      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                May 12 2020, 9:22 am
      court except for the purpose of establishing                                   CLERK
      the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                                   Court of Appeals
      estoppel, or the law of the case.                                              and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                     Curtis T. Hill, Jr.
      Indianapolis, Indiana                                   Attorney General of Indiana
                                                              J.T. Whitehead
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Lloyd A. Corner,                                        May 12, 2020
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              19A-CR-3049
              v.                                              Appeal from the Fayette Circuit
                                                              Court
      State of Indiana,                                       The Honorable Hubert Branstetter,
      Appellee-Plaintiff.                                     Jr., Judge
                                                              Trial Court Cause No.
                                                              21C01-1808-F5-669



      Mathias, Judge.


[1]   Lloyd Corner (“Corner”) pleaded guilty in Fayette Circuit Court to Level 5

      felony burglary and was sentenced to three and one-half years of incarceration.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020                      Page 1 of 9
      Corner appeals and presents two issues, which we restate as: (1) whether the

      trial court abused its discretion by concluding that Corner was not a good

      candidate for placement in community corrections, and (2) whether Corner’s

      sentence is inappropriate.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Because Corner pleaded guilty, the facts underlying his conviction were not

      fully developed at a trial. But the record indicates that on August 5, 2018,

      Corner broke into a garage with the intent to steal copper cables, steel rebar,

      and steel clamps. Corner was seen leaving the garage by two witnesses, and

      stolen items were later found in his possession.


[4]   On August 27, 2018, the State charged Corner with Level 5 felony burglary and

      Class A misdemeanor theft. On January 8, 2019, the State filed an information

      alleging that Corner was an habitual offender.


[5]   The parties entered into a plea agreement on February 20, 2019. Pursuant to the

      agreement, Corner would plead guilty as charged in this case as well as another

      case in which he was charged with Level 6 felony forgery. In exchange, the

      State agreed to dismiss the habitual offender enhancement and not object to

      Corner serving his sentence on work release. However, on March 5, 2019, the

      local community corrections program determined that Corner was ineligible for

      work release because of his criminal record and his lack of success in

      community corrections in the past. He also had unpaid fees from his previous
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020   Page 2 of 9
      stint in community corrections and indicated that he was unable to pay

      community corrections fees in the present case. As a result, Corner withdrew

      from the plea agreement.


[6]   On September 6, 2019, Corner pleaded guilty to Level 5 felony burglary

      without the benefit of a written plea agreement. The State then dismissed the

      theft charge and the habitual offender enhancement. The trial court accepted

      Corner’s plea, and a sentencing hearing was set for November 22, 2019.


[7]   At the sentencing hearing, the trial court was given the presentence

      investigation report (“PSIR”), which detailed Corner’s extensive criminal

      history. The trial court noted that community corrections indicated Corner was

      not a good candidate to serve his sentence in community corrections. It found

      as mitigating that Corner had accepted responsibility for his actions by pleading

      guilty. The trial court sentenced Corner to three and one-half years of

      incarceration, with credit for time served. Corner now appeals.


                                            I. Abuse of Discretion

[8]   Corner first contends that the trial court abused its sentencing discretion.

      Sentencing decisions are entrusted to the sound discretion of the trial court and

      are reviewed on appeal only for an abuse of that discretion. Grimes v. State, 84

      N.E.3d 635, 643 (Ind. Ct. App. 2017) (citing Anglemyer v. State, 868 N.E.2d 482,

      490 (Ind. 2007)), trans. denied. Among the ways in which a trial court may abuse

      its discretion are: (1) failing to enter a sentencing statement at all; (2)

      articulating reasons in a sentencing statement that are not supported by the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020   Page 3 of 9
       record; (3) omitting reasons in a sentencing statement that are clearly supported

       by the record; or (4) articulating reasons that are improper as a matter of law.

       Id. at 644 (citing Anglemyer, 868 N.E.2d at 490–91).


[9]    Corner’s abuse-of-discretion argument falls within the second of these

       categories: he claims the trial court found that he was unable to pay community

       corrections fees despite evidence to the contrary. Corner specifically refers to

       the statements his counsel made at the sentencing hearing indicating that

       Corner’s family was present and willing to pay any costs and fees associated

       with placing Corner in community corrections. Corner therefore argues that his

       inability to pay these fees personally “was not a reason to impose an executed

       sentence” because “[p]ayment of the fees had been arranged.” Appellant’s Br.

       at 10.


[10]   Corner, however, points to no evidence in the record that his family was willing

       and able to pay his fees. It is well settled that statements of counsel are not

       evidence. See Piatek v. Beale, 999 N.E.2d 68, 69 (Ind. Ct. App. 2013) (“It is

       axiomatic that the arguments of counsel are not evidence.”); Kilpatrick v. State,

       746 N.E.2d 52, 59 (Ind. 2001) (holding that statements made by co-defendant’s

       counsel were not evidence). Moreover, Corner’s inability to pay fees was not

       the only reason the trial court declined to place him in community corrections.

       The trial court noted at the sentencing hearing that community corrections

       personnel had already determined that Corner “wasn’t a good candidate.” Tr.

       p. 12. As noted above, community corrections had reported that Corner was

       ineligible for work release not only because of his unpaid fees but because of his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020   Page 4 of 9
       criminal record and his lack of success in his previous placement in community

       corrections.


[11]   Accordingly, the trial court’s decision to not place Corner in community

       corrections was not based solely on his failure to pay prior fees and inability to

       pay current fees. It was based on the fact that Corner was not a good candidate

       for such placement. In short, the trial court did not abuse its discretion in

       sentencing Corner.1


                                         II. Appropriateness of Sentence

[12]   Corner also asks us to revise his sentence, arguing that the sentence imposed by

       the trial court is inappropriate. Pursuant to Indiana Appellate Rule 7(B), “[t]he

       Court may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” We must

       exercise deference to a trial court’s sentencing decision, because Rule 7(B)

       requires us to give due consideration to that decision and because we

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Rose v. State, 36 N.E.3d 1055, 1063 (Ind. Ct. App. 2015).

       “Such deference should prevail unless overcome by compelling evidence




       1
         Assuming arguendo that the trial court abused its discretion in this regard, such would not require us to
       remand for resentencing. Even when a trial court has abused its discretion in sentencing, the court on appeal
       need not remand for resentencing if the sentence imposed is not inappropriate. Shelby v. State, 986 N.E.2d
       345, 370 (Ind. Ct. App. 2013), trans. denied; Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013)
       (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007)). As explained in more detail infra, Corner’s three-
       and-one-half-year sentence is not inappropriate.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020                         Page 5 of 9
       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[13]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). The appropriate question is not

       whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. Rose, 36 N.E.3d at 1063.


[14]   Although we have the power to review and revise sentences, the principal role

       of appellate review should be to attempt to “leaven the outliers, and identify

       some guiding principles for trial courts and those charged with improvement of

       the sentencing statutes, but not to achieve a perceived ‘correct’ result in each

       case.” Cardwell, 895 N.E.2d at 1225. Our review under Rule 7(B) should focus

       on “the forest—the aggregate sentence—rather than the trees—consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.” Id. And it is the defendant’s burden on appeal to persuade us that the

       sentence imposed by the trial court is inappropriate. Childress v. State, 848

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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020   Page 6 of 9
[15]   Here, Corner was convicted of Level 5 felony burglary. A person convicted of a

       Level 5 felony “shall be imprisoned for a fixed term of between one (1) and six

       (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-2-

       6. Corner’s three-and-one-half-year sentence is slightly more than the advisory

       sentence.


[16]   Considering the nature of Corner’s offense, we agree with him that there is little

       in the record indicating that his burglary was particularly egregious. But the

       extent of his criminal history alone is sufficient to justify Corner’s slightly-

       above-the-advisory sentence. See Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013) (“When considering the character of the offender, one relevant fact

       is the defendant's criminal history.”).


[17]   The PSIR reveals that Corner has a criminal history that started in 1989, when

       he was convicted of Level 2 felony aggravated burglary and Level 2 felony

       aggravated attempted rape in Ohio. Corner was sentenced to concurrent

       sentences of eight to fifteen years on these counts. In December 2007, Corner

       was charged with Class B felony rape and Class D felony sexual battery and

       alleged to be an habitual offender. He was convicted on the sexual battery count

       and sentenced to three years plus an additional three years on the habitual

       offender enhancement. In February 2014, Corner was charged with Class A

       misdemeanor public indecency, Class A misdemeanor possession of marijuana,

       and Class B misdemeanor public intoxication. He was convicted on the first

       two counts and sentenced to thirty days in jail; the latter count was dismissed.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020   Page 7 of 9
[18]   In April 2015, Corner was charged with Class A misdemeanor possession of

       marijuana. He was convicted on this charge in February 2016 and sentenced to

       180 days executed on work release. But his placement in work release was

       revoked on April 26, 2016, and he served the balance of his sentence in the

       Fayette County Jail.


[19]   In October 2016, Corner was charged with Level 6 felony possession of a

       legend drug, Level 6 felony unlawful possession of a syringe, and Class B

       misdemeanor disorderly conduct. He was convicted on the first count and

       sentenced to one year of incarceration. The other counts were dismissed.


[20]   In January 2018, Corner was charged with Level 6 felony failure to register as a

       sex offender, Level 6 felony failure of a sex offender to possess identification,

       and Class A misdemeanor invasion of privacy by violating a protective order.

       He was convicted on the second count and sentenced to six months executed. It

       was only shortly after being released from jail in this case that Corner

       committed the instant offenses. And Corner had a pending charge of forgery at

       the time he was sentenced in the present case.


[21]   In light of Corner’s character, as evidenced by his extensive criminal history,

       Corner has not met his burden of proof of showing that his three-and-one-half-

       year sentence is inappropriate.


                                                 Conclusion
[22]   The trial court did not abuse its discretion by determining that Corner was not a

       good candidate for placement in community corrections. Nor is Corner’s
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020   Page 8 of 9
       sentence inappropriate in light of the nature of the offense and the character of

       the offender. Accordingly, we affirm the judgment of the trial court.


[23]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3049 | May 12, 2020   Page 9 of 9
