We therefore conclude that a sentence of greater than forty years of imprisonment is excessive. We conclude that the fifty-five year sentence which Judge Andrews imposed is clearly mistaken. We remand to the trial court with directions to impose a sentence not to exceed forty years of imprisonment. Because Hodari had not been sentenced on this felony at the time he committed the present offense, this offense did not constitute a prior felony conviction for purposes of presumptive sentencing. Therefore, Hodari was subject to presumptive sentencing as a second felony offender.
Kidnapping is punishable by a maximum term of ninety-nine years of imprisonment.
Sexual abuse of a minor in the first degree is punishable by a maximum term of thirty years of imprisonment. However restraint which is merely incidental to a sexual assault or robbery does not turn the sexual assault or robbery into a kidnapping. Kidnapping occurs when there is significant confinement or movement of the victim of the sexual assault or robbery beyond that necessary to commit the offense. III Standards for Criminal Justice sec. However, Hodari never objected to the playing of this testimony and must therefore establish plain error.