Bruce A. Sorenson v. State of Indiana ( 2019 )

FILED
Sep 10 2019, 8:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bruce A. Sorenson, September 10, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-565
v. Appeal from the Rush Circuit
Court
State of Indiana, The Honorable David E. Northam,
Appellee-Plaintiff. Judge
Trial Court Cause No.
70C01-1602-FA-134
Najam, Judge.
Statement of the Case
[1] Bruce A. Sorenson appeals one of his fourteen convictions and his 590-year
aggregate sentence after he sexually assaulted two of his daughters nearly every
day from the time they were in diapers to their mid-teens and also sexually
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assaulted one of their childhood friends. He raises the following three issues for
our review:
1. Whether the State presented sufficient evidence to show
that Sorenson committed sexual misconduct with a minor,
as alleged in Count 11.
2. Whether the trial court erred when it determined that
Sorenson was a credit-restricted felon and, as such, that he
can earn only one day of good-time credit for every six
days served.
3. Whether his 590-year sentence is inappropriate in light of
the nature of the offenses and his character.
[2] We reverse Sorenson’s conviction under Count 11, the twenty-year sentence
that was imposed on Count 11, and the trial court’s application of the incorrect
credit-time statutes against all of Sorenson’s sentences except his sentence on
Count 3. As for the balance of Sorenson’s sentence, 570 years executed, we
cannot say that it is inappropriate in light of the nature of the offenses and
Sorenson’s character.
Facts and Procedural History
[3] When he was twenty-seven years old in March of 1995, Sorenson became the
father of his first daughter, T.S. Eighteen months later, in September of 1996,
he became the father of his second daughter, J.S. Sorenson, the two daughters,
and the rest of the family lived in Rushville, initially on First Street but later, in
the early 2000s, they moved to Third Street.
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T.S.
[4] When T.S. “was in diapers,” she would later recall, Sorenson “th[rew] off” her
diaper in her “parent’s bedroom” at the First Street house. Tr. Vol. 3 at 89-90.
T.S. “remember[e]d it very vividly”: the diaper “smacked against the wall
between the dresser and the closet, and then [Sorenson] molested [her]” by
inserting his penis into her anus. Id. at 91. “[T]here [we]re other times” that
she also remembered in that bedroom, such as a time when he “would have
[her] on his waterbed and . . . they had a headboard that had a mirror
and . . . cubbies . . . and if [she] ever picked [her] head up he would shove [her]
head back down in the pillow” because “he obviously didn’t want [her] to see”
that he was “[h]aving sex with [her] anally.” Id.
[5] Sorenson also molested T.S. in the bathroom at the First Street house. He
“would have [T.S.] bend over the toilet and he would molest [her] anally,
and . . . the same with [her] bedroom.” Id. at 92. Sorenson would also
“threaten [T.S.] if [she] didn’t stop crying” or tell her that “he was go[ing to] go
and get [J.S.] and do it to [her] instead . . . .” Id. Although T.S. could not
recall a specific number of times Sorenson had molested her at the First Street
house, she “used to think that the amount [of] freckles [she] had on [her] face
and [her] body was the amount of times [Sorenson had] molested” her there.
Id. at 91.
[6] The molestations continued after the family had moved to the Third Street
house. Sorenson would “sneak[] into [her] bedroom at night” and sodomize
T.S. in her bunk bed. Id. at 93. He “would take [her] into the bathroom
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and . . . have [her] lean over the toilet or the bathtub” to “have sex with [her]
anally.” Id. He would have her put a towel down on his bed, “lean [her] over
the side of the bed[,] and . . . have sex with [her] anally” there. Id. at 94. At
least once, T.S. “wouldn’t stop crying” during Sorenson’s molestation of her,
and he “punched her in the back,” which “hurt.” Id. Sorenson’s attacks on
T.S. gave her hemorrhoids on at least one occasion and made defecation
difficult for her.
[7] Around 2006 or 2007, while at the house of a family friend, Sorenson attempted
to sodomize T.S. but T.S. “begged him to vaginally molest [her] instead of
anally” because “it hurt less.” Id. at 96. Although she later could not recall
another specific instance of Sorenson molesting her vaginally, she “assum[ed] it
[had] happened” because, even though she was only eleven or twelve during the
incident at the friend’s house, she knew “it didn’t hurt as bad when it was
vaginal as when it was anal.” Id. Sorenson told T.S. to never tell anyone of the
molestations or he would hurt T.S.’s mother, sister, or himself. Around the
time T.S. turned fifteen years old, Sorenson stopped molesting her.
J.S.
[8] J.S. lived at the First Street house until she was about four years old. Although
very young at the time, J.S. later would be able to recall at least two occasions
at the First Street house in which Sorenson had molested her. In particular, she
remembered that, on one occasion, Sorenson had called her into his bedroom,
exposed her to pornography on a television in the room, and then “bent [her]
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over the bed” such that she was “face down” on the bed “faced toward the
wall.” Id. at 47. Sorenson then anally penetrated J.S. with his penis.
[9] On a separate occasion, J.S. and T.S. “ran into” their parent’s bedroom late at
night because “it was thundering.” Id. at 48. Their mother was in the bed, but
Sorenson “sent mom to the store to get something.” Id. Once she had left,
Sorenson sodomized J.S. In doing so, he told her that, “if [she] was good,” she
would get a “lunchable” treat later. Id.
[10] One day after the family had moved to the Third Street home, Sorenson took
J.S. to the grocery store. But they did not go back to the family home
afterward. Instead, Sorenson took J.S. to a grandmother’s house in Rushville.
As soon as they were through the threshold of the grandmother’s house,
Sorenson “just bent [J.S.] over right there and did anal penetration” with his
penis. Id. at 49. On another occasion at a grandmother’s house, Sorenson
sodomized J.S. using some leftover “bacon grease as lubrication.” Id. at 61.
[11] J.S. lived at the Third Street home with Sorenson for about ten years. During
that time, Sorenson sodomized J.S. “[j]ust about every day.” Id. at 51-52. On
one occasion, J.S. was lying down on her bed when her mother and T.S. “went
to the store to go get dinner.” Id. at 54. Once they were gone, Sorenson “came
in the bedroom and . . . took [J.S.] to the bathroom,” where he anally
penetrated her. Id. at 54-55. He then “sent [her] back to the bedroom to act like
[she] was still l[ying] down” when her mother and T.S. returned. Id. at 55.
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[12] But most of Sorenson’s abuse of J.S. at the Third Street home occurred in
Sorenson’s bedroom. “[I]t was always anal penetration.” Id. at 56. J.S. was
nearly always “bent over[] on the bed,” with her feet only “kind of touching the
floor” but “not so much” given her size. Id. During the abuse, Sorenson would
“always watch out the window . . . to see if mom would show up.” Id. J.S.
could sometimes tell when Sorenson was about to molest her based on “[t]he
way he would look” at her, which was like
when you haven’t [eaten] for a whole day, and you get home
from work, and you have this plate set down in front of you, and
you feel your stomach growling, and your mouth starts watering;
you get that look in your eyes . . . . [H]e had that same look.
Id. at 59.
[13] During one of Sorenson’s last molestations of J.S., around the time she was
fourteen or slightly older, J.S. remembered a younger sibling being in her
parent’s bedroom “in a bouncy seat.” Id. at 57. J.S. remembered “seeing her . .
. little sister’s face” during the molestation. Id. J.S. felt “broke[n]” in that
moment and resolved that she did not “want that to happen” to her little sister.
Id. at 57-58. J.S. then tried to tell her mother about the molestations, but her
mother “didn’t have a reaction like [J.S.] expected. She was too calm about it.
It was like she already knew.” Id. at 58. J.S.’s mother also “tr[ied] to talk [J.S.]
out of” going to the police. Id. J.S. then began telling Sorenson “no” when he
would try to molest her, and the molestations ceased. Id. at 59, 67.
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C.N.
[14] While living at the Third Street house, J.S. was friends with C.N., a girl who
also lived on Third Street in Rushville and was a few months younger than J.S.
C.N. stayed the night at the Sorensons’ Third Street house on two occasions.
On both occasions, Sorenson molested her.
[15] The first time it happened, C.N. remembered “w[aking] up to [her] pants
down” and Sorenson “going inside [her] . . . vagina” with “[h]is penis.” Id. at
78. C.N. was about eight years old at the time. She was lying “[o]n [her] side,
facing the wall” in J.S.’s bedroom, and could see “toys and clothes and the
wall.” Id. When Sorenson finished, he told her, “Oh, I thought you were my
wife.” Id. at 80. He then walked away and C.N. put her clothes back on. The
second incident was nearly identical to the first.
[16] On a separate occasion about one year later, C.N. went camping with J.S. and
her family. T.S., J.S., and C.N. all went inside a nearby barn and then up into
the barn loft. Sorenson followed the girls there and then molested all three of
them. He “took [C.N.’s] pants down, bent [her] over,” and vaginally
penetrated her with his penis. Id. at 81. He then anally penetrated his
daughters. Sorenson then “just walked away” and “went back to the
campsite.” Id. at 82.
Criminal Proceedings
[17] Around February of 2016, J.S., now nineteen years old, went to the Rushville
Police Department to report Sorenson’s molestations of her, T.S., and C.N.
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Officers contacted T.S. and C.N., who corroborated J.S.’s report and provided
their own details to officers.
[18] The State later filed an amended information against Sorenson that alleged as
follows:
• Count 1, child molesting, as a Class A felony, based on Sorenson’s anal
penetration of J.S. at a grandmother’s house between September 5, 2000,
and September 4, 2010, when J.S. was under fourteen years of age;
• Count 2, child molesting, as a Class A felony, based on Sorenson’s anal
penetration of J.S. at the First Street house, when J.S. was under fourteen
years of age;
• Count 3, child molesting, as a Class A felony, based on Sorenson’s anal
penetration of J.S. at the Third Street house, when J.S. was under
fourteen years of age;
• Count 4, child molesting, as a Class A felony, based on Sorenson’s anal
penetration of J.S. during the camping trip, when J.S. was under fourteen
years of age;
• Count 5, sexual misconduct with a minor, as a Class B felony, based on
Sorenson’s anal penetration of J.S. at the Third Street house during a
time frame in which she was older than fourteen years of age but under
sixteen;
• Count 6, child molesting, as a Class A felony, based on Sorenson’s
sexual intercourse with T.S. at the First Street house, when T.S. was
under fourteen years of age;
• Count 7, child molesting, as a Class A felony, based on Sorenson’s anal
penetration of T.S. at the First Street house, when T.S. was under
fourteen years of age;
• Count 8, child molesting, as a Class A felony, based on Sorenson’s
sexual intercourse with T.S. at the Third Street house, when T.S. was
under fourteen years of age;
• Count 9, child molesting, as a Class A felony, based on Sorenson’s anal
penetration of T.S. at the Third Street house, when T.S. was under
fourteen years of age;
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• Count 10, child molesting, as a Class A felony, based on Sorenson’s anal
penetration of T.S. during the camping trip, when T.S. was under
fourteen years of age;
• Count 11, sexual misconduct with a minor, as a Class B felony, based on
Sorenson’s sexual intercourse with T.S. during a time frame in which she
was older than fourteen years of age but under sixteen;
• Count 12, sexual misconduct with a minor, as a Class B felony, based on
Sorenson’s anal penetration of T.S. during a time frame in which she was
older than fourteen years of age but under sixteen;
• Count 13, child molesting, as a Class A felony, based on Sorenson’s
sexual intercourse with C.N. during the camping trip, when C.N. was
under fourteen years of age;
• Count 14, child molesting, as a Class A felony, based on Sorenson’s
sexual intercourse with C.N. at the Third Street house, when C.N. was
under fourteen years of age;
• Count 15, child molesting, as a Class C felony, based on Sorenson
having fondled or touched C.N. at the Third Street house with the intent
to arouse or satisfy his or C.N.’s sexual desires when she was under
fourteen years of age.
At his ensuing jury trial, T.S., J.S., and C.N. each testified against Sorenson.
The jury then found him guilty on Counts 1 through 14 but not guilty on Count
15.
[19] Following a sentencing hearing, the trial court announced Sorenson’s sentence
as follows:
[T]here is substantial evidence . . . to support . . . the aggravating
circumstances of the significant harm that . . . took place as a
result of . . . these acts . . . . [T]he aggravator of significant harm
is a very substantial one to me. The . . . criminal history of the
Defendant . . . , although it exists, the Court didn’t consider that
a substantial aggravator . . . . The issue of the age of the . . .
children, . . . the ages . . . are included in the actual elements of
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the crimes[;] however, the Court will note that these actions, as
related to [J.S. and T.S.] did start at a very young age . . . very
much[] substantially younger than fourteen, . . . making the
young age an aggravator officially, I think it cannot be ignored
that these children were extremely young when it commenced.
And . . . again, this was a lifetime of . . . pain and suffering and I
think [the ages of the victims] needs to be a general
aggravator . . . . [S]ome of these counts . . . t[ook] place in front
of other children . . . .
***
. . . All of the counts that involve the [camping trip] were not
only done in the presence of each of the other girls, the manner in
which those acts occurred in and of themselves . . . was abusing
the . . . three children . . . together. I find that to be an
aggravator. The . . . threat . . . from the trusted individual,
however, I don’t, [as] again that occurs often in . . . these
scenarios, and . . . I would not consider it a substantial
aggravator. The leaving the jurisdiction [after charges were
filed], again, [is] an aggravator but . . . I’m not considering [it] a
substantial aggravator . . . . The biggie, for me, [is] the position
of trust. . . .
***
. . . I cannot fathom . . . a father, the person that the daughters
can turn to[,] a person of love, a person of trust . . . , this is a
very, very substantial aggravator. As far as the mitigators,
the . . . reference to being remorseful, no, . . . no, he was not
remorseful. On the other hand, he had pl[eaded] not guilty
and . . . certainly there was reference some time ago to a suicide.
The ADHD issues . . . I just do not find there is any factual basis
for the mitigator of . . . mental health. So that brings us to the
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actual sentencing. . . . I find this to be the worst of the worst . . . .
I believe this is the worst of the worst . . . .
Id. at 192-95. The court then sentenced Sorenson to the maximum term for his
convictions on Counts 1 through 12 and to slightly less than the maximum
terms for his convictions on Counts 13 and 14, the two convictions involving
C.N. 1 The court ordered each sentence to run consecutively and to be fully
executed for an aggregate, executed term of 590 years in the Department of
Correction. The court also found Sorenson to be a credit-restricted felon such
that he may receive only one day of good-time credit for every six days served.
Appellant’s App. Vol. 3 at 23. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence Supporting Count 11
[20] Sorenson first asserts on appeal that the State failed to present sufficient
evidence to support his conviction on Count 11, which, again, charged him
with sexual misconduct with a minor, as a Class B felony, based on his sexual
intercourse with T.S. during a time frame in which she was older than fourteen
years of age but under sixteen. That the victim was “at least (14) years of age
but less than sixteen (16) years of age” is a specific element of the offense. Ind.
1
Sorenson does not dispute that the following sentences applied to him: for a Class A felony conviction, a
range of twenty to fifty years with an advisory term of thirty years; and for a Class B felony conviction, a
range of six to twenty years with an advisory term of ten years. See Ind. Code §§ 35-50-2-4(a), -5(a) (2019).
The trial court sentenced Sorenson to the maximum term for each of his Class A and Class B felony
convictions, except for his Class A felony convictions on Counts 13 and 14, for which the court ordered
Sorenson to serve forty years each.
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Code § 35-42-4-9(a)(1) (2009). And “[s]exual intercourse” under that statute
“means an act that includes any penetration of the female sex organ by the male
sex organ.” I.C. § 35-41-1-26 (2009). Sorenson does not challenge the
sufficiency of the evidence underlying any of his other thirteen convictions.
[21] When reviewing the sufficiency of the evidence to support a conviction, we do
not reweigh the evidence or judge witness credibility. E.g., B.T.E. v. State, 108
N.E.3d 322, 326 (Ind. 2018). We consider only the evidence favorable to the
verdict and the reasonable inferences supporting it. Id. We will affirm if a
reasonable trier of fact could have concluded that the defendant was guilty
beyond a reasonable doubt. Id.
[22] The only testimony provided by T.S. regarding acts of vaginal penetration
performed by Sorenson is as follows:
Q. When you were living at this house on Third Street, as you
were growing up, were there ever times that he did things to you
other than anal sex?
A. Most of the time that I remember he did anal sex, but there
is a possibility that he did vaginal, but . . . I cannot remember a
time . . . right off the top of my head[] that he did at this house.
Most of the time . . . it was anal.
Q. Um, I didn’t phrase that very well. Um, during the time
period that you lived at the house on Third Street, but not in the
house on Third Street?
A. Oh, ok. Um, yeah there was one time that I do recollect.
We were at my, we call him Uncle Tom but he’s not really an
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uncle, he’s just like, a family friend . . . , and we were at his
house, and . . . we were in his garage which is where . . . he had
his bed . . . and my dad vaginally, I begged him to vaginally
molest me instead of anally at this house.
Q. Why did you beg him to do that?
A. [Bec]ause it hurt less.
Q. How did you know it hurt less?
A. I’m assuming that it happened to me prior, I’m not [one]
hundred percent sure. I just know it didn’t . . . hurt as bad when
it was vaginal as when it was anal.
Q. Do you remember how old you were when this happened
in that garage?
A. I am not [one] hundred percent sure. I know I was
maybe[] eleven, twelve. . . .
Tr. Vol. 3 at 96-97.
[23] We are obliged to agree with Sorenson that the above testimony fails to
demonstrate any acts of vaginal penetration after, at most, T.S. had turned
twelve years old. Accordingly, the State failed to present sufficient evidence to
support Sorenson’s conviction under Count 11, which, again, required the State
to show that Sorenson had vaginally penetrated T.S. when she was between the
ages of fourteen and sixteen. See I.C. § 35-42-4-9(a)(1) (2009). Thus, we reverse
Sorenson’s conviction and corresponding twenty-year sentence under Count 11.
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Issue Two: Credit-Restricted Status
[24] Sorenson next asserts on appeal that the trial court erred when it found him to
be a credit-restricted felon under Indiana’s post-July 1, 2008, statutory scheme
for credit time. See I.C. §§ 35-50-6-0.1 to -8 (2019) (“the amended statutes”). In
particular, Sorenson contends that the application of the amended statutes to
him is an ex post facto violation.
[25] At all times relevant here prior to July 1, 2008, Indiana’s statutory scheme on
credit time generally provided that “[a] person imprisoned for a crime or
imprisoned awaiting trial or sentencing is assigned to Class I,” and a person
assigned to Class I “earns one (1) day of credit time for each day he is
imprisoned . . . .” I.C. §§ 35-50-6-3, -4 (1994). However, effective July 1, 2008,
the General Assembly fundamentally changed our statutory scheme on credit
time. In particular, our legislature added to that scheme a statute that defined a
“credit restricted felon” in relevant part as follows:
“Credit restricted felon” means a person who has been convicted
of . . . :
(1) Child molesting involving sexual intercourse or deviate
sexual conduct . . . if:
(A) the offense is committed by a person at least twenty-
one (21) years of age; and
(B) the victim is less than twelve (12) years of age.
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I.C. § 35-41-1-5.5 (2008). 2 The 2008 amendments further provided that “[a]
person who is a credit restricted felon and who is imprisoned for a crime or
imprisoned awaiting trial or sentencing is initially assigned to Class IV,” and a
person assigned to Class IV “earns one (1) day of credit time for every six (6)
days the person is imprisoned for a crime or confined awaiting trial or
sentencing.” I.C. §§ 35-50-6-3(d), -4(b) (2008). 3
[26] We have repeatedly held that the retroactive application of the amended
statutes to offenses that were committed prior to the effective date of the
amendments is an ex post facto violation. E.g., Gaby v. State, 949 N.E.2d 870,
882-83 (Ind. Ct. App. 2011) (noting that the State conceded as much); Upton v.
State, 904 N.E.2d 700, 704-05 (Ind. Ct. App. 2009) (also noting that the State
conceded as much), trans. denied. As we explained in Gaby, “the new statute[s]
lengthened the period that the defendant was required to spend in prison,
constricted the opportunity for early release, and thereby made the punishment
for a crime committed before the [their] enactment more onerous than it had
been at the time of enactment.” 949 N.E.2d at 883.
[27] We are again obliged to agree with Sorenson that the trial court erred, at least in
part, when it applied the amended statutes on credit time to each of his
sentences. The offenses that occurred at the First Street house, on the camping
2
This statute is now codified at Indiana Code Section 35-31.5-2-72 (2019).
3
These statutes have since been further amended, see I.C. §§ 35-50-6-3 to -4 (2019), but those additional
amendments are not relevant to our discussion in this appeal.
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trip, and against C.N. were each committed prior to the effective date of the
2008 amendments. Further, T.S. was older than twelve prior to July 1, 2008,
and two of Sorenson’s other convictions are expressly based on T.S. and J.S.
being between the ages of fourteen and sixteen. As such, those offenses could
not be a basis for finding Sorenson to be a credit-restricted felon because the
victims were not less than twelve years old at the time of those offenses. See
I.C. § 35-41-1-5.5 (2008). Thus, the trial court erred when it concluded that the
amended statutes applied to Sorenson and restricted Sorenson’s accumulation
of good-time credit against his sentences on Counts 2, 4, 5, 6, 7, 8, 9, 10, 12, 13,
and 14.
[28] We also agree with Sorenson that the State failed to prove that the offense
charged in Count 1 fell within the post-July 1, 2008, statutory scheme. That
offense alleged that, sometime prior to J.S. turning fourteen in September of
2010, Sorenson had sodomized her at a grandmother’s house. J.S.’s testimony
is not specific as to when that incident occurred; she stated only that it occurred
sometime before she turned fourteen.
[29] But J.S. turned twelve in September of 2008, and, again, the victim must have
been less than twelve at the time of the offense in order for Sorenson to be a
credit-restricted felon based on that offense. Accordingly, to show that
Sorenson was a credit-restricted felon for the offense charged in Count 1, the
State needed to present some evidence that the act underlying that charge
occurred specifically between July 1, 2008, the effective date of the amended
statutes, and J.S.’s twelfth birthday some two months later. The State did not
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do this and instead presented only general testimony that this event might have
occurred on any given day over a ten-year span of time. We conclude that the
State’s evidence, while sufficient to support Sorenson’s conviction for this
charge, was not sufficient to show that he is a credit-restricted felon based on
Count 1. Thus, we also reverse the trial court’s application of the amended
statutes to Sorenson’s sentence for this conviction.
[30] This leaves Sorenson’s sentence for his conviction on Count 3. That Count
generally alleged that Sorenson had sodomized J.S. at the Third Street house
prior to J.S.’s fourteenth birthday. Again, to show that Sorenson was a credit-
restricted felon, the State needed to present some specific evidence that this
offense was committed between July 1, 2008, and J.S.’s twelfth birthday in
September of 2008. The State did so for Count 3: in support of the State’s
charge, J.S. testified that Sorenson had sodomized her at the Third Street house
“[j]ust about every day” over the course of a decade. Tr. Vol. 3 at 51-52; see also
Sharp v. State, 970 N.E.2d 647, 648 n.1 (Ind. 2012). The State’s evidence thus
shows that the acts alleged in Count 3 fall within the post-July 1, 2008,
statutory scheme for credit time, and we affirm the trial court’s application of
the amended statutes to Sorenson’s sentence on Count 3 accordingly.
[31] The question remains whether the proper application of the amended statutes to
Sorenson’s sentence on Count 3 means that only the sentence on that Count is
credit restricted or means that his entire, aggregate sentence is credit restricted.
Our Supreme Court, in an appeal that did not involve an ex post facto issue, has
held that, “[w]here a defendant is convicted of multiple offenses and sentenced
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to consecutive terms, the jail credit is applied against the aggregate sentence.”
Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999). However, the State cites no
authority that applies that general rule when doing so would create an ex post
facto application of the amended credit-time statutes to some of the sentences
but not to others.
[32] We decline to extend Shane’s general pronouncement in such cases, as doing so
would vitiate the ex post facto prohibition discussed above and, in effect,
retroactively apply the amended statutes to offenses and sentences to which
they cannot be applied. Accordingly, and in sum, we reverse the trial court’s
conclusion that Sorenson’s accumulation of good-time credit against his
sentences for his convictions on Counts 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 14 is
limited by the amended statutes, and we remand with instructions for the trial
court to apply the statutes in effect at the time Sorenson committed those
offenses to determine Sorenson’s appropriate, initial class for the accrual of
credit time against those sentences. However, we affirm the trial court’s
conclusion that Sorenson is a credit-restricted felon for purposes of his sentence
on Count 3 and the court’s application of the amended statutes to Sorenson’s
sentence on that Count.
Issue Three: Indiana Appellate Rule 7(B)
[33] Last, Sorenson asserts that his total aggregate sentence is inappropriate in light
of the nature of the offenses and his character. Although the trial court
sentenced Sorenson to an aggregate term of 590 years, in light of our holding in
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Issue One above we consider this argument against his remaining 570-year
aggregate sentence.
[34] As our Supreme Court has made clear:
The Indiana Constitution authorizes appellate review and
revision of a trial court’s sentencing decision. Ind. Const. art. 7,
§§ 4, 6; Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). This
authority is implemented through Indiana Appellate Rule 7(B),
which permits an appellate court to revise a sentence if, after due
consideration of the trial court’s decision, the sentence is found to
be inappropriate in light of the nature of the offense and the
character of the offender. Serino, 798 N.E.2d at 856. The
principal role of such review is to attempt to leaven the outliers.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The burden
is on the defendant to persuade the reviewing court that the
sentence is inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181
(Ind. 2016).
Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam).
[35] Indiana Appellate Rule 7(B) is a “rare” avenue for appellate relief that is
reserved “for exceptional cases.” Livingston v. State, 113 N.E.3d 611, 612-13
(Ind. 2018) (per curiam). Even with Rule 7(B), “[s]entencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)
(quoting Cardwell, 895 N.E.2d at 1222). “Such deference should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
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of good character).” Id. Absent such a “sufficiently compelling” evidentiary
basis, we will not “override the decision of . . . the trial court.” Id.
[36] There is no such evidence in this case. Rather, the evidence here is clear:
Sorenson committed despicable acts against two of his daughters nearly every
day for a decade or more and against one of their childhood friends, and he has
a despicable character. There is no evidence whatsoever, let alone “compelling
evidence,” that portrays “in a positive light the nature of the offense[s].” Id.
There is likewise no evidence whatsoever of “substantial virtuous traits” held by
Sorenson, of “persistent examples of good character” he might have, or of
anything analogous to either of those character traits. Id. We conclude that
Sorenson has failed to carry his burden of persuasion on appeal to meet the
high and exceptional bar of appellate relief under Rule 7(B).
[37] Still, Sorenson asserts that his 570-year aggregate sentence is an “outlier” and
cites as support three cases in which defendants convicted of multiple offenses
of child molestation were sentenced to 125 years or fewer. Appellant’s Br. at
17-19. As the State puts it, “Sorenson does not contest that the nature of his
offense[s] or his character merit a lesser sentence; he merely claims that [his
total aggregate] sentence is too severe . . . .” Appellee’s Br. at 30. We
understand Sorenson’s argument that his sentence might not have a clear
analog in our case law—but neither do the extreme facts underlying his
convictions. Indeed, Sorenson’s argument on this issue is, in essence, that our
trial courts must tailor sentences to case law facts rather than to the facts before
them.
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[38] Sorenson is incorrect. Our trial courts are broadly authorized to tailor
sentences to the facts and circumstances before them. E.g., Stephenson, 29
N.E.3d at 122. And, while we will revise a sentence that is an outlier, the
sentence must also be inappropriate in light of the nature of the offenses and the
defendant’s character as demonstrated by the evidence of record. Ind.
Appellate Rule 7(B); Stephenson, 29 N.E.3d at 122. “[W]e concentrate less on
comparing the facts of the case at issue to others . . . and more on focusing on
the nature, extent, and depravity of the offense . . . and what it reveals about the
defendant’s character.” Guzman v. State, 985 N.E.2d 1125, 1134 (Ind. Ct. App.
2013) (cleaned up). Again, as Sorenson makes no argument on appeal that his
sentence is inappropriate in light of the evidence of record, he has not met his
burden on appeal to show that his sentence is inappropriate.
[39] In any event, Sorenson’s request for a downward revision of his term of years is
an academic one. Sorenson is currently fifty-two years old. Whatever actual
number of years the trial court ordered him to serve is less meaningful than the
outcome that term will unquestionably achieve: Sorenson’s permanent removal
from society. There is no lower number of years we would impose that would
alter that outcome. Accordingly, we affirm his sentence.
Conclusion
[40] In sum, we reverse Sorenson’s conviction on Count 11 and the twenty-year
sentence associated with that conviction. We also reverse the trial court’s
application of the amended statutory scheme on credit time to Sorenson’s
sentences for his convictions under Counts 1, 2, 4 through 10, and 12 through
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14, and we remand with instructions for the court to determine the proper
initial credit time, if any, that should apply to Sorenson’s sentences for his
convictions on those counts based on the statutes in effect at the time he
committed those offenses. Finally, we affirm the trial court’s imposition of an
aggregate sentence of 570 years executed.
[41] Affirmed in part, reversed in part, and remanded with instructions.
Bailey, J., and May, J., concur.
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