MEMORANDUM DECISION                                                                   FILED
                                                                               May 25 2016, 7:34 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                          CLERK
                                                                                Indiana Supreme Court
precedent or cited before any court except for the                                 Court of Appeals
                                                                                     and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth A. Johnson                                          Gregory F. Zoeller
Michael R. Fisher                                        Attorney General of Indiana
Marion County Public Defender Agency
                                                         Richard C. Webster
Indianapolis, Indiana
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Marlon Coley,                                            May 25, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1511-CR-1932
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Clark Rogers, Judge.
State of Indiana,                                        Cause No. 49G25-1501-F6-2638
Appellee-Plaintiff.




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1932 | May 25, 2016             Page 1 of 7
                                           Statement of the Case
                                                                                               1
[1]   Marlon Coley pleaded guilty to forgery and perjury, both Level 6 felonies. He

      was sentenced to 730 days, to be served in the Indiana Department of

      Correction (DOC). He appeals the sentence, specifically his placement with the

      DOC, contending it is inappropriate. We affirm.


                                                            Issue
[2]   The sole issue Coley raises for our review is whether his placement in the DOC,

      to serve his sentence of 730 days, is inappropriate in light of the nature of his

      offenses and his character.


                                    Facts and Procedural History
[3]   On July 18, 2014, Coley was arrested for felony theft and misdemeanor

      receiving stolen property for taking merchandise from a Big Lots store. He was

      on parole at the time for a prior felony theft conviction. When he was arrested,

      Coley falsely identified himself to the arresting officer as Anthony Moore.

      Anthony Moore is Coley’s brother.


[4]   After his arrest, Coley was transported to the Marion County Arrestee

      Processing Center where again he identified himself as Anthony Moore. Coley

      was processed and fingerprinted under that name, attended several hearings at




      1
          Ind. Code § 35-43-5-2(d)(1) (2014) (forgery).

          Ind. Code § 35-44.1-2-1(a)(1) (2014) (perjury).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1932 | May 25, 2016   Page 2 of 7
      the processing center and in Marion County courtrooms under that name, and

      signed several court documents using that name.


[5]   On September 16, 2014, during a pretrial conference, Coley’s true identity was

      revealed by his attorney. On December 4, 2014, Coley gave a statement to a

      sergeant with the Marion County Sheriff’s Office and a detective with the

      Indianapolis Metropolitan Police Department, admitting that he signed three
                                                     2
      court documents as Anthony Moore.


[6]   The State charged Coley with three counts of forgery, as Level 6 felonies, and

      one count of perjury, as a Level 6 felony. Coley entered into a written plea

      agreement and agreed to plead guilty to one count of Level 6 felony forgery and

      one count of Level 6 felony perjury. The remaining charges were dismissed.

      Under the terms of the plea agreement, Coley agreed to a sentence of 730 days

      executed on each count, to be served concurrently. Coley’s placement

      remained open to argument.


[7]   At the combined plea agreement/sentencing hearing, Coley pleaded guilty and

      was sentenced per the terms of the plea agreement. The trial court ordered

      Coley to serve his sentence in the DOC, stating specifically:

              . . . With that being said my sentencing statement again is he’s
              had twelve, like I stated, twelve felony conviction[s], six



      2
       The three court documents Coley signed using his brother’s name were an Initial Hearing Rights form, a
      Motion for Stay Away Order Upon Release on Bond or Personal Recognizance, and a Petition and Order for
      Appointment of Counsel.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1932 | May 25, 2016         Page 3 of 7
              misdemeanors. He has not been successful on the pretrial
              release. So with that being said I will accept the plea. Be bound
              be [sic] the terms and conditions of the plea. He will do the
              seven thirty in the Department of Correction. And that is
              concurrent.
      Tr. p. 12.

                                   Discussion and Decision
[8]   Coley’s sole contention on appeal is that requiring him to serve his sentence of

      730 days in the DOC is inappropriate in light of the nature of his offenses and

      his character. He asks this Court to revise the placement for the service of his

      sentence.


[9]   This Court “may revise a sentence authorized by statute if, after due

      consideration of the trial court’s decision, [we find] the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender.” Ind. Appellate Rule 7(B). The place a sentence is to be served is an

      appropriate basis for an appeal under Rule 7(B). See Biddinger v. State, 868

      N.E.2d 407, 414 (Ind. 2007). “We conduct [review of a sentence] with

      substantial deference and give ‘due consideration’ to the trial court’s decision.”

      Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). A defendant bears the burden

      of persuading the appellate court that his sentence has met the

      inappropriateness standard of review. Anglemyer v. State, 868 N.E.2d 482, 494

      (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). It is “quite difficult” for a

      defendant to prevail on a claim that his placement is inappropriate because “the

      question under Appellate Rule 7(B) is not whether another sentence is more


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1932 | May 25, 2016   Page 4 of 7
       appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Fonner v. State, 876 N.E.2d 340, 343-44 (Ind. Ct. App. 2007).


[10]   According to Coley, his sentence is inappropriate in light of the nature of his

       offenses because “[the] crimes arose out of [Coley’s] use of his brother’s identity

       in order to avoid further incarceration on what he believed to be an outstanding

       warrant;” “[h]is offenses . . . did not arise from any attempt to defraud or steal

       money from anyone;” and “there were no personal victims who suffered

       financial consequences as a result of his [dishonesty].” Appellant’s Br. p. 9.

       Regarding his character, Coley urges this Court to “focus on the changes in

       [his] life.” Id. at 10. He has attended barber college; he has become the father

       of a young child; and, he is no longer homeless, which, according to Coley

       would make it possible for him to successfully complete home detention, if this

       Court so ordered.


[11]   Looking at the nature of Coley’s offenses, Coley lied to police, processing

       center staff, and court staff regarding his identity. It was not until September,

       16, 2014, nearly two months after Coley’s arrest, that his true identity was

       revealed. Coley seems to imply that his offenses are harmless because there was

       no victim. However, his offenses should not be taken lightly because they




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1932 | May 25, 2016   Page 5 of 7
       continued to cause confusion within the court system even after Coley properly
                                3
       identified himself.


[12]   As to Coley’s character, he has been arrested at least forty-three times as an

       adult. He has a criminal history that began in 1988 and continues to the

       present, including: misdemeanor possession of marijuana/hash oil, or hashish

       (1988); class B felony robbery and misdemeanor resisting law enforcement

       (1994); misdemeanor possession of marijuana/hash oil or hashish (1997); class

       B felony dealing in cocaine or narcotic (1997); misdemeanor domestic battery

       (2000); misdemeanor criminal conversion (2002); class D felony theft/receiving

       stolen property and misdemeanor criminal trespass (2003); class D felony

       theft/receiving stolen property (2004); misdemeanor possession of

       paraphernalia (2005); class D felony theft/receiving stolen property (2006);

       misdemeanor criminal trespass and class D felony residential entry (2007); class

       D felony possession of marijuana/hash/synthetic cannabinoid (2008); class D

       felony theft/receiving stolen property (2009); class D felony possession of

       cocaine or narcotic (2011); class D felony theft (2013); misdemeanor theft and

       Level 6 felony forgery and perjury (2014). Coley repeatedly violated terms of

       probation, and his probation has been revoked seven times.




       3
         A pretrial conference was held on November 12, 2014, in the matter of the felony theft Coley committed at
       the Big Lots store. Because Coley falsely identified himself, the case was captioned State of Indiana v. Anthony
       Moore. At the pretrial conference, the court stated: “Okay I [sic] for the record I want to return the letter
       from Judge Lloyd to Mr., um, is your true name Anthony Moore[?]” See Appellant’s App. p. 15. Coley
       answered, “I’m Marlon Coley.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1932 | May 25, 2016                  Page 6 of 7
[13]   Coley also has shown a penchant for committing crimes shortly after his release

       from custody. Following the July 18, 2014 felony theft that occurred at the Big

       Lots store and led to his commission of forgery and perjury, Coley was released

       from custody. On November 30, 2014, Coley committed theft at another store.

       He was released to home-detention and was required to wear an electronic

       ankle monitor. Coley removed the ankle monitor and committed theft at yet

       another store on December 12, 2014.


[14]   Coley has not met his burden of persuading us that the chosen placement for

       execution of his sentence is inappropriate. In light of the nature of the offenses

       and Coley’s character, we cannot conclude the trial court’s decision to place

       Coley in the DOC is inappropriate.


                                                Conclusion
[15]   For the reasons stated, we conclude Coley’s sentence is not inappropriate given

       the nature of the offenses and his character.


[16]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1932 | May 25, 2016   Page 7 of 7
