Marlin R. Edwards, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2019
• Docket: 18A-CR-2713
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 29 2019, 10:14 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Thoma Curtis T. Hill, Jr. Deputy Public Defender Attorney General Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marlin R. Edwards, Jr., May 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2713 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause Nos. 02D05-1205-FA-23 02D06-1702-F6-131

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 1 of 11 Case Summary [1] Marlin R. Edwards, Jr., appeals the sentence imposed by the trial court

following his guilty plea to two counts of level 6 felony failure to register as a

sex or violent offender, and the sanction imposed by the trial court upon the

revocation of his probation for class B felony attempted criminal deviate

conduct. He asserts that the trial court abused its discretion during sentencing

and that his aggregate one-and-a-half-year sentence for failure to register is

inappropriate in light of the nature of the offenses and his character. He further

urges that we evaluate the proportionality of the sanction imposed upon the

revocation of his probation pursuant to Article 1, Section 16 of the Indiana

Constitution. We find no abuse of discretion, and we conclude that Edwards

has not met his burden to demonstrate that his sentence is inappropriate.

Moreover, we decline his invitation to evaluate the proportionality of the

sanction imposed upon the revocation of probation. Therefore, we affirm his

sentence and the sanction.

Facts and Procedural History [2] On May 21, 2012, Edwards, while armed with a knife, approached Porshia

Smith on the street. He attempted to take her purse, but it fell on the sidewalk

as he pushed her behind a nearby house. Holding the knife to Smith, Edwards

demanded that she perform oral sex on him and ordered her to pull her pants

down. Smith began screaming, and Edwards fled, but he was apprehended and

arrested shortly thereafter.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 2 of 11 [3] The State charged Edwards with class A felony criminal deviate conduct, class

B felony criminal confinement, class B felony attempted robbery, and class B

felony attempted criminal deviate conduct under cause number 02D05-1205-

FA-23 (“FA-23”). In October 2012, he pled guilty to one count of class B

felony attempted criminal deviate conduct in exchange for the dismissal of the

three additional felony charges. The trial court sentenced him to a twenty-year

term, with ten years executed and ten years suspended, with five years of active

adult probation.

[4] Edwards began serving his suspended sentence on probation in December 2016.

As a condition of his probation, Edwards was required to report any change of

residence and to obtain prior written consent of his probation officer to leave

Indiana. He was also required to register as a sex offender within seventy-two

hours of being released to probation, and to notify the probation department of

any change in his home situation within twenty-four hours. He completed his

initial sex offender registration form with the Allen County Sheriff’s

Department on December 7, 2016, and signed all documents acknowledging

that he understood the registration requirements.

[5] On January 3, 2017, Edwards completed a change of address form. One week

later, a police officer visited that address and was informed that Edwards had

not resided there for five days. On January 19, 2017, a deputy prosecutor

visited that address and was told that Edwards had not resided there for two

weeks. Consequently, on January 26, 2017, the State charged Edwards with

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 3 of 11 one count of level 6 felony failure to register as a sex or violent offender under

cause number 02D06-1702-F6-131 (“F6-131”).

[6] Authorities learned that Edwards had left the jurisdiction to go to Illinois. He

neither notified the Allen County sex offender registry of his departure, nor did

he register with any sex offender registry in Illinois. Edwards stayed in Illinois

until June 2018, when he was finally arrested and brought back to Indiana. On

June 19, 2018, the State filed a petition to revoke Edwards’s probation in FA-23

alleging that Edwards violated his probation by failing to complete the Allen

County Community Control Program, failing to report for supervised

probation, and committing the new offense of failure to register as a sex

offender. The State also added an additional count of level 6 felony failure to

register as a sex or violent offender in F6-131.

[7] During a consolidated hearing on September 10, 2018, Edwards pled guilty to

both counts of level 6 felony failure to register in F6-131, and also admitted to

violating his probation in FA-23. A sentencing hearing was held on October

16, 2018. In F6-131, the trial court sentenced Edwards to concurrent one-and-

a-half-year sentences for the level 6 felonies. As a sanction for the probation

violation in FA-23, the trial court ordered Edwards to serve the entirety of his

previously suspended ten-year sentence. The sentence in FA-23 was ordered to

be served consecutive to the sentences in F6-131. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 4 of 11 Discussion and Decision

Section 1 – The trial court did not abuse its discretion during sentencing. [8] Edwards first argues that the trial court abused its discretion during sentencing

in F6-131. Specifically, he argues that the court failed to identify or find

mitigating factors that were both significant and clearly supported by the record.

We disagree.

[9] Sentencing decisions are left to the sound discretion of the trial court. Smallwood

v. State, 773 N.E.2d 259, 263 (Ind. 2002). We will reverse a sentencing decision

only if the decision is clearly against the logic and effect of the facts and

circumstances before the trial court and all reasonable inferences drawn

therefrom. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g

875 N.E.2d 218. A defendant who alleges that the trial court failed to identify a

mitigating factor has the burden to establish that the proffered factor is both

significant and “clearly supported by the record.” Id. at 493. “When a

defendant offers evidence of mitigators, the trial court has the discretion to

determine whether the factors are mitigating, and it is not required to explain

why it does not find the proffered factors to be mitigating.” Johnson v. State, 855

N.E.2d 1014, 1016 (Ind. Ct. App. 2006), trans. denied (2007). We will not

remand for reconsideration of alleged mitigating factors that have debatable

nature, weight, and significance. Newsome v. State, 797 N.E.2d 293, 301 (Ind.

Ct. App. 2003), trans. denied (2004).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 5 of 11 [10] Edwards claims that the trial court erred by not finding four potential mitigating

factors: (1) his minimal criminal history; (2) his young age; (3) his guilty plea;

and (4) his positive behavior. Regarding his first argument, although a trial

court may consider a defendant’s lack of criminal history to be a mitigating

circumstance, the court is under no obligation to give that circumstance

significant weight. Townsend v. State, 860 N.E.2d 1268, 1272 (Ind. Ct. App.

2007), trans. denied. More importantly, while Edwards’s criminal history may

be limited, he does have a prior, and quite serious, conviction for class B felony

attempted criminal deviate conduct. The trial court did not abuse its discretion

in declining to find Edwards’s minimal, yet serious, criminal history to be a

mitigating factor.

[11] We are similarly unpersuaded by Edwards’s assertion that his age should have

been considered a mitigating factor. We note that “[a]ge is neither a statutory

nor a per se mitigating factor.” Monegan v. State, 756 N.E.2d 499, 504 (Ind.

2001). Moreover, the record indicates that Edwards was in his mid-twenties at

the time he committed the current offenses, and thus was well past the age that

our courts have afforded special consideration. See, e.g., Bostick v. State, 804

N.E.2d 218, 225 (Ind. Ct. App. 2004) (holding that trial court did not abuse its

discretion in failing to give mitigating weight to the age of twenty-four-year-old

defendant). The trial court’s failure to consider Edwards’s age as a significant

mitigating factor was not an abuse of discretion.

[12] As for his guilty plea, it is well settled that a guilty plea “is not necessarily a

mitigating factor where the defendant receives a substantial benefit from the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 6 of 11 plea or where evidence against the defendant is so strong that the decision to

plead guilty is merely pragmatic.” Amalfitano v. State, 956 N.E.2d 208, 212 (Ind.

Ct. App. 2011), trans. denied (2012). The evidence against Edwards was

overwhelming, as he not only failed to comply with the sex offender registration

requirements when he changed residences in Indiana, but he also then left the

state, wholly failing to comply with any registration requirements for more than

a year until he was located and arrested in Illinois. We conclude that

Edwards’s decision to plead guilty was merely pragmatic, and the trial court did

not abuse its discretion in not finding his guilty plea to be a mitigating factor.

[13] Edwards also contends that the trial court abused its discretion in failing to

consider his “positive” behavior (that he was gainfully employed in Illinois)

after his release from incarceration in FA-23 and prior to his arrest in F6-131.

Appellant’s Br. at 22. Edwards admittedly absconded from Indiana for more

than a year in clear violation of his probation in FA-23. All the while, he was

committing the current offenses of failing to register as a sex offender. We fail

to see how this behavior could be considered positive. In sum, Edwards has not

met his burden to establish that the trial court abused its discretion during

sentencing in failing to find the asserted potential mitigating factors.

Section 2 – Edwards has not met his burden to demonstrate that his sentence is inappropriate. [14] Edwards next claims that the one-and-a-half-year aggregate sentence imposed

by the trial court in F6-131 is inappropriate and invites this Court to reduce it

pursuant to Indiana Appellate Rule 7(B), which provides that we may revise a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 7 of 11 sentence authorized by statute if, after due consideration of the trial court's

decision, we find that the sentence “is inappropriate in light of the nature of the

offense and the character of the offender.” 1 The defendant bears the burden to

persuade this Court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006). 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 v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal

role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.

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 under Appellate Rule 7(B) is not whether

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

sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.

Ct. App. 2007).

[15] Regarding the nature of the offense, the advisory sentence is the starting point

that the legislature has selected as an appropriate sentence for the crime

committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

for a level 6 felony is between six months and two and one-half years, with an

11 Edwards appears to concede that the court’s sentencing order upon revocation of his probation in FA-23 is not subject to Indiana Appellate Rule 7(B) review. Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (“A trial court’s action in a post-sentence probation violation proceeding is not a criminal sentence as contemplated by [Rule 7(B)].”)

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 8 of 11 advisory sentence of one year. Ind. Code § 35-50-2-7(b). Here, the trial court

imposed concurrent sentences slightly above the advisory sentence for

Edwards’s failure to register offenses.

[16] As for the nature of these offenses, Edwards’s failures to register were not

simply isolated oversights or occurrences. First, he repeatedly failed to properly

update his place of residence in Allen County, and then failed to notify

authorities that he had moved to Illinois. He continued to live without

registering for more than a year and a half before he was finally arrested.

Although Edwards argues that he posed no actual danger to the community,

this assertion ignores that the purpose of the registration requirement is to

protect the community from potential danger. He has not persuaded us that

sentence revision is warranted based on the nature of his offenses.

[17] Edwards fares no better when we consider his character. The character of the

offender is found in what we learn of the offender’s life and conduct. Croy v.

State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in that assessment is

a review of an offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251

(Ind. Ct. App. 2015), trans. denied (2016). We need look no further than

Edwards’s prior conviction for class B felony attempted criminal deviate

conduct in FA-23. This was an incredibly violent crime committed against a

total stranger, which obviously reflects very poorly on his character. Despite

being given the grace of a partially suspended sentence, Edwards exhibited

complete disregard for the law when, shortly after his release from

incarceration, he violated the terms and conditions of his probation. Under the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 9 of 11 circumstances presented, Edwards has not met his burden to demonstrate that

the one-and-a-half-year aggregate sentence imposed by the trial court is

inappropriate in light of the nature of the offenses and his character.

Section 3 – We decline Edwards’s invitation to evaluate the proportionality of the sanction imposed by the trial court upon revocation of his probation. [18] Finally, Edwards urges us to evaluate the proportionality of the sanction

imposed by the trial court upon the revocation of his probation in FA-23

pursuant to Article 1, Section 16 of the Indiana Constitution, which provides

that “all penalties shall be proportioned to the nature of the offense.” He claims

that imposition of his previously suspended ten-year sentence was unduly harsh

and that this sanction “deserves to be evaluated under Indiana’s constitutional

requirement for proportionality.” Appellant’s Br. at 25. We cannot agree.

[19] Edwards cites no legal authority, and we are unaware of any, that would

indicate that our constitution requires or would even permit such an analysis in

the context of probation revocation. Article 1, Section 16 requires the appellate

court to review whether a sentence is not only within statutory parameters, but

also constitutional as applied to the particular defendant. Knapp v. State, 9

N.E.3d 1274, 1289-90 (Ind. 2014), cert. denied (2015). However, Section 16 is

violated “only when the criminal penalty is not graduated and proportioned to

the nature of the offense.” Id. While the imposition of an initial sentence is

clearly a criminal penalty, it is well understood that probation revocation is a

civil proceeding. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009),

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 10 of 11 trans. denied. If the trial court determines that the conditions of probation have

been violated, the court has the discretion to impose various sanctions,

including ordering execution of all or part of the sentence that was suspended at

the time of the initial sentencing. Ind. Code § 35-38-2-3(h). In short, the

sanction imposed by the trial court during a civil revocation of probation

proceeding is not a criminal penalty subject to a proportionality evaluation, and

therefore we decline Edwards’s invitation.

[20] Edwards admitted to violating the terms of his probation in FA-23, and he

makes no claim that the trial court was without authority to order execution of

his previously suspended ten-year sentence as a sanction. Accordingly, we

affirm the court’s decision to order Edwards to serve his entire ten-year

suspended sentence in FA-23. We further affirm the one-and-a-half-year

aggregate sentence imposed by the trial court in F6-131.

[21] Affirmed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2713 | May 29, 2019 Page 11 of 11