MEMORANDUM DECISION                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                                             08/31/2017, 10:01 am

this Memorandum Decision shall not be                                                   CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
regarded as precedent or cited before any                                                and Tax Court

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
Matthew J. Elkin                                         Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marion Longfellow,                                       August 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1704-CR-817
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff.                                      Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1605-F1-97



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017           Page 1 of 7
                                       Statement of the Case
[1]   Marion Longfellow appeals his sentence for child molesting, as a Level 4

      felony, following a guilty plea. He raises two issues for our review, one of

      which we find dispositive, namely, whether his sentence is inappropriate in

      light of the nature of the offense and his character.


[2]   We reverse and remand with instructions.


                                 Facts and Procedural History
[3]   On May 13, 2016, M.W., who was then thirteen-years-old, reported to a

      Howard County Child Protective Services Caseworker that Longfellow, her

      grandfather, had touched her inappropriately. Law enforcement officers

      monitored the interview from another room. In her interview, M.W. stated

      that, during a visit to Longfellow’s house on May 8, 2016, Longfellow, who

      was then eighty-one-years old, had touched her breast on the outside of her

      clothing. She moved his hand away but he attempted to touch her a second

      time. At that point, M.W. walked out of the garage.


[4]   On May 25, an officer with the Kokomo Police Department interviewed

      Longfellow regarding M.W.’s allegations. Longfellow admitted that “he placed

      his hand on her breast” while in the garage at his house. Appellant’s App. Vol.

      II at 25. Longfellow also stated that, while he “has difficulty remembering

      details,” he remembered touching her breast. Id. Longfellow claimed that he




      Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017   Page 2 of 7
      believed M.W. was “teasing him sexually” and that she “was wanting things to

      happen.” Id. 1


[5]   On May 31, 2016, the State charged Longfellow with one count of child

      molesting, as a Level 1 felony, for touching M.W.’s breast. On December 12,

      Longfellow entered into a plea agreement with the State in which he agreed to

      plead guilty to the lesser included offense of child molesting, as a Level 4

      felony. During a plea hearing on March 17, 2017, Longfellow pleaded guilty to

      child molesting, as a Level 4 felony. On that same date, the trial court entered

      judgment of conviction and held a sentencing hearing.


[6]   According to the presentence investigation report, Longfellow has had four

      heart attacks and a light stroke, suffers shortness of breath, has high cholesterol

      and high blood pressure, has memory loss, and has heart problems. The report

      also indicates that Longfellow takes seven different medications. During the

      sentencing hearing, Scott Comfort, an investigator with a medical background,

      testified that several of Longfellow’s medications “have known possible side

      effects of altering one’s mental state in some way, shape[,] or form,” including

      being unable to remember things. Tr. at 52. Comfort further testified that

      strokes “can cause impulsive behavioral actions.” Id. Longfellow introduced




      1
        The interview is included as an attachment to the probable cause affidavit. During the sentencing hearing,
      the court asked the parties whether there was a factual basis for the guilty plea. The parties provided the
      following responses: “[The State]: The State would stipulate to the facts contained in the Affidavit of
      Probable Cause and the attachments thereto to establish a factual basis. [Longfellow]: And the defendant
      would so stipulate as it relates to those allegations that are specifically Level 4 allegations.” Longfellow did
      not provide any further clarification as to which facts he was stipulating.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017                Page 3 of 7
      as evidence a letter from his neurologist that states he “is at risk for further

      stroke” and that the “incarceration of Mr. Longfellow increases his risk of being

      unable to receive the standard of care” for an acute stroke. Appellant’s App.

      Vol. II at 104.


[7]   During the sentencing hearing, the trial court identified as an aggravating

      circumstance that Longfellow was in a position of trust and responsibility over

      his granddaughter. The court also found as a “slight” aggravating circumstance

      that Longfellow had tried to minimize his responsibility or the nature of the

      offense by blaming M.W. The court identified as mitigating circumstances

      Longfellow’s lack of criminal history and his guilty plea. The trial court

      sentenced Longfellow to an executed term of ten years in the Indiana

      Department of Correction and ordered him to register as a sex offender. This

      appeal ensued.


                                     Discussion and Decision
[8]   Longfellow contends that his sentence is inappropriate in light of the nature of

      the offense and his character. Indiana Appellate Rule 7(B) provides that “[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.” The

      Indiana Supreme Court has recently explained that:

              The principal role of appellate review should be to attempt to
              leaven the outliers . . . but not achieve a perceived “correct”
              result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017   Page 4 of 7
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.) as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E. 2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 637, 642 (Ind. 2017).


[9]    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, 895 N.E.2d at 1222. 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 is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence 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). In

       determining whether a sentence is inappropriate, the advisory sentence “is the

       starting point the Legislature has selected as an appropriate sentence for the

       crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006).


[10]   Longfellow pleaded guilty to a Level 4 felony. Pursuant to Indiana Code

       Section 35-50-2-5.5, the sentencing range for a Level 4 felony is two to twelve


       Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017   Page 5 of 7
       years. The advisory sentence is six years. As stated above, the trial court

       sentenced Longfellow to an executed term of ten years for his Level 4 felony

       offense.


[11]   Longfellow claims that the ten-year sentence is inappropriate and the trial court

       should have imposed a sentence of two years, suspended to probation.

       Longfellow asserts that “the true nature of this offense is one where an adult

       brushed the breasts of a young lady.” Appellant’s Br. at 17. In his May 25,

       2016, interview with police, Longfellow said that on May 8, 2016, he and

       M.W. were playing catch outside. He stated that after they went into the

       garage he “placed his hand on her breast.” Id. The placing of his hand on her

       breast was more than a mere “brush.” Thus, Longfellow admitted to

       purposefully and inappropriately touching his minor granddaughter.


[12]   We acknowledge the inappropriateness of Longfellow’s choice to touch the

       breast of his granddaughter. We also acknowledge the impact Longfellow’s act

       had on M.W. and her family. However, we must conclude that the nature of

       this offense is no more than what the Indiana General Assembly already took

       into consideration when it decided on the elements of the crime. There is no

       evidence that Longfellow’s conduct was especially egregious to warrant a

       sentence four years above the advisory term and just two years below the

       maximum term.


[13]   With respect to Longfellow’s character, we likewise conclude that the evidence,

       as a whole, is in equipoise. We agree with the trial court that Longfellow


       Court of Appeals of Indiana | Memorandum Decision 34A02-1704-CR-817 | August 31, 2017   Page 6 of 7
       attempted to minimize his offense and blame his victim, which reflects poorly

       on his character. But it is undisputed that Longfellow also has no criminal

       history and took responsibility for his actions when he pleaded guilty. It is also

       undisputed that, at the time of sentencing, Longfellow was eighty-two years old

       with significant medical issues, including a history of four heart attacks, a

       stroke, shortness of breath, high cholesterol, high blood pressure, memory loss,

       and heart problems. He also takes seven different medications, many of which

       alter his mental state and some of which increase his stroke risk.


[14]   After giving due consideration to the trial court’s sentencing decision, the

       nature of Longfellow’s offense, and Longfellow’s character, we must conclude

       that the ten-year sentence is inappropriate. However, we disagree with

       Longfellow that he should receive the minimum sentence of two years, all

       suspended to probation. Rather, on remand we direct the trial court to order

       Longfellow to serve the advisory sentence of six years executed with the

       Indiana Department of Correction.


[15]   Reversed and remanded with instructions.


       Kirsch, J., and Brown, J., concur.




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