Attorneys for Appellant Attorneys for Appellee
Paula M. Sauer Steve Carter
Danville, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appeal from the Hendricks Superior Court, No. 32D03-0011-CF-229
The Honorable Judge Karen M. Love
On Petition To Transfer from the Indiana Court of Appeals, No. 32A01-0201-CR-35
November 19, 2003
When Serino became divorced in 1996, they began spending regular time with Serino
and his adopted son. The first inappropriate conduct occurred during l997, when
S.M. was eleven. Serino began giving him backrubs and by summer progressed
to rubbing S.M.s penis beneath the boys underwear. Such conduct proceeded over
Serino and his teenage son moved to Wisconsin during the summer of 1998.
They returned in the fall of 1999 when Serino began a new
job at the schools in Owen County. S.M.s mother and her sons
moved to a new home in Plainfield about the same time. By
January 2000 the two parents began dating, the families were spending most weekends
together, and Serino became a father figure to S.M.
The bad news was that Serino also took up once again molesting the
boy. Serino and the boy slept in a bed together during overnight
visits, and Serino fondled S.M. and sucked his penis, forced S.M. to do
the same, and eventually began demanding that S.M. perform anal sex on him.
Though S.M.s mother had no concern about the sleeping arrangements, Serinos aunt
objected, and the mother began asking that the sleeping arrangements change, at least
when overnights were under her roof.
These activities sometimes occurred under especially distasteful circumstances. Serino and his son
commonly went to church on Wednesday evenings, and they sometimes picked up S.M.
to go with them. Overnight visits after church turned into sexual abuse
The parents romantic relationship ended in the fall of 2000, and it appeared
that S.M. became increasingly sensitive to the mention of Serinos name. About
two months later, he told his mother about Serinos molestations. This led
to the charges of twenty-six counts, the jury verdict, and the sentence.
On appeal, Serino challenged his conviction and sentence on multiple grounds. The
Court of Appeals affirmed. Serino v. State, No. 32A01-0201-CR-35, (Ind. Ct. App.
March 7, 2003). We granted transfer to consider Serinos appeal of his
sentence. We summarily affirm the decision of the Court of Appeals concerning
Serinos other claims of error. Ind. Appellate Rule 58 (A).
Indeterminate sentencing arrangements, for example, provide for sentences stated as a range of
years, such as ten to twenty years. Blacks Law Dictionary 1367 (7th
ed. 1999). Indiana used this system until 1977, so that, for example,
the punishment for child molesting used to be either one to five years
for molesting children between twelve and sixteen years old, or two to twenty-one
years for molesting children under twelve years of age. Ind. Code Ann.
§ 35-1-54-4 (Michie 1975).
Under indeterminate sentencing systems, the actual number of years of incarceration was decided
by officials of the executive branch, typically based on the behavior of the
prisoner. Under Indianas old system, it was the task of the parole
board to determine when an offender was ready for release.
Hon. Louis B. Meyer, North Carolinas Fair Sentencing Act: An Ineffective Scarecrow,
28 Wake Forest L. Rev. 519, 557 n.249 (1993).
A leading alternative to such arrangements has been determinate sentencing, under which the
court imposes a penalty stated as a specific number of years. The
current version of this system employed in Indiana provides for a standard sentence,
from which the trial judge may add or subtract based on findings of
aggravating or mitigating circumstances. Thus, the standard sentence for the crime of
child molesting as a class A felony is thirty years, to which the
trial judge may add as much as twenty or subtract as much as
ten years. Ind. Code Ann. § 35-50-2-4 (West 1998). One could
characterize this system as one in which judicial discretion is guided within a
range. It thus produces widely varying sentences for similar crimes, especially when
the prosecutor elects to file multiple charges arising out of the same basic
Of course, a respectable legal system attempts to impose similar sentences on perpetrators
committing the same acts who have the same backgrounds. While it is
widely recognized that this is extremely difficult to achieve in any court system
that makes thousands of such decisions annually, serious efforts to achieve it continue.
In the federal system, judges are bound by a scheme of guidelines
in which points are assigned for various factors relevant to sentencing. The
2003 sentencing guidelines, prepared by the Office of Special Counsel of the United
States Sentencing Commission, are promulgated pursuant to the PROTECT Act, Pub. L. 108-21.
Several states have undertaken similar exercises. Georgia adopted a comparable but non-binding
guideline to reserve the hardest bed for the hardest criminal. Walter C.
Jones, Panel recommends sentencing guidelines, The Augusta Chronicle, December 2, 1999. Likewise,
Oregon adopted an indeterminate structure and added a parole matrix. It reasoned,
[a] corrections system that overruns its resources can increase the risk to life
and property within the system and to the public. See Oregon Sentencing
Guidelines, (2003) available at
http://www.ocjc.state.or.us/SG.htm. Arizona adopted the indeterminate sentencing structure, but
later opted to revise the scheme to a presumptive term. Arizona v.
Wagner, 976 P.2d 250, 255 (Ariz. Ct. App. 1998) (citing Rudolph J. Gerber,
Criminal Law of Arizona, ch. 7, at 702-08 (2nd ed. 1993)).
Several states have abandoned indeterminate sentencing and instead adopted a Truth-in-Sentencing system to reduce the likelihood of confusion and uncertainty regarding a particular sentence. In 1995, Ohio offered greater protection for victims of crime, broadened discretion for trial judges in sentencing, limited appellate review of sentencing, and abolished the traditional good time concept. See Ohio Bar Association (2003), available at http://www.ohiobar.org/. The Congress has fostered this movement by adding provisions in federal grant programs that promote state adoption of Truth-in-Sentencing laws. See, e.g., 42 U.S.C. § 13704 (2002) (lists eligibility and exceptions for Truth-in-Sentencing incentive grants); see also 42 U.S.C. § 13703 (2002) (applies Truth-in-sentencing law to violent offender incarceration).
As for serious grid systems, Massachusetts used one scheme whereby the grid cell represented the governing offense and the classification of the criminal history to determine an appropriate sentence for the offender. See http://www.state.ma.us/courts/formsandguidelines/index.html. Michigan also followed a system to reduce unwarranted disparities in sentencing decisions. See People v. Hegwood, 636 N.W.2d 127, 131 (Mich. 2001). Likewise, Minnesota adopted similar guidelines to promote proportionality and uniformity in sentencing. See Minnesota Sentencing Guidelines Commission, (2003), available at http://www.msgc.state.mn.us/goals_of_the_guidelines.htm (explains goals of sentencing guidelines). The American Law Institute has a major project under way to develop a model for sentencing commissions and guidelines. A.L.I., Model Penal Code: Sentencing, Preliminary Drafts No. 2, June 3, 2003.
The federal system is the one most well known, though complaints about it
abound. See Stephen J. Schulhofer, Assessing the Federal Sentencing Process: The Problem
Is Uniformity, Not Disparity, 29 Am. Crim. L. Rev. 833, 861-63 (1992) (discussing
the Guidelines' inflexibility toward departures); see also Paul J. Hofer, The Reason Behind
the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines,
40 Am. Crim. L. Rev. 19, 20 (2003) (discussing the Guidelines failure to
express a coherent philosophy of punishment).
The debate about the best way to devise effective sentences is current and
local. The Indiana General Assembly has recently created a Sentencing Policy Study
Committee, part of whose mission will be to assure that sentencing laws protect
the public and promote fairness and uniformity in sentencing. See H.B. 1145,
113th Gen. Assem., 1st Reg. Sess. (Ind. 2003), P.L. 140.
Appellate review of such sentences proceeds on a basis somewhat different from the
methods that apply to other issues that typically are the subject of a
criminal appeal. The drafters of the present judicial article of the Indiana
Constitution provided in Article 7, section 4: The Supreme Court shall have,
in all appeals of criminal cases, the power to review all questions of
law and to review and revise the sentence imposed. Likewise, the constitution
authorizes the Court of Appeals to review sentences to the extent provided by
Supreme Court rules. Ind. Const. art. VII, § 6.
While Indiana legislative history is frequently sparse, the legislative history of these provisions
is available and fairly informative. The framers of the constitutional reform of
which section 4 was a part provided explicitly for reference to certain historical
materials to assist in interpreting its meaning: The report of the Judicial
Study Commission and the comments to the article contained therein may be consulted
by the Court of Justice to determine the underlying reasons, purposes, and policies
of this article and may be used as a guide in its construction
and application. Ind. Const. art. VII, Schedule (Michie 1978 ed.).
The Commission's report describes the origin and scope of the power to review
and revise sentences contained in section 4: The proposal that the appellate
power in criminal cases include the power to review sentences is based on
the efficacious use to which that power has been put by the Court
of Criminal Appeals in England. Report of the Judicial Study Commission 140
(1967). The English statute establishing the Court of Criminal Appeals set forth
that court's power to review and revise sentences as follows:
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 therefore as they think ought to have been passed, and in any other case shall dismiss the appeal. Criminal Appeal Act, 1907, 7 Edward 7, ch. 23 § 4(3).
Cooper v. State, 540 N.E.2d 1216, 1218 (Ind. 1989).
For much of the period after the voters adopted this provision of the
state constitution, this Court constrained review of sentences under a rule that provided
that appellate courts could not revise sentences unless the sentence was manifestly unreasonable
in light of the offense and the offender.
See Ind. Appellate Rule
7(B) (2002). This barrier was so high that it ran the risk
of impinging on another constitutional right contained in Article 7, that the Supreme
Courts rules shall provide in all cases an absolute right to one appeal.
Ind. Const. art. VII, § 6.
Accordingly, we have taken modest steps to provide more realistic appeal of sentencing
issues. The present rule says: 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 inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B).
This formulation places central focus on the role of the trial judge, while
reserving for the appellate court the chance to review the matter in a
climate more distant from local clamor. The rule recited above became effective
on January l, 2003, well after Serino was sentenced, but the Court of
Appeals usefully applied this standard to the present appeal, as it has recently
done in other cases.
First, when the perpetrator commits the same offense against two victims, enhanced and
consecutive sentences seem necessary to vindicate the fact that there were separate harms
and separate acts against more than one person.
See Tobar v. State,
740 N.E.2d 106 (Ind. 2000) (defendant convicted of three murders and sentenced to
Second, the prosecutor may elect to charge multiple aspects of the same event
as separate counts defined by separate criminal statutes.
See, e.g., Winn v.
State, 748 N.E.2d 352 (Ind. 2001) (defendant convicted of rape, criminal deviate conduct,
criminal confinement, battery, and criminal recklessness).
Where the charging has been particularly muscular, this may create the theoretical possibility
of very long sentences. The only statutory restraint on sentencing under such
circumstances appears in Ind. Code § 35-50-1-2(c), which, except for crimes of violence,
limits the total sentence for acts arising out of a single episode of
criminal conduct to the presumptive sentence for a felony one class higher than
the highest felony charged.
In imposing the sentence here, the trial court found five aggravating circumstances:
1) Serinos need for correctional or rehabilitative treatment; 2) that he was in
a position of trust with the victim and exploited that trust; 3) that
Serino was not charged with all crimes committed against the child; 4) that
Serino had other pending charges for sex crimes against S.H. and another child;
and 5) that a lesser sentence would depreciate the seriousness of the crimes.
The trial court found one mitigating circumstance: that Serino had no
criminal history. After weighing the aggravators against the mitigators, the court sentenced
Serino to an aggregate sentence of 385 years, all executed.
Serino is correct to note that a 385-year sentence is outside the typical
range of sentences imposed for child molesting in any reported Indiana decision.
In several factually similar caseswhere there was one victim, multiple counts of molestation,
and lack of a criminal historythe sentences were revised as being manifestly unreasonable.
See Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (consecutive
forty-year sentences for three counts of child molestation ordered to be served concurrently);
Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (190-year aggregate sentence
for eight counts of child molestation, obscenity and contributing to the delinquency of
a minor reduced to 150 years); Walker v. State, 747 N.E.2d 536 (Ind.
2001) (consecutive forty-year sentences for two counts of child molestation ordered to be
served concurrently); see also Bluck v State, 716 N.E.2d 507 (Ind. Ct. App.
1999) (consecutive sentences totaling seventy-six years remanded for resentencing).
Affirmed sentences for child molestation were dramatically different.
See Pennycuff v. State,
727 N.E.2d 723 (Ind. Ct. App. 2000)
(defendant convicted of three counts of
child molestation, one count of sexual misconduct with a minor, and two counts
of incest, and was sentenced to twelve years, with two suspended); Cruz Angeles
v. State, 751 N.E.2d 790 (Ind. Ct. App. 2001) (multiple victims involved; defendant
convicted of three counts of child molestation and two counts of sexual misconduct
with a minor, sentenced to thirty-five years with five suspended).
The trial courts sentencing order is a thoughtful one, and we have given
close attention to it, but there is no escaping that the outcome is
at the high end of the sentencing spectrum.
Pertinent to the appropriateness of this outcome was substantial uncontested testimony from numerous
witnesses speaking to Serinos positive character traits. Serino was described as very
honest and upstanding, hardworking and a very loving, encouraging, and good father.
(R. at 1249, 1259, 1270.) Testimony also described Serino as a spiritual
mentor and having ministered to other inmates while in custody. (R. at
1251, 1259.) There were also letters written supporting Serino. (R. at
911-36, 1268-79, 1281.) Even the complaining witness and his mother had positive
things to say about Serino. (R. at 689, 750.)
Furthermore, the victims own mother was not opposed to a lesser sentence.
She is quoted as saying, We dont want him put away for the
rest of his life, but we do want him to pay for what
he has done. (App. at 681.) She added, If he gets
the minimum, that is fine with us.
Id. Yet, in fact,
Serino is serving a life sentence, and then some. Although recommendations from
a victims family as to sentencing and testimonies regarding good character do not
constitute mitigating or aggravating circumstances of the customary sort; they may properly assist
the court in determining the sentence to be imposed. See Edgecomb v.
State, 673 N.E.2d 1185 (Ind. 1996).
In light of the nature of the offense and the character of the
offender, we conclude that Serinos sentence should be revised to three consecutive standard
terms or 90 years total.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.