Possible improper use of risk assessment in sentencing not enough for remand

A man convicted of child molesting and incest will not get a chance to have his 99-year sentence reduced. The Indiana Court of Appeals ruled Wednesday that even though the trial court may have abused its discretion, the sentence was not inappropriate.

In David Williams v. State of Indiana, 67A01-1302-CR-87, the Court of Appeals affirmed Williams’ conviction of eight counts of Class A felony child molesting and one count of Class B felony incest. It also affirmed his sentence to an aggregate term of 99 years.

Williams argued that the trial court abused its discretion in sentencing by not considering his lack of criminal history but, instead, finding his score on the Indiana Risk Assessment System to be an aggravating factor.

The Court of Appeals noted that historically the absence of a criminal history has been viewed as a mitigating factor. However, in Kimbrough v. State, 979 N.E.2d 625 (Ind. 2012), the Indiana Supreme Court retreated from that position.

There, the Supreme Court held the trial court did not abuse its discretion by failing to consider as a significant mitigating factor that the defendant had no prior criminal history. The Court of Appeals interpreted that ruling to mean since a lack of criminal history is no longer significant, the trial court is not obligated to give weight to that fact.

On Williams’ contention about the IRAS score, the Court of Appeals noted while the trial court did not directly state it used the score as a aggravating element, it did draw attention to the score as indicating Williams is at high risk of reoffending.

An evidence-based offender assessment score should not be considered as either an aggravating or mitigating factor or used to determine the length of the sentence, the COA asserted. And, to the extent that the trial court may have relied on the IRAS score, that was improper.

However, the Court of Appeals ruled it does not have to remand for resentencing because it did not find the 99-year term to be inappropriate.   

“Although we have the power to review and revise sentences, the principal role of our review should be to attempt to level the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve what we perceive to be a ‘correct’ result in each case,” Judge Paul Mathias wrote for the court.