Judges disagree over enhanced sentence for child molesting conviction

The Indiana Court of Appeals was divided Thursday over whether a Johnson County man convicted of having sex with a 13-year-old girl deserved to have his sentence enhanced above the 30-year advisory sentence.

Michael Sloan was convicted of Class A felony child molesting for having sex with K.W. at his home. He told her that if he got caught, he would say he was drunk and K.W. raped him. When he was arrested, he told officers that he was intoxicated and tired the night of the alleged offense, and he woke up to someone on top of him. Based on circumstances, he believed K.W. had sex with him. He also argued he did not know she was 13 but believed she was 20 based on what she told him and the age of her friend also at Sloan’s home that night.

Judges Elaine Brown and Michael Barnes decided in Michael W. Sloan v. State of Indiana, 41A01-1312-CR-526, that Sloan’s 35-year sentence, which was enhanced by five years by the trial court, should be reduced to the 30-year advisory sentence. The trial court found as aggravating factors that Sloan did not provide an explanation of why he committed the offense, that he lacked remorse, and that he was in need of correctional treatment.

The trial court erred in basing his sentence on the first two factors, because Sloan’s position throughout the trial was he did not commit the charged offense, but that K.W. assaulted him while he was passed out. Sloan was permitted to maintain his innocence, Brown wrote. In addition, Sloan’s criminal record doesn’t support the trial court’s use of the “in need of correctional treatment” aggravating circumstance.

Judge Cale Bradford dissented, disagreeing with his colleagues regarding Sloan’s lack of remorse. He pointed to evidence of a phone call Sloan made from jail in which he instructed others to kill his victim.

“This conversation … independently demonstrates that Sloan lacked remorse,” Bradford wrote. And because a single aggravating circumstance is adequate to justify an enhanced sentence, he would affirm Sloan’s 35-year sentence.

The majority in a footnote pointed out that the trial judge made no reference to the phone call or recording in sentencing Sloan, and the record is devoid of evidence the judge considered it in any way.