ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald W. Pagos Jeffrey A. Modisett
Michigan City, Indiana Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
Kevin Walker, ) ) Appellant (Defendant Below ), ) 46S03-0101-CR-39 ) in the Supreme Court v. ) ) 46A03-9906-CR-236 STATE OF INDIANA, ) in the Court of Appeals ) Appellee (Plaintiff Below ). )
May 15, 2001
On two separate occasions, B.W. fell asleep and woke up to find Walker
with his mouth on B.W.s penis, which B.W. called his bird. B.W.
described that his pants were down and that Walker sucked [his] bird.
(R. at 338.) He said he could feel Walkers tongue wiggling.
(R. at 339.)
B.W.s mother became suspicious and questioned B.W. about Walkers behavior.
See footnote After B.W.
disclosed the molestations, his mother made a report to the police and took
B.W. to the emergency room for an examination. Although B.W. had no
physical injuries, B.W. gave the emergency room nurse the same information about Walkers
Walker was convicted on two counts of child molesting, both class A felonies.
The trial court sentenced Walker to enhanced forty-year sentences on each count
(with five years suspended on each) and ordered them served consecutively. The
Court of Appeals affirmed.
Walker v. State, No. 46A03-9906-CR-236 (Ind. Ct. App.
Aug. 24, 2000).
On appeal, Walker argued that his crime constituted a class A felony by
virtue of the fact that he was over twenty-one years old, one of
several facts that make the crime a class A felony (others include use
of a deadly weapon and serious bodily injury). He argued that using
age alone to create a class A penalty of eighty years (as opposed,
say, to the maximum of forty years for two class Bs) was manifestly
The Court of Appeals treated this as an assault on the statutory scheme
and affirmed the eighty-year sentence, observing that fixing penalties is a legislative function,
not a judicial one. Id. (citing Riffe v. State, 675 N.E.2d 710,
712 (Ind. Ct. App. 1996), trans. denied). This is certainly correct, but
not an adequate response to Walkers right to seek sentence review under Article
VII, § 4.
Those who framed these provisions had in mind the sort of sentencing revision
conducted by the Court of Criminal Appeals in England. Cooper v. State,
540 N.E.2d 1216, 1218 (Ind. 1989).
The English statute establishing the Court of Criminal Appeals gave the power to review and revise sentences:
On appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.
Id. (quoting Criminal Appeal Act, 1907, 7 Edward 7, ch. 23, § 4(3)).
Indiana appellate courts have exercised this responsibility over the last three decades with
great restraint, recognizing the special expertise of the trial bench in making sentencing
decisions. We have indicated by rule that a sentence will be modified
only when it is manifestly unreasonable, Ind. Appellate Rule 17(B), a very tough
standard to meet.
Still, persons have an appellate right to full consideration of claims. In
1997, we amended Rule 17(B) to remove even tougher language to the effect
that a sentence was not manifestly unreasonable unless no reasonable person could think
so. Judge Najam correctly concluded that this change invites more meaningful appellate
review. Bluck v. State, 716 N.E.2d at 515-16. Rule 17(B) currently
reads, The reviewing court will not revise a sentence authorized by statute except
where such sentence is manifestly unreasonable in light of the nature of the
offense and the character of the offender. This formulation still means that
trial court decisions are to be affirmed on the great majority of occasions.
When this standard is met, however, the reviewing court should revise the
sentence, as the Court of Appeals did in the recent cases of Biehl
v. State, 738 N.E.2d 337 (Ind. Ct. App. 2000), trans. denied, and
Mann v. State, 742 N.E.2d 1025 (Ind. Ct. App. 2001), trans. denied.
Walker was convicted on two counts of child molestation for performing oral sex
on a six-year-old boy. Crimes against children are particularly contemptible. See
Singer v. State, 674 N.E.2d 11 (Ind. Ct. App. 1996). The 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. 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. While the aggravating circumstances warranted an enhanced sentence, Walkers
aggregate sentence of eighty years is manifestly unreasonable.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents without separate opinion.