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
