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ATTORNEY FOR APPELLANT David W. Stone IV Anderson, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Nicole M. Schuster Deputy Attorney General Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 48S02-0812-CR-637 LOUIS RICHARD H ARRIS, JR.,

In the

FILED
Dec 11 2008, 1:51 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below) . _________________________________ Appeal from the Madison Circuit Court, No. 48C01-0306-FA-192 The Honorable Fredrick R. Spencer, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 48A02-0606-CR-532 _________________________________ December 11, 2008 Sullivan, Justice.

Defendant Louis Richard Harris, Jr., seeks our review and revision of his sentence imposed for two counts of child molesting. The trial court ordered two consecutive sentences of 50 years each, for a total executed sentence of 100 years. We revise the sentences to be served concurrently.

Background

Richard Louis Harris, Jr., lived with a woman and her daughter, D.G., for approximately ten years. Harris acted as a father to D.G., and she called him "Dad." In June of 2003, the family moved from Missouri to Anderson, Indiana. One night shortly after moving, Harris roused 11-year-old D.G. from her sleep and led her outside to the family's van. There, Harris engaged D.G. in sexual inter course. Days later, on Father's Day, Ha rris requested D.G. engage in sexual intercourse. When D.G. initially refused, Harris told her it would be like a Father's Day gift. Again, Harris engaged D.G. in sexual intercourse. On June 19, 2008, Detective Kevin Smith of the Anderson Police Department, responding to an inquiry about the welfare of D.G. from out of state, interviewed D.G. During the interview D.G. revealed that Harris molested her. The State charged 32-year-old Harris with two counts of child molesting as Class A felonies. The jury found Harris guilty on each count. circumstances and no mitigating circumstances. The trial court found several aggravating

The trial court sentenced Harris to 50 years for each count of child molesting to be served consecutively for an aggregate sentence of 100 years. Harris appealed his sentence and

convictions. In an unpublished memorandum decision, a majority panel of the Court of Appeals affirmed the trial court's decision. Louis Richard Harris, Jr. v. State, No. 48A02-0606-CR-532, slip. op., 881 N.E.2d 733 (Ind. Ct. App. February 27, 2008). Judge Riley dissented. Harris seeks transfer on, and we grant transfer to address, the sentencing issue only. 1 Discussion The General Assembly amended Indiana's sentencing statutes in 2005. Prior to the amendments, Indiana used "presumptive" sentences, standard sentences prescribed by the legislature for a given crime. Francis v. State, 817 N.E.2d 235, 237 (Ind. 2004). A presumptive sentence served as the starting point and allowed the sentencing court limited discretion to
1

In his brief to the Court of Appeals, Harris also contended that (1) the trial court erroneously admitted evidence of a police chase; and (2) he was deprived of a fair trial because of an improper closing argument. The Court of Appeals resolved these issues adversely to Harris. Harris, slip op. at 10, 16. We summarily affirm the decision of the Court of Appeals as to these issues. Ind. Appellate Rule 58(A)(2).

2

enhance a sentence to reflect aggravating circumstances or to reduce a sentence to reflect mitigating circumstances. Id. However, we held this scheme unconstitutional, Smylie v. State, 823 N.E.2d 679, 685 (Ind. 2005), following Blakely v. Washington, 542 U.S. 296 (2004). In response, the General Assembly eliminated fixed presumptive terms in favor of "advisory" sentences for each offense; it declared that a court could impose any sentence within the statutory range set for the crime, "regardless of the presence or absence of aggravating circumstances or mitigating cir cumstances." Ind. Code

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