Melvin P. Owens v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 24 2018, 10:16 am
regarded as precedent or cited before any
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
P. Stephen Miller Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melvin P. Owens, July 24, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-451
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1709-F5-281
Vaidik, Chief Judge.
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Case Summary
[1] Melvin Owens appeals his four-year sentence for fraud on a financial
institution, a Level 5 felony. He contends that the trial court relied on an
improper aggravator when sentencing him and that his sentence is
inappropriate in light of the nature of the offense and his character. We affirm.
Facts and Procedural History
[2] On September 22, 2017, Melvin Owens entered a branch of Old National Bank
in Fort Wayne, Indiana, and, using the “ID card” of a Kentucky man,
withdrew a sum of $5000 in cash and $2500 in cashier’s checks from the man’s
bank account. Appellant’s App. Vol. II p. 9. Shortly thereafter, Owens arrived
at a second Old National Bank branch in town and attempted to withdraw
money from the same account, but he was told that the account had been
closed. After Owens left the second branch, the bank sent a fraud-alert notice
with an attached photo of Owens to all other area branches stating that he was
part of an identity-theft ring associated with compromised Kentucky accounts.
That same day, Owens entered a third Old National Bank branch in town and,
using a “photo ID” of an Illinois man, attempted to withdraw money. Id. The
branch workers recognized Owens, so they stalled him and called the police.
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Owens was arrested and charged with fraud on a financial institution, a Level 5
felony.1 Owens pled guilty as charged. Id. at 30.
[3] At the sentencing hearing, Owens said he committed the crime because he
could not financially provide for his children. Tr. Vol. II p. 15. Owens also
submitted letters from people in his community, including his pastor and
daughter, that reflected on his character and his value in the community. The
trial court acknowledged the letters submitted on his behalf. The trial court
then identified mitigating and aggravating circumstances. As for mitigators, the
court found that Owens expressed remorse and accepted responsibility for his
actions by pleading guilty. Id. at 15-16. However, the court noted that Owens
“seem[ed] to keep minimizing what it is that [he] did due to financial
hardship.” Id. at 16. The court found the following aggravating circumstances:
Owens’s pending criminal charges in Kentucky; his extensive criminal history
from 1976 to present, including convictions in Michigan for weapons-
concealed, manslaughter, robbery-unarmed, assault with intent to do great
bodily harm less than murder, possession of a controlled substance, and retail
fraud; and the fact that he had previously received the benefit of rehabilitative
treatment during both long-term and short-term periods of incarceration. Id. at
16-17. The trial court sentenced Owens to four years in the Indiana
1
Because Owens used a Kentucky ID card at the first two branches, he was also charged separately in
Kentucky for identity theft and for being a persistent felony offender. Appellant’s App. Vol. II p. 47.
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Department of Correction, one year above the advisory sentence. See Ind. Code
§ 35-50-2-6(b).
[4] Owens now appeals.
Discussion and Decision
[5] Owens contends that the trial court abused its discretion by considering an
improper aggravating factor when it sentenced him. He also contends that his
sentence is inappropriate in light of the nature of the offense and his character.
I. Aggravating Factor
[6] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). “Where a trial
court’s reason for imposing a sentence greater than the advisory sentence
includes material elements of the offense, absent something unique about the
circumstances that would justify deviating from the advisory sentence, that
reason is ‘improper as a matter of law.’” Gomillia v. State, 13 N.E.3d 846, 852-
53 (Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491). Owens argues that the
trial court erroneously considered the pending Kentucky charge for identity
theft as an aggravator because “the pending charge is based on a[n] element
included in the crime for which the [d]efendant was found guilty.” Appellant’s
Br. p. 8.
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[7] Even if we presume that the trial court abused its discretion when it considered
the pending Kentucky charge as an aggravator, Owens has a lengthy criminal
history from 1976 to present, in which he was convicted of carrying a concealed
weapon, manslaughter, unarmed robbery, assault with intent to do great bodily
harm, possession of a controlled substance, and retail fraud. In addition, he has
previously received the benefit of both short-term and long-term rehabilitative
treatment. Accordingly, we are confident that the court would have imposed
the same sentence even if it had not considered the pending Kentucky charge as
an aggravator. See Anglemyer, 868 N.E.2d at 491 (“remand for resentencing
may be the appropriate remedy if we cannot say with confidence that the trial
court would have imposed the same sentence had it properly considered
reasons that enjoy support in the record.”).
II. Inappropriate Sentence
[8] Owens also argues that his sentence is inappropriate. Under Indiana Appellate
Rule 7(B), this Court may revise a 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. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). The defendant has the
burden of persuading this Court that his or her sentence is inappropriate.
Thomson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). A Level 5 felony,
which Owens was convicted of, has a sentencing range of one to six years, with
an advisory sentence of three years. I.C. § 35-50-2-6(b).
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[9] Regarding the nature of the offense, Owens asserts that his sentence should be
reduced because the nature of his crime “was of a less noxious nature than if it
involved a larger sum [of] money.” Appellant’s Br. p. 12. However, the crime
of fraud on a financial institution does not place any importance on the amount
of money taken, see Ind. Code § 35-43-5-8, and we presume the legislature
considered the nature of the crime of fraud on a financial institution in
determining its penal consequences. Owens used a Kentucky citizen’s ID card
to fraudulently acquire $7500 from a bank. He attempted to commit the same
offense at two other branches and, on the last attempt, he used an Illinois
citizen’s ID card.
[10] Even if this offense was not remarkable, his character weighs against any
revision in his sentence. Owens points out that he has done nothing wrong
since his 2009 conviction; however, as the trial court noted:
[Y]ou admitted using marijuana beginning at age 13 . . . you
resumed using at age 50 or 51 . . . until age 60 . . . you are 61.
You began using crack cocaine at age 34, quit at age 35, resumed
use at 42 . . . until your last use in November of 2016. That
indicates to me that you don’t understand wrong and right,
because you have committed wrongs since 2009.
Tr. Vol. II p. 17. Owens also has a lengthy criminal history, as previously
mentioned. We acknowledge the letters written in support of Owens and that
he pled guilty and expressed remorse, but when compared to his lengthy
criminal history, including the fact that he previously received the benefit of
rehabilitative treatment, Owens has failed to persuade us that a sentence of one
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year above the advisory is inappropriate in light of his character and the nature
of his offense.
[11] Affirmed.
Pyle, J. and Barnes, Sr. J., concur.
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