                                                                   FILED
                                                              May 19 2020, 12:53 pm

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




                               IN THE

       Indiana Supreme Court
                  Supreme Court Case No. 20S-CR-315

                        Thomas K. Jackson,
                           Appellant-Defendant,

                                    –v–

                          State of Indiana,
                             Appellee-Plaintiff.


                           Decided: May 19, 2020

     Appeal from the LaPorte Superior Court, No. 46D01-1704-F3-367
                The Honorable Michael S. Bergerson, Judge

        On Petition to Transfer from the Indiana Court of Appeals,
                              No. 19A-CR-796



                           Per Curiam Opinion
Chief Justice Rush and Justice David, Justice Massa, and Justice Goff concur.
      Justice Slaughter dissents, believing transfer should be denied.
Per curiam.

   Thomas K. Jackson admitted to having sexual intercourse with K.S. on
three occasions when she was between 21 and 23 years old, but insisted
the sex was consensual. The issues at trial were whether K.S., who is
“moderately intellectually handicap[ped],” could, and did, legally consent
to sex with Jackson.

  After the first trial on these charges ended in a mistrial when the jury
could not reach a unanimous verdict, in December 2018 a second jury
convicted Jackson of three counts of Level 3 felony rape.1 During the
sentencing hearing, the prosecutor acknowledged that Jackson, then 52
years old, had led a law-abiding life and recommended that the court
impose the advisory sentence of nine years for each of the three counts.
The prosecutor also did not object to a split sentence with part of that time
served on probation. The trial court instead sentenced Jackson to
enhanced consecutive sentences of 12 years on each count, for an executed
sentence of 36 years. Jackson’s earliest possible release date is December 3,
2045, when he will be 79 years old.

    In a divided decision, the Court of Appeals affirmed Jackson’s
convictions and sentence. Jackson v. State, No. 19A-CR-796, 2019 WL
7342368 (Ind. Ct. App. 2019). Judge Brown dissented as to the sentence,
writing that an enhanced prison term for a low-risk offender with no
criminal history such as Jackson “does not reflect the goals of reformation
or rehabilitation.” Id. at *10.

   Jackson petitioned for transfer, which we now grant, vacating the Court
of Appeals decision. Ind. Appellate Rule 58(A). Jackson challenged his
convictions in the Court of Appeals, but on transfer argues only that
imposing consecutive 12-year sentences was excessive absent more
substantial aggravating factors.




1Jackson was acquitted of one count of Level 3 felony rape of K.S. at his first trial, though this
acquittal was not included in the evidence presented at the second trial.



Indiana Supreme Court | Case No. 20S-CR-315 | May 19, 2020                              Page 2 of 4
   The Indiana Constitution authorizes independent appellate review and
revision of a trial court’s sentencing decision. See IND. CONST. art. 7, §§ 4,
6; McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). That authority is
implemented through Indiana Appellate Rule 7(B), which permits this
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. Rule 7(B) “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.” Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). “Ultimately,
our constitutional authority to review and revise sentences boils down to
our collective sense of what is appropriate.” Taylor v. State, 86 N.E.3d 157,
165 (Ind. 2017) (cleaned up), reh’g denied.

   During the sentencing hearing, the prosecutor and trial court identified
two mitigating factors: Jackson’s lack of criminal history and his low risk
to reoffend as identified in the Presentence Investigation Report.
Aggravators included Jackson’s violation of a position of trust and his lack
of remorse—though the trial court conceded that the latter was “consistent
with [Jackson’s] claim of a consensual relationship.” Sentencing Order at
3. The prosecutor recommended that Jackson receive the advisory
sentence for each charge, for a total of 27 years.

   Whether a sentence should be deemed inappropriate “turns on our
sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Pursuant
to our authority under Appellate Rule 7(B), we find that exceeding the 27-
year sentence the prosecutor recommended, absent more significant
aggravating factors, is inappropriate under the circumstances of this case.

   Accordingly, we revise Jackson’s sentence to 27 years, with seven of
those years suspended to probation. We summarily affirm the remainder
of the Court of Appeals opinion, Ind. Appellate R. 58(A)(2), and remand
to the trial court to issue a revised sentencing order consistent with this
opinion.




Indiana Supreme Court | Case No. 20S-CR-315 | May 19, 2020           Page 3 of 4
Rush, C.J., and David, Massa, and Goff, JJ., concur.
Slaughter, J., dissents, believing transfer should be denied.



ATTORNEY FOR APPELLANT
Elizabeth A. Flynn
Braje, Nelson & Janes, LLP
Michigan City, Indiana

ATTORNEY FOR APPELLEE
Josiah J. Swinney
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 20S-CR-315 | May 19, 2020      Page 4 of 4
