MEMORANDUM DECISION                                                            FILED
                                                                          Sep 21 2017, 9:52 am

Pursuant to Ind. Appellate Rule 65(D),                                         CLERK
                                                                           Indiana Supreme Court
this Memorandum Decision shall not be                                         Court of Appeals
                                                                                and Tax Court
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
Jeffery A. Earl                                          Curtis T. Hill, Jr.
Danville, Indiana                                        Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lori L. Cinelli,                                         September 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A05-1702-CR-269
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Karen M. Love,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D03-1602-F2-6



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017           Page 1 of 7
                                Case Summary and Issue
[1]   Lori Cinelli pleaded guilty to one Level 2 felony and two Level 3 felony counts

      of dealing in methamphetamine. Cinelli appeals her ten-year sentence, raising

      the sole issue of whether the trial court’s order that she serve eight years of her

      sentence at the Indiana Department of Correction (“DOC”) is inappropriate.

      Concluding her placement was not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On three separate occasions in late 2015 and early 2016, Cinelli sold

      methamphetamine while in the presence of a one-year-old and a three-year-old

      child. The State charged Cinelli with one count of Level 2 felony dealing in

      methamphetamine, two counts of Level 3 felony dealing in methamphetamine,

      two counts of Level 5 felony possession of methamphetamine, and one count of

      Level 6 felony possession of methamphetamine.


[3]   In November 2016, Cinelli reached a plea agreement with the State and pleaded

      guilty to one count of Level 2 felony dealing in methamphetamine and two

      counts of Level 3 felony dealing in methamphetamine. The plea agreement

      provided the State would dismiss the remaining charges and Cinelli’s sentence

      would be determined by the trial court, “subject to a maximum of [ten years] on

      each count served concurrently at the [DOC].” Appellant’s Appendix, Volume

      2 at 53.




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[4]   The trial court accepted the plea agreement and proceeded to a sentencing

      hearing. Because the minimum allowable sentence for a Level 2 felony is ten

      years and the agreement called for the sentences to be concurrent, the parties

      and the trial court agreed the issue was whether any of the sentence would be

      suspended or served in community corrections. The State advocated for a fully

      executed sentence. Cinelli argued her sentence was best served in community

      corrections so she could care for her mother, continue working part-time, and

      participate in substance abuse treatment. The trial court found Cinelli’s

      criminal history and the fact she knew her buyer was addicted to

      methamphetamine to be aggravating factors. The trial court found Cinelli’s

      mental health issues, substance abuse, and difficult childhood to be mitigating

      factors but did not give her acceptance of responsibility by pleading guilty

      substantial weight given the amount of evidence possessed by the State.


[5]   The trial court sentenced Cinelli to ten years with eight years executed in the

      DOC and the remainder suspended to home detention. Cinelli now appeals.


                                 Discussion and Decision
[6]   Cinelli acknowledges that she received the minimum sentence allowed by law

      and the plea agreement, but asks us to reduce the portion of her sentence to be

      executed at the DOC, alleging her placement is inappropriate in light of the

      nature of her offenses and her character.




      Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017   Page 3 of 7
                                     I. Standard of Review
[7]   The Indiana Constitution authorizes appellate review and revision of criminal

      sentences. Ind. Const. art. 7, §§ 4, 6. If, after due consideration of the trial

      court’s decision, we find the sentence inappropriate in light of the nature of the

      offense and the character of the defendant, we may revise the sentence

      accordingly. Ind. Appellate Rule 7(B). In assessing whether a sentence is

      inappropriate, appellate courts may take into account whether a portion of the

      sentence is suspended or otherwise crafted using the variety of sentencing tools

      available to the trial judge. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

      2010). The defendant bears the burden of persuading this court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[8]   The location where a sentence is to be served is an appropriate focus for

      application of our review and revise authority. Biddinger v. State, 868 N.E.2d

      407, 414 (Ind. 2007). However, it is “quite difficult for a defendant to prevail

      on a claim that the placement of his or her sentence is inappropriate.” Fonner v.

      State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). We consider both prongs of

      Rule 7(B), the nature of the offense and the character of the defendant, in our

      assessment of the inappropriateness of a sentence. Connor v. State, 58 N.E.3d

      215, 219 (Ind. Ct. App. 2016). Additionally, “[a] defendant challenging the

      placement of a sentence must convince us that the given placement is itself

      inappropriate.” Fonner, 876 N.E.2d at 344.




      Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017   Page 4 of 7
                                  II. Inappropriate Sentence
[9]    Cinelli pleaded guilty to three counts of dealing in methamphetamine, the most

       serious being a Level 2 felony. “The advisory sentence is the starting point the

       Legislature selected as appropriate for the crime committed.” Fuller v. State, 9

       N.E.3d 653, 657 (Ind. 2014). The sentencing range for a Level 2 felony is

       between ten and thirty years, with an advisory sentence of seventeen and one-

       half years. Ind. Code § 35-50-2-4.5.


[10]   Cinelli argues the nature of her offense was less severe than the State contended

       at sentencing. The “nature of the offense” prong compares the defendant’s

       actions with the required showing to sustain a conviction under the charged

       offense. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013). Cinelli

       sold methamphetamine in the company of children on three separate occasions.

       The methamphetamine totaled more than 14 grams, a substantial amount

       considering the requirement for a Level 2 felony dealing in methamphetamine

       charge is 10 grams. See Ind. Code § 35-48-4-1.1(e)(1). Cinelli then pleaded

       guilty to three counts of dealing in methamphetamine and received the

       minimum possible sentence.


[11]   In support of her argument, Cinelli downplays the fact she knew the buyer was

       addicted to drugs because “it is a stretch to imagine that the clear majority of

       buyers in illegal drug transactions are not addicted to drugs[,]” and points to the

       fact that Cinelli was addicted to drugs herself. Appellant’s Brief at 9. Of

       course, this is true in most drug transactions and therefore is likely a


       Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017   Page 5 of 7
       consideration the legislature made when defining the crime and its

       consequences. Cinelli also argues although the offense was committed in front

       of children, they were likely too young to be “cognizant of what was

       occurring.” Id. Even if we thought the only danger of drug transactions in front

       of children is that they may be “cognizant of what was occurring,” we would

       still find Cinelli’s arguments on this point unpersuasive. We cannot say there is

       anything about the nature of her crimes that makes eight years executed in the

       DOC inappropriate.


[12]   In considering Cinelli’s character, it is appropriate to examine her criminal

       history. See Bryant v. State, 841 N.E.2d 1154, 1156-57 (Ind. 2006). Cinelli’s

       criminal history consists of four misdemeanor convictions, numerous arrests,

       and probation violations have been filed against her during each of her two

       prior placements on probation. Criminal history and frequent contact with the

       criminal justice system reflects negatively on one’s character. See, e.g.,

       Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (concluding that

       although the defendant’s criminal history was not aggravating “to a high

       degree,” it was still a poor reflection on his character).


[13]   Cinelli argues she needs mental health and substance abuse treatment which

       can be best provided in the context of home detention. She does not

       demonstrate, however, that she can only obtain this treatment outside the

       DOC. Thus, Cinelli’s argument is essentially one in favor of a more

       appropriate sentence, not an explanation of why her sentence is inappropriate.

       That is not the question posed by Appellate Rule 7(B). See Fonner, 876 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 32A05-1702-CR-269 | September 21, 2017   Page 6 of 7
       at 344 (noting “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”). We find nothing about Cinelli’s character

       rendering her sentence inappropriate.


                                               Conclusion
[14]   After our review of the record and due consideration of the trial court’s

       decision, we cannot say that Cinelli’s placement in the DOC for eight years of

       her ten-year sentence is inappropriate. Her sentence is therefore affirmed.


[15]   Affirmed.


       Riley, J., and Pyle, J., concur.




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