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.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-451 | July 24, 2018                    Page 1 of 7
                                           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.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-451 | July 24, 2018   Page 2 of 7
      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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-451 | July 24, 2018                      Page 3 of 7
      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.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-451 | July 24, 2018   Page 4 of 7
[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).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-451 | July 24, 2018   Page 5 of 7
[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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-451 | July 24, 2018   Page 6 of 7
       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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-451 | July 24, 2018   Page 7 of 7
