Lori L. Cinelli v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 21, 2017
• Docket: 32A05-1702-CR-269
• Status: Published

Opinion

MEMORANDUM DECISION FILED Sep 21 2017, 9:52 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery A. Earl Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lori L. Cinelli, September 21, 2017 Appellant-Defendant, Court of Appeals Case No. 32A05-1702-CR-269 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Karen M. Love, Appellee-Plaintiff. Judge Trial Court Cause No. 32D03-1602-F2-6

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017 Page 1 of 7 Case Summary and Issue [1] Lori Cinelli pleaded guilty to one Level 2 felony and two Level 3 felony counts

of dealing in methamphetamine. Cinelli appeals her ten-year sentence, raising

the sole issue of whether the trial court’s order that she serve eight years of her

sentence at the Indiana Department of Correction (“DOC”) is inappropriate.

Concluding her placement was not inappropriate, we affirm.

Facts and Procedural History [2] On three separate occasions in late 2015 and early 2016, Cinelli sold

methamphetamine while in the presence of a one-year-old and a three-year-old

child. The State charged Cinelli with one count of Level 2 felony dealing in

methamphetamine, two counts of Level 3 felony dealing in methamphetamine,

two counts of Level 5 felony possession of methamphetamine, and one count of

Level 6 felony possession of methamphetamine.

[3] In November 2016, Cinelli reached a plea agreement with the State and pleaded

guilty to one count of Level 2 felony dealing in methamphetamine and two

counts of Level 3 felony dealing in methamphetamine. The plea agreement

provided the State would dismiss the remaining charges and Cinelli’s sentence

would be determined by the trial court, “subject to a maximum of [ten years] on

each count served concurrently at the [DOC].” Appellant’s Appendix, Volume

2 at 53.

Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017 Page 2 of 7 [4] The trial court accepted the plea agreement and proceeded to a sentencing

hearing. Because the minimum allowable sentence for a Level 2 felony is ten

years and the agreement called for the sentences to be concurrent, the parties

and the trial court agreed the issue was whether any of the sentence would be

suspended or served in community corrections. The State advocated for a fully

executed sentence. Cinelli argued her sentence was best served in community

corrections so she could care for her mother, continue working part-time, and

participate in substance abuse treatment. The trial court found Cinelli’s

criminal history and the fact she knew her buyer was addicted to

methamphetamine to be aggravating factors. The trial court found Cinelli’s

mental health issues, substance abuse, and difficult childhood to be mitigating

factors but did not give her acceptance of responsibility by pleading guilty

substantial weight given the amount of evidence possessed by the State.

[5] The trial court sentenced Cinelli to ten years with eight years executed in the

DOC and the remainder suspended to home detention. Cinelli now appeals.

Discussion and Decision [6] Cinelli acknowledges that she received the minimum sentence allowed by law

and the plea agreement, but asks us to reduce the portion of her sentence to be

executed at the DOC, alleging her placement is inappropriate in light of the

nature of her offenses and her character.

Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017 Page 3 of 7 I. Standard of Review [7] The Indiana Constitution authorizes appellate review and revision of criminal

sentences. Ind. Const. art. 7, §§ 4, 6. If, after due consideration of the trial

court’s decision, we find the sentence inappropriate in light of the nature of the

offense and the character of the defendant, we may revise the sentence

accordingly. Ind. Appellate Rule 7(B). In assessing whether a sentence is

inappropriate, appellate courts may take into account whether a portion of the

sentence is suspended or otherwise crafted using the variety of sentencing tools

available to the trial judge. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010). The defendant bears the burden of persuading this court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[8] The location where a sentence is to be served is an appropriate focus for

application of our review and revise authority. Biddinger v. State, 868 N.E.2d

407, 414 (Ind. 2007). However, it is “quite difficult for a defendant to prevail

on a claim that the placement of his or her sentence is inappropriate.” Fonner v.

State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). We consider both prongs of

Rule 7(B), the nature of the offense and the character of the defendant, in our

assessment of the inappropriateness of a sentence. Connor v. State, 58 N.E.3d

215, 219 (Ind. Ct. App. 2016). Additionally, “[a] defendant challenging the

placement of a sentence must convince us that the given placement is itself

inappropriate.” Fonner, 876 N.E.2d at 344.

Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017 Page 4 of 7 II. Inappropriate Sentence [9] Cinelli pleaded guilty to three counts of dealing in methamphetamine, the most

serious being a Level 2 felony. “The advisory sentence is the starting point the

Legislature selected as appropriate for the crime committed.” Fuller v. State, 9

N.E.3d 653, 657 (Ind. 2014). The sentencing range for a Level 2 felony is

between ten and thirty years, with an advisory sentence of seventeen and one-

half years. Ind. Code § 35-50-2-4.5.

[10] Cinelli argues the nature of her offense was less severe than the State contended

at sentencing. The “nature of the offense” prong compares the defendant’s

actions with the required showing to sustain a conviction under the charged

offense. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013). Cinelli

sold methamphetamine in the company of children on three separate occasions.

The methamphetamine totaled more than 14 grams, a substantial amount

considering the requirement for a Level 2 felony dealing in methamphetamine

charge is 10 grams. See Ind. Code § 35-48-4-1.1(e)(1). Cinelli then pleaded

guilty to three counts of dealing in methamphetamine and received the

minimum possible sentence.

[11] In support of her argument, Cinelli downplays the fact she knew the buyer was

addicted to drugs because “it is a stretch to imagine that the clear majority of

buyers in illegal drug transactions are not addicted to drugs[,]” and points to the

fact that Cinelli was addicted to drugs herself. Appellant’s Brief at 9. Of

course, this is true in most drug transactions and therefore is likely a

Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017 Page 5 of 7 consideration the legislature made when defining the crime and its

consequences. Cinelli also argues although the offense was committed in front

of children, they were likely too young to be “cognizant of what was

occurring.” Id. Even if we thought the only danger of drug transactions in front

of children is that they may be “cognizant of what was occurring,” we would

still find Cinelli’s arguments on this point unpersuasive. We cannot say there is

anything about the nature of her crimes that makes eight years executed in the

DOC inappropriate.

[12] In considering Cinelli’s character, it is appropriate to examine her criminal

history. See Bryant v. State, 841 N.E.2d 1154, 1156-57 (Ind. 2006). Cinelli’s

criminal history consists of four misdemeanor convictions, numerous arrests,

and probation violations have been filed against her during each of her two

prior placements on probation. Criminal history and frequent contact with the

criminal justice system reflects negatively on one’s character. See, e.g.,

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (concluding that

although the defendant’s criminal history was not aggravating “to a high

degree,” it was still a poor reflection on his character).

[13] Cinelli argues she needs mental health and substance abuse treatment which

can be best provided in the context of home detention. She does not

demonstrate, however, that she can only obtain this treatment outside the

DOC. Thus, Cinelli’s argument is essentially one in favor of a more

appropriate sentence, not an explanation of why her sentence is inappropriate.

That is not the question posed by Appellate Rule 7(B). See Fonner, 876 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017 Page 6 of 7 at 344 (noting “the question under Appellate Rule 7(B) is not whether another

sentence is more appropriate; rather, the question is whether the sentence

imposed is inappropriate”). We find nothing about Cinelli’s character

rendering her sentence inappropriate.

Conclusion [14] After our review of the record and due consideration of the trial court’s

decision, we cannot say that Cinelli’s placement in the DOC for eight years of

her ten-year sentence is inappropriate. Her sentence is therefore affirmed.

[15] Affirmed.

Riley, J., and Pyle, J., concur.

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