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.
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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.
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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.
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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
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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
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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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