MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Oct 31 2018, 11:00 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeffery Haupt                                           Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marcel Cornilus Lane,                                   October 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1283
        v.                                              Appeal from the St. Joseph Circuit
                                                        Court
State of Indiana,                                       The Honorable John E. Broden,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        71C01-1704-FC-26



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1283 | October 31, 2018            Page 1 of 7
                                           Statement of the Case
[1]   Marcel Cornilus Lane (“Lane”) appeals the sentences imposed for his two

      convictions of Level 6 felony nonsupport of a dependent child, 1 arguing that his

      aggregate five-year sentence, which is to be served in a work release program

      and on probation, is inappropriate. Concluding that Lane has failed to show

      that his sentence is inappropriate, we affirm his sentence.


[2]   We affirm.


                                                         Issue
                 Whether Lane’s sentence is inappropriate pursuant to Indiana
                 Appellate Rule 7(B).


                                                         Facts
[3]   In February 2000, Lane was ordered to pay $42.00 per week in child support for

      his daughter, T.L. (“T.L.”), who was born in September 1997. In November

      2009, Lane was ordered to pay $43.00 per week in child support for his son,

      A.L. (“A.L.”), who was born in October 1999.2 Lane failed to make payments

      for his children for multiple years, and, on different occasions, he was held in

      contempt for failing to make payments for both children.




      1
          IND. CODE § 35-46-1-5.
      2
          Lane had these two children with two different mothers.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1283 | October 31, 2018   Page 2 of 7
[4]   In 2017, the State ultimately charged Lane with: Count I, Level 6 felony

      nonsupport of a dependent child for his failure to pay child support for T.L.

      between July 1, 2014 and September 13, 2015; and Count II, Level 6 felony

      nonsupport of a dependent child for his failure to pay child support for A.L.

      between July 1, 2014 and February 28, 2017.3 The trial court held a jury trial

      on April 3, 2018. At the time of trial, Lane had arrearages of almost $29,000.00

      for T.L. and more than $20,000.00 for A.L. The jury found Lane guilty as

      charged.


[5]   Prior to sentencing, the probation department compiled a presentence

      investigation report (“PSI”), which showed that Lane had a criminal history

      consisting of convictions for Class D felony sexual misconduct with a minor in

      2001 and Class C misdemeanor resisting arrest in 2013. He also had been

      arrested for drug-related offenses that were ultimately dismissed. According to

      the PSI, Lane reported that he had eight children between the ages of twenty

      years old and three years old. Of these eight children, Lane had been ordered

      to pay child support for the three older children but had failed to be current on

      payments for any of those children.4 The PSI also revealed that Lane had last

      been employed in 2004 and that his parents had financially supported him since




      3
       The State initially charged Lane with these two offenses in addition to a Class C felony nonsupport of a
      dependent child for T.L. and a Class D felony nonsupport of a dependent child for A.L., but the State later
      dismissed the Class C felony and Class D felony charges. Both T.L. and A.L. were both over eighteen years
      old when the State filed the charges in this case.
      4
       The two children in this case were two of the three children for which Lane had been ordered to pay child
      support.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1283 | October 31, 2018                 Page 3 of 7
      2004. Lane told the probation department that he frequently played basketball

      with friends that that he spent the majority of his day playing basketball with

      his children.


[6]   At the time of Lane’s sentencing hearing, he had obtained employment. When

      sentencing Lane, the trial court commented on Lane’s PSI statement that he

      spent most of his day playing basketball with his kids and pointed out that Lane

      had not paid child support for almost fifteen years. The trial court noted that

      Lane was “an able-bodied person” who did not have anything preventing him

      from getting a job, other than “a lack of effort.” (Tr. Vol. 3 at 17).


[7]   For each conviction, the trial court imposed a two and one-half (2½) years

      sentence, with one (1) year executed on community corrections in a work

      release program and one and one-half (1½) years suspended to probation. The

      trial court ordered that the sentences be served consecutively, resulting in an

      aggregate five (5) year sentence, with two (2) years executed on community

      corrections in a work release program and three (3) years suspended to

      probation. The trial court also ordered Lane to pay restitution for the more

      than $50,000.00 he owed in child support arrearages. Lane now appeals.


                                                  Decision
[8]   Lane argues that his aggregate five-year sentence was inappropriate. Before we

      address his argument, we note that Lane fails to acknowledge that his aggregate

      sentence contained absolutely no executed time in the Indiana Department of

      Correction. Instead, the trial court ordered Lane to serve this aggregate five-

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1283 | October 31, 2018   Page 4 of 7
       year sentence, with two years executed on community corrections in a work

       release program and three years suspended to probation.


[9]    We may revise a sentence if it is inappropriate in light of the nature of the

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

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) 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 v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is

       inappropriate ultimately turns on “the culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case.” Id. at 1224. Additionally, “[u]nder Indiana law,

       several tools are available to the trial court to use in fashioning an appropriate

       sentence for a convicted offender.” Sharp v. State, 970 N.E.2d 647, 650 (Ind.

       2012). These “penal tools”—which include suspension of all or a portion of the

       sentence, probation, executed time in a Department of Correction facility, and

       placement in a community corrections program—“form an integral part of the

       actual aggregate penalty faced by a defendant and are thus properly considered

       as part of the sentence subject to appellate review and revision.” Id. (citing

       Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010)).


[10]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1283 | October 31, 2018   Page 5 of 7
       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, a jury found Lane guilty on two counts of Level 6 felony nonsupport of a

       dependent child. A Level 6 felony has a sentencing range of six (6) months to

       two and one-half (2½) years with an advisory sentence of one (1) year. I.C. §

       35-50-2-7(b). For each conviction, the trial court imposed a two and one-half

       (2½) years sentence, with one (1) year executed on community corrections in a

       work release program and one and one-half (1½) years suspended to probation.

       Thus, the trial court utilized some of the available “penal tools” to fashion a

       sentence for Lane. See Sharp, 970 N.E.2d at 650.


[11]   The nature of Lane’s offense involved his failure to pay court-ordered child

       support for two of his children for multiple years, even after he had been held in

       contempt for non-payment. For these two children, Lane owed more than

       $50,000.00. The mothers of his children had to resort to court intervention to

       try to get Lane to pay support.


[12]   Turning to Lane’s character, we note that Lane has eight children, three of

       whom he was behind in court-ordered child support. Lane had a GED but

       relied on his parents to financially support him since 2004 when he had last

       been employed. As the trial court noted, Lane was “an able-bodied person”

       who did not have anything preventing him from getting a job, other than “a

       lack of effort.” (Tr. Vol. 3 at 17). We acknowledge that Lane did, however,

       obtain employment after his jury trial. The trial court used some of the penal

       tools available at sentencing and gave Lane the opportunity to enter a work

       release program where he could work and make payments towards the owed

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1283 | October 31, 2018   Page 6 of 7
       child support. Also, the trial court placed Lane on probation. Additionally, in

       considering Lane’s character, we note that he has a prior criminal history that

       includes convictions for sexual misconduct with a minor and resisting arrest.


[13]   Lane has not persuaded us that his aggregate five-year sentence, with two years

       executed on community corrections in a work release program and three years

       suspended to probation, for his two convictions of Level 6 felony nonsupport of

       a dependent child is inappropriate. Therefore, we affirm the sentence imposed

       by the trial court.


[14]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1283 | October 31, 2018   Page 7 of 7
