MEMORANDUM DECISION
                                                                 Jul 29 2015, 8:43 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Derick W. Steele                                          Gregory F. Zoeller
Deputy Public Defender                                    Attorney General of Indiana
Kokomo, Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Cornelius T. Banks,                                       July 29, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          34A02-1501-CR-37
        v.                                                Appeal from the Howard Superior
                                                          Court

State of Indiana,                                         The Honorable William C. Menges,
                                                          Jr., Judge
Appellee-Plaintiff.                                       Cause No. 34D01-1407-FA-501




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015      Page 1 of 8
[1]   Cornelius T. Banks appeals his sentence for dealing in cocaine as a class B

      felony. Banks raises one issue which we revise and restate as whether his

      sentence is inappropriate in light of the nature of the offense and his character.

      We affirm.


                                      Facts and Procedural History

[2]   On January 30, 2014, Banks sold cocaine to an informant for sixty dollars. On

      June 30, 2014, the State charged Banks with Count I, dealing in cocaine as a

      class A felony; Count II, dealing in cocaine as a class B felony; Count III,

      dealing in cocaine as a class B felony; and Count IV, dealing in cocaine as a

      class B felony, and on July 9, 2014, the State charged Banks with Count V,

      dealing in cocaine as a class A felony. On November 3, 2014, Banks and the

      State entered into a Recommendation of Plea Agreement (the “Plea

      Agreement”) in which Banks agreed to plead guilty to Count II and the State

      agreed to dismiss the remaining counts, as well as all charges under Cause No.

      34D01-1408-F4-599 (“Cause No. 599”) and a petition to revoke filed in 34D01-

      1009-FA-784 (“Cause No. 784”). Under the Plea Agreement, the parties agreed

      that the court would have discretion in sentencing Banks with a maximum

      executed portion of any sentence capped at fifteen years. On December 17,

      2014, the court held a sentencing hearing and entered sentence which, as

      amended, ordered Banks to serve fifteen years in the Department of Correction

      (the “DOC”) followed by five years suspended to probation.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015   Page 2 of 8
                                                   Discussion

[3]   The issue is whether Banks’s sentence is inappropriate in light of the nature of

      the offense and the character of the offender. Indiana Appellate Rule 7(B)

      provides that 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.” Under this rule, the burden is on the defendant to persuade the

      appellate court that his or her sentence is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006).


[4]   Banks argues that, while he supplied illegal drugs, on each occasion he was

      contacted by the informant and thus was not seeking out an unwilling

      participant in the transaction. He asserts that “[m]aximum sentences are

      reserved for the most heinous of crimes.” Appellant’s Brief at 4. He

      acknowledges that he has one prior felony as an adult, as well as “a significant

      and lengthy juvenile history,” which he argues “should be somewhat

      diminished due to the lack of judgment and development exhibited by

      juveniles.” Id. He also argues that his drug dependency should be taken into

      account in imposing his sentence, stating that he “should be immediately

      recommended to the Therapeutic Community, or Purposeful Incarceration,

      where he can receive the treatment and education he needs . . . .” Id. at 5.

      Banks requests that this court impose a sentence of ten years executed followed

      by five years suspended to probation.



      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015   Page 3 of 8
[5]   To the extent Banks suggests that he received a maximum sentence, we note

      that he did not receive a maximum sentence under the statute governing his

      offense. Ind. Code § 35-50-2-5(a) (“A person who commits a Class B felony

      (for a crime committed before July 1, 2014) shall be imprisoned for a fixed term

      of between six (6) and twenty (20) years . . . .)”; See Davidson v. State, 926

      N.E.2d 1023, 1025 (Ind. 2010) (noting that in reviewing sentences pursuant to

      Ind. Appellate Rule 7(B), we may consider not only the appropriateness of the

      aggregate length of the sentence, but also “whether a portion of the sentence is

      ordered suspended or otherwise crafted using any of the variety of sentencing

      tools available to the trial judge”).


[6]   Our review of the nature of the offense reveals that Banks sold cocaine to an

      informant for sixty dollars. Before entering into the Plea Agreement, Banks

      faced two counts of dealing in cocaine as class A felonies, as well as two

      additional counts of dealing in cocaine as class B felonies under this cause

      number.


[7]   Our review of the character of the offender reveals that, in his presentence

      investigation report (“PSI”), Banks reported that he began using alcohol at the

      age of seventeen and that he has used marijuana, Ecstasy, cocaine, meth,

      Xanax, Lortab, and Norco. The PSI also reveals that, despite his young age of

      twenty-three at the time of sentencing, Banks has a lengthy criminal history. As

      a juvenile, in 2006 he was adjudicated delinquent for habitual disobedience of

      parent, guardian, or custodian and was placed on formal probation, which was

      unsuccessfully completed. In 2007, he was referred to probation for disorderly

      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015   Page 4 of 8
      conduct as a class B misdemeanor if committed by an adult. That same year,

      he was found delinquent for residential entry as a class D felony if committed

      by an adult, battery resulting in bodily injury as a class A misdemeanor if

      committed by an adult, and battery as a class B misdemeanor if committed by

      an adult. He was placed on formal probation and failed to successfully

      complete his probation. In 2008, he was referred twice to probation for charges

      of resisting law enforcement, and for theft and possession of marijuana. In

      2009 he was referred to probation for leaving home without permission of a

      parent, guardian, or custodian, truancy, and battery as a class B misdemeanor if

      committed by an adult.


[8]   As an adult, in 2010 Banks was sentenced for possession of a narcotic drug as a

      class A misdemeanor as a lesser included offense and placed on probation. In

      2011, he was sentenced for dealing in cocaine or narcotic drug as a class B

      felony to ten years, including six years executed and four years suspended to

      probation under Cause No. 784. The State initially filed a petition to revoke his

      probation under that cause, which was dismissed pursuant to the Plea

      Agreement. He also had a charge of dealing in cocaine dismissed under Cause

      No. 599 as a result of his guilty plea.1


[9]   After due consideration of the trial court’s decision, we cannot say that the

      sentence of fifteen years executed and five years suspended to probation




      1
          The PSI recites the cause number as “34D01-1407-F4-899.” Appellant’s Appendix at 69.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015         Page 5 of 8
       imposed by the court is inappropriate in light of the nature of the offense and

       the character of the offender.


                                                    Conclusion

[10]   For the foregoing reasons, we affirm Bank’s sentence for dealing in cocaine as a

       class B felony.


[11]   Affirmed.


       Friedlander, J., concurs.


       Riley, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015   Page 6 of 8
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Cornelius T. Banks,                                      Court of Appeals Case No.
                                                                34A02-1501-CR-37
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge dissenting

[12]   I respectfully dissent from the majority’s decision that Banks’ sentence of fifteen

       years executed and five years suspended to probation for his Class B felony

       dealing in cocaine is appropriate in light of the nature of the offense and Banks’

       character. While I agree that Banks has a lengthy juvenile history, it should be

       noted that the juvenile true findings were incurred adjudications unrelated to

       the instant offense. See, e.g., Watson v. State, 784 N.E.2d 515, 521 (Ind. Ct. App.

       2003). Banks’ juvenile history reflects true findings for, among others, habitual

       disobedience, residential entry, and battery whereas the instant offense is a drug

       felony.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015   Page 7 of 8
[13]   Furthermore, although Banks, as an adult, previously incurred a Class B felony

       dealing in cocaine, he never received any sort of treatment. Accordingly, in

       light of his young age and the acknowledgment of his substance abuse problem,

       I would adopt the recommendation of his probation officer and impose a

       sentence of fifteen years with ten years executed and five years suspended to

       supervised probation. Because he has never been granted a meaningful

       opportunity for corrective and rehabilitative treatment, I would recommend

       Banks to the Therapeutic Community or Purposeful Incarceration.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-37 | July 29, 2015   Page 8 of 8
