Marlin R. Edwards, Jr. v. State of Indiana (mem. dec.) ( 2019 )

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.
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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.
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[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
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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.
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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).
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[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
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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
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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)].”)
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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
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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),
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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.
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