 of the Indiana Constitution grants this Court the separate power to review and revise a trial court’s sentence in all criminal cases. Under Indiana Appellate Rule 7(B), which implements this authority, we will do so if due consideration of the trial court’s decision convinces us that the sentence was inappropriate in light of the nature of the offense and the character of the offender. In doing so, our main purposes are to “leaven the outliers[] and identify some guiding principles for trial courts ... but not to achieve a perceived ‘correct’ result in each ease.” Cardwell v. State,
When considering the nature of an offense that constitutes a class A felony, we note that the Legislature has established thirty years as the advisory sentence. Ind.Code § 35-50-2-4. Because the sentencing statute no longer requires a trial court to impose a presumptive sentence except when deviating from it on the basis of aggravating or mitigating circumstances, the correlation between those factors and a given sentence will not be as close as under the presumptive sentencing scheme. Pedraza v. State,
Hamilton argues under Indiana Appellate Rule 7(B) that his sentence was excessive given the nature of his offense because the offense was not as severe as it could have been. (Appellant’s Br. at 13.) He points out that T.M. gave no indication that something was wrong until several months after the incident occurred, and that no one else suffered any harm during the incident or its aftermath. (Appellant’s Br. at 13.) He does not call our attention
We have said that a trial court should reserve maximum sentences for classes of offenses that constitute the worst of the worst. Buchanan v. State,
Although a defendant’s criminal history is certainly relevant in sentencing, the chronological remoteness of convictions should factor into determining the appropriateness of a harsher sentence. See Corbett v. State,
Like a defendant’s criminal history, the victim’s age also suggests a sliding scale in sentencing, as younger ages of victims tend to support harsher sentences. See Buchanan,
A harsher sentence is also more appropriate when the defendant has violated a position of trust that arises from a particularly close relationship between the defendant and the victim, such as a parent-child or stepparent-child relationship. See, e.g., Hillenburg v. State, 777 N.E.2d 99 (Ind.Ct.App.2002) (forty-five years per count, served consecutively, when defendant engaged in multiple instances of vaginal, anal, and oral sex with his own daughter, who suffered from mental disability), trans. denied; see also McCoy v. State,
In contrast, more distant relationships tend not to support the same harshness in sentencing. See, e.g., Padgett v. State,
Finally, the nature of a threat to coerce a victim or obtain her silence varies based on the target of the threat and the severity of the threatened harm. Compare Everting v. State,
Here, Hamilton engaged in a single act of sexual misconduct as opposed to a long-term pattern of abuse and violence. Hamilton’s criminal history contained only two convictions, both far removed in time from his current offense and unrelated to sexual misconduct in general. Hamilton’s remaining arrests showed no known dispositions one way or the other, thereby diminishing their weight for sentencing purposes. Although he violated a position of trust, it was not quite one that rose to the level of a stepfather who had close, daily contact with a stepdaughter, and Hamilton’s victim, although still young, was not of tender years. Hamilton’s threat to harm the victim’s grandmother did not involve a specific threat but certainly warrants some weight.
We conclude that Hamilton has made out an adequate case for revision. We emphasize that placing an instance of sexual misconduct along a spectrum of heinous to horrific in no way diminishes the seriousness of any particular offense or the suffering of any particular victim. Instead, it is a necessary part of maintaining the proportionality between sentences and offenses, and of treating like cases alike.
Conclusion
We affirm Hamilton’s conviction but remand with instructions to enter an amended sentence of thirty-five years in prison.
Dissenting Opinion
dissenting.
I respectfully dissent, believing that this is not an exceptional or rare case justifying appellate intrusion into the trial court’s sentencing determination to which we must accord “due consideration” under Indiana Appellate Rule 7(B). Serino v. State,