MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/31/2017, 10:01 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
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 Matthew J. Elkin Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana
Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marion Longfellow, August 31, 2017 Appellant-Defendant, Court of Appeals Case No. 34A02-1704-CR-817 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause No. 34D04-1605-F1-97
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 1 of 7 Statement of the Case [1] Marion Longfellow appeals his sentence for child molesting, as a Level 4
felony, following a guilty plea. He raises two issues for our review, one of
which we find dispositive, namely, whether his sentence is inappropriate in
light of the nature of the offense and his character.
[2] We reverse and remand with instructions.
Facts and Procedural History [3] On May 13, 2016, M.W., who was then thirteen-years-old, reported to a
Howard County Child Protective Services Caseworker that Longfellow, her
grandfather, had touched her inappropriately. Law enforcement officers
monitored the interview from another room. In her interview, M.W. stated
that, during a visit to Longfellow’s house on May 8, 2016, Longfellow, who
was then eighty-one-years old, had touched her breast on the outside of her
clothing. She moved his hand away but he attempted to touch her a second
time. At that point, M.W. walked out of the garage.
[4] On May 25, an officer with the Kokomo Police Department interviewed
Longfellow regarding M.W.’s allegations. Longfellow admitted that “he placed
his hand on her breast” while in the garage at his house. Appellant’s App. Vol.
II at 25. Longfellow also stated that, while he “has difficulty remembering
details,” he remembered touching her breast. Id. Longfellow claimed that he
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 2 of 7 believed M.W. was “teasing him sexually” and that she “was wanting things to
happen.” Id. 1
[5] On May 31, 2016, the State charged Longfellow with one count of child
molesting, as a Level 1 felony, for touching M.W.’s breast. On December 12,
Longfellow entered into a plea agreement with the State in which he agreed to
plead guilty to the lesser included offense of child molesting, as a Level 4
felony. During a plea hearing on March 17, 2017, Longfellow pleaded guilty to
child molesting, as a Level 4 felony. On that same date, the trial court entered
judgment of conviction and held a sentencing hearing.
[6] According to the presentence investigation report, Longfellow has had four
heart attacks and a light stroke, suffers shortness of breath, has high cholesterol
and high blood pressure, has memory loss, and has heart problems. The report
also indicates that Longfellow takes seven different medications. During the
sentencing hearing, Scott Comfort, an investigator with a medical background,
testified that several of Longfellow’s medications “have known possible side
effects of altering one’s mental state in some way, shape[,] or form,” including
being unable to remember things. Tr. at 52. Comfort further testified that
strokes “can cause impulsive behavioral actions.” Id. Longfellow introduced
1 The interview is included as an attachment to the probable cause affidavit. During the sentencing hearing, the court asked the parties whether there was a factual basis for the guilty plea. The parties provided the following responses: “[The State]: The State would stipulate to the facts contained in the Affidavit of Probable Cause and the attachments thereto to establish a factual basis. [Longfellow]: And the defendant would so stipulate as it relates to those allegations that are specifically Level 4 allegations.” Longfellow did not provide any further clarification as to which facts he was stipulating.
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 3 of 7 as evidence a letter from his neurologist that states he “is at risk for further
stroke” and that the “incarceration of Mr. Longfellow increases his risk of being
unable to receive the standard of care” for an acute stroke. Appellant’s App.
Vol. II at 104.
[7] During the sentencing hearing, the trial court identified as an aggravating
circumstance that Longfellow was in a position of trust and responsibility over
his granddaughter. The court also found as a “slight” aggravating circumstance
that Longfellow had tried to minimize his responsibility or the nature of the
offense by blaming M.W. The court identified as mitigating circumstances
Longfellow’s lack of criminal history and his guilty plea. The trial court
sentenced Longfellow to an executed term of ten years in the Indiana
Department of Correction and ordered him to register as a sex offender. This
appeal ensued.
Discussion and Decision [8] Longfellow contends that his sentence is inappropriate in light of the nature of
the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” The
Indiana Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 4 of 7 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.) as amended (July 10, 2007), decision clarified on reh’g, 875 N.E. 2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 637, 642 (Ind. 2017).
[9] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/31/2017, 10:01 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
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 Matthew J. Elkin Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana
Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marion Longfellow, August 31, 2017 Appellant-Defendant, Court of Appeals Case No. 34A02-1704-CR-817 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause No. 34D04-1605-F1-97
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 1 of 7 Statement of the Case [1] Marion Longfellow appeals his sentence for child molesting, as a Level 4
felony, following a guilty plea. He raises two issues for our review, one of
which we find dispositive, namely, whether his sentence is inappropriate in
light of the nature of the offense and his character.
[2] We reverse and remand with instructions.
Facts and Procedural History [3] On May 13, 2016, M.W., who was then thirteen-years-old, reported to a
Howard County Child Protective Services Caseworker that Longfellow, her
grandfather, had touched her inappropriately. Law enforcement officers
monitored the interview from another room. In her interview, M.W. stated
that, during a visit to Longfellow’s house on May 8, 2016, Longfellow, who
was then eighty-one-years old, had touched her breast on the outside of her
clothing. She moved his hand away but he attempted to touch her a second
time. At that point, M.W. walked out of the garage.
[4] On May 25, an officer with the Kokomo Police Department interviewed
Longfellow regarding M.W.’s allegations. Longfellow admitted that “he placed
his hand on her breast” while in the garage at his house. Appellant’s App. Vol.
II at 25. Longfellow also stated that, while he “has difficulty remembering
details,” he remembered touching her breast. Id. Longfellow claimed that he
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 2 of 7 believed M.W. was “teasing him sexually” and that she “was wanting things to
happen.” Id. 1
[5] On May 31, 2016, the State charged Longfellow with one count of child
molesting, as a Level 1 felony, for touching M.W.’s breast. On December 12,
Longfellow entered into a plea agreement with the State in which he agreed to
plead guilty to the lesser included offense of child molesting, as a Level 4
felony. During a plea hearing on March 17, 2017, Longfellow pleaded guilty to
child molesting, as a Level 4 felony. On that same date, the trial court entered
judgment of conviction and held a sentencing hearing.
[6] According to the presentence investigation report, Longfellow has had four
heart attacks and a light stroke, suffers shortness of breath, has high cholesterol
and high blood pressure, has memory loss, and has heart problems. The report
also indicates that Longfellow takes seven different medications. During the
sentencing hearing, Scott Comfort, an investigator with a medical background,
testified that several of Longfellow’s medications “have known possible side
effects of altering one’s mental state in some way, shape[,] or form,” including
being unable to remember things. Tr. at 52. Comfort further testified that
strokes “can cause impulsive behavioral actions.” Id. Longfellow introduced
1 The interview is included as an attachment to the probable cause affidavit. During the sentencing hearing, the court asked the parties whether there was a factual basis for the guilty plea. The parties provided the following responses: “[The State]: The State would stipulate to the facts contained in the Affidavit of Probable Cause and the attachments thereto to establish a factual basis. [Longfellow]: And the defendant would so stipulate as it relates to those allegations that are specifically Level 4 allegations.” Longfellow did not provide any further clarification as to which facts he was stipulating.
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 3 of 7 as evidence a letter from his neurologist that states he “is at risk for further
stroke” and that the “incarceration of Mr. Longfellow increases his risk of being
unable to receive the standard of care” for an acute stroke. Appellant’s App.
Vol. II at 104.
[7] During the sentencing hearing, the trial court identified as an aggravating
circumstance that Longfellow was in a position of trust and responsibility over
his granddaughter. The court also found as a “slight” aggravating circumstance
that Longfellow had tried to minimize his responsibility or the nature of the
offense by blaming M.W. The court identified as mitigating circumstances
Longfellow’s lack of criminal history and his guilty plea. The trial court
sentenced Longfellow to an executed term of ten years in the Indiana
Department of Correction and ordered him to register as a sex offender. This
appeal ensued.
Discussion and Decision [8] Longfellow contends that his sentence is inappropriate in light of the nature of
the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” The
Indiana Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 4 of 7 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.) as amended (July 10, 2007), decision clarified on reh’g, 875 N.E. 2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 637, 642 (Ind. 2017).
[9] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). In
determining whether a sentence is inappropriate, the advisory sentence “is the
starting point the Legislature has selected as an appropriate sentence for the
crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006).
[10] Longfellow pleaded guilty to a Level 4 felony. Pursuant to Indiana Code
Section 35-50-2-5.5, the sentencing range for a Level 4 felony is two to twelve
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 5 of 7 years. The advisory sentence is six years. As stated above, the trial court
sentenced Longfellow to an executed term of ten years for his Level 4 felony
offense.
[11] Longfellow claims that the ten-year sentence is inappropriate and the trial court
should have imposed a sentence of two years, suspended to probation.
Longfellow asserts that “the true nature of this offense is one where an adult
brushed the breasts of a young lady.” Appellant’s Br. at 17. In his May 25,
2016, interview with police, Longfellow said that on May 8, 2016, he and
M.W. were playing catch outside. He stated that after they went into the
garage he “placed his hand on her breast.” Id. The placing of his hand on her
breast was more than a mere “brush.” Thus, Longfellow admitted to
purposefully and inappropriately touching his minor granddaughter.
[12] We acknowledge the inappropriateness of Longfellow’s choice to touch the
breast of his granddaughter. We also acknowledge the impact Longfellow’s act
had on M.W. and her family. However, we must conclude that the nature of
this offense is no more than what the Indiana General Assembly already took
into consideration when it decided on the elements of the crime. There is no
evidence that Longfellow’s conduct was especially egregious to warrant a
sentence four years above the advisory term and just two years below the
maximum term.
[13] With respect to Longfellow’s character, we likewise conclude that the evidence,
as a whole, is in equipoise. We agree with the trial court that Longfellow
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 6 of 7 attempted to minimize his offense and blame his victim, which reflects poorly
on his character. But it is undisputed that Longfellow also has no criminal
history and took responsibility for his actions when he pleaded guilty. It is also
undisputed that, at the time of sentencing, Longfellow was eighty-two years old
with significant medical issues, including a history of four heart attacks, a
stroke, shortness of breath, high cholesterol, high blood pressure, memory loss,
and heart problems. He also takes seven different medications, many of which
alter his mental state and some of which increase his stroke risk.
[14] After giving due consideration to the trial court’s sentencing decision, the
nature of Longfellow’s offense, and Longfellow’s character, we must conclude
that the ten-year sentence is inappropriate. However, we disagree with
Longfellow that he should receive the minimum sentence of two years, all
suspended to probation. Rather, on remand we direct the trial court to order
Longfellow to serve the advisory sentence of six years executed with the
Indiana Department of Correction.
[15] Reversed and remanded with instructions.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017 Page 7 of 7