Dustin A. Lane v. State of Indiana
22A-CR-2276
COURT OF APPEALS OF INDIANA
May 25, 2023
Crone, Judge; Robb, J., concurs; Kenworthy, J., dissents with separate opinion.
ATTORNEY FOR APPELLANT
Daniel A. Dixon
Lawrence County Public Defender Agency
Bedford, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Steven J. Hosler
Deputy Attorney General
Indianapolis, Indiana
Opinion by Judge Crone
Judge Robb concurs.
Judge Kenworthy dissents with separate opinion.
Case Summary
[1] Dustin A. Lane appeals the 3,000-day aggregate sentence imposed by the trial court following his guilty plea to ten counts of class A misdemeanor invasion of privacy. He asserts that his sentence is inappropriate in light of the nature of the offenses and his character. Concluding that he has met his burden to demonstrate that his sentence is inappropriate, we revise his sentence and remand to the trial court with instructions.
Facts and Procedural History
[2] In 2018, Lane was convicted of level 6 felony domestic battery resulting in moderate bodily injury. The trial court issued a no-contact order prohibiting him from direct or indirect contact with the victim, his ex-wife A.N. While that order was still in place, between March 2020 and September 2021, Lane sent separate letters, approximately one per month, to A.N. Lane sent the letters while he was still incarcerated in the Indiana Department of Correction (DOC) serving his sentence for domestic battery. The letters primarily addressed questions about the parties’ children. A.N. responded to Lane‘s letters at least six times. As noted by the trial court, this created a back-and-forth dialogue between Lane and A.N. A.N. never requested that Lane cease corresponding with her through these letters.
[3] Lane sent his last letter to A.N. on September 20, 2021. Several months later, on January 13, 2022, A.N. reported the letters (and that they violated the no-contact order) to the police. Thereafter, the State charged Lane with ten counts of class A misdemeanor invasion of privacy. Lane pled guilty to all charges pursuant to a plea agreement that left sentencing to the trial court‘s discretion. Following a hearing, the trial court sentenced Lane to consecutive 300-day sentences on each count, to be served in the DOC, for an aggregate executed sentence of 3,000 days. During the same hearing, Lane admitted that he violated his probation on his domestic battery conviction by committing invasion of privacy. Accordingly, the trial court revoked his probation and ordered him to serve 730 days of his previously suspended sentence consecutively to his
Discussion and Decision
[4] Lane asks us to revise his sentence pursuant to
[5] Although
[6] First, we acknowledge that a review of Lane‘s character does not weigh in favor of sentence revision. An offender‘s character is shown by his “life and conduct.” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App. 2019). This assessment includes consideration of the defendant‘s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Lane has a substantial criminal history including seven prior felony convictions. This includes convictions for domestic battery, criminal confinement, sexual misconduct with a minor, criminal recklessness, and dealing in methamphetamine. Lane‘s criminal history demonstrates his clear and continuing disregard for the rule of law, which reflects negatively on his character. And although we view in a positive light that Lane accepted responsibility for his behavior in pleading guilty to his crimes, the current crimes were committed while he was incarcerated, which demonstrates a disdain for authority that reflects poorly upon him. In sum, when viewed in isolation, there is nothing about Lane‘s character that would sway us to find that the sentence imposed by the trial court was inappropriate.
[7] The nature of Lane‘s offenses, on the other hand, persuades us that the trial court simply went too far in imposing ten consecutive close-to-maximum 300-day sentences for these class A misdemeanors. See
order when she responded to the letters at least six times, encouraging and engaging Lane in a back-and-forth dialogue. Moreover, it does not appear from the record that A.N. ever asked Lane to stop the correspondence. A.N. did not report any of Lane‘s violations of the no-contact order until January of 2022, four months after receiving the last letter, when Lane was nearing his release date from the DOC.2
[8] All in all, Lane‘s letter writing resulted not only in ten consecutive 300-day sentences, but also in the revocation of his probation and execution of 730 days of his previously suspended sentence, to be served consecutively to these misdemeanor sentences. While by no means do we condone Lane‘s repeated violations of the trial court‘s no-contact order, upon balancing the relatively nonthreatening nature of these violations and Lane‘s character, we are persuaded that the trial court‘s 3,000-day aggregate executed sentence is inappropriate.
[9] The dissent obviously has sincere and strongly held beliefs about domestic violence. And while no one on this Court condones violence in any context, this is not a case of a domestic violence conviction. This case involves a review of the sentence imposed for ten misdemeanor counts of invasion of privacy.
Our well-settled function in a 7(B) review is to leaven the outliers and apply the law in a dispassionate and evenhanded manner. Lane was sentenced to serve an aggregate executed term of ten and a half years in the Department of Correction for writing ten nonthreatening letters to his ex-wife primarily asking about the kids.3 We are guided in appellate review to focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count. Cardwell, 895 N.E.2d at 1225. When we look at the “forest,” as opposed to the “trees” here,
[10] In revising a sentence, “there is no right answer in any given case.” Stidham, 157 N.E.3d at 1197 (citation omitted). Rather, our review and revision ultimately boils down to our collective sense of what is appropriate. Id. We conclude that Lane‘s ten 300-day sentences should be served concurrently.
Thus, we revise his aggregate sentence from 3,000 days to 300 days and remand to the trial court to enter a sentencing order consistent with this opinion.
[11] Remanded.
Robb, J., concurs.
Kenworthy, J., dissents with separate opinion.
Kenworthy, Judge, dissenting.
[12] I cannot join the majority in revising Lane‘s sentence. Here, Dustin Lane used the prison mail system to commit ten distinct criminal offenses against the same victim. Indeed, Lane repeatedly violated a no-contact order designed to protect A.N. while Lane was (1) in prison for committing Level 5 felony criminal confinement against A.N., resulting in her bodily injury,5 and (2) facing a suspended sentence in a separate cause for committing Level 6 felony domestic battery against A.N., where Lane had “grabbed [A.N.], dr[agged] her, hit her repeatedly in the ribs, the back, her legs, strangled her, pushed her down, and dr[agged] her down a hallway.” Tr. Vol. 2 at 44.
[13] In reflecting on Lane‘s relentless criminal conduct against her—involving nearly two decades of abuse—A.N. recalled “press[ing] charges back in August of 2018,6 and [Lane] was arrested on a Friday, and the judge let him out on his own recognizance that following Monday“; he “was right back at [her] house manipulating and intimidating [her], taunting [her]. Letting [her] know there was nothing [she] could do.” Id. at 42-43. And here we are again.
[14] In choosing to write A.N., Lane anticipated his impending release from prison and he knew “[h]is family w[ould] not be there to support him[.]” Id. at 41. Lane also knew there was a no-contact order prohibiting him from contacting
[15] Initially, A.N. responded. Then A.N. realized Lane had led her down this insidious path before. A.N. detailed how Lane would gain power over her, and how she recognized Lane‘s “manipulation tactics” at work in the letters. Id. at 41. She explained how Lane‘s communications would “start out fine at first.” Id. But at some point, Lane would add undercurrents of blame, trying to make A.N. feel “this is all [her] fault.” Id. Eventually, Lane would exert control over A.N., relaying “his expectations of how things would be once he ... is released.” Id. As A.N. put it, the letters reflected the “same cycle [she had] seen through the years of ... domestic abuse” inflicted by Lane. Id.
[16] A.N. knew Lane and his communication patterns well, explaining:
I have been entangled with Dustin Lane ... for the last 18 years. In those 18 years, we have been married and divorced twice, had two children, separation, several arrest[s], relocations, rehabilitations, relapse, new beginnings, and many endings. We have argued, fought, moved, lost everything, started over more times than ... I can count.
Id. A.N. spoke about how “[t]he abuse started back in [the] first year [they] were together, the manipulation, intimidation, fear, physical, mental, and emotional abuse.” Id. at 41-42. She gave examples: “He has told me he will always be watching me and knows my every move, making me feel like I would and will need to watch over my shoulder everywhere I go, even in my own home. He has told me he would kill me or kill my family while I watched.” Id. at 42. “He has become my family‘s dictator. He has slashed my tires, beat me many, many times. Our children‘s presence is not a deterrent.” Id. She spoke about how, at times, Lane would “use the Bible to twist anything and everything” she said, or “bend the words” of scripture “to suit him.” Id.
[17] A.N. explained how she recognized this “same cycle” manifesting in Lane‘s letters. Id. at 41. She spoke about how, although she at first wrote back, upon recognizing the strategic nature of Lane‘s communications, she “decided not to respond to the manipulation tactics.” Id. A.N. also spoke about how Lane was using similar communication techniques with their children, beginning to “set the tone with his expectations of them as well, how they can support him, how they can be there[.]” Id. at 43. She spoke about how their eldest daughter continued to cope
[18] The State charged Lane with the ten counts of invasion of privacy at issue here,9 and Lane pleaded guilty. In sentencing Lane, the trial court imposed 300 days for each count. The court ran those sentences consecutive to one another, for an aggregate sentence of 3,000 days—just over eight years in the Indiana Department of Correction. It is undisputed the offenses were not part of a single episode of criminal conduct; rather, each letter was a distinct invasion of A.N.‘s privacy. It is also undisputed the sentence imposed by the trial court is authorized by statute. See
the victim back in to try to re-establish the relationship only for it to all go south again when those behaviors re-emerge[.]“); see also, e.g., id. at 42 (giving a victim statement, recounting seeing Lane “gash his mother‘s head open off a wall clock, giving her a concussion,” and “dragg[ing] [his mother] across a driveway by the hair embedding rocks into her knees and gashing them open along the way[,] with [A.N.] in the other hand ... and [their] daughter witnessing it all“).
Discussion of Majority Approach
[19] Despite Lane‘s relentless criminal conduct—and evidence Lane was trying to regain power over A.N. and thereby reinitiate the cycle of domestic violence—the majority reduces Lane‘s sentence by 90%, transforming Lane‘s sentence from 8.2 years to just ten months. In doing so, the majority acknowledges “a review of Lane‘s character does not weigh in favor of sentence revision.” Supra at 4. Rather, revision hinges on the nature of Lane‘s latest criminal conduct, i.e., revictimizing A.N. by invading her privacy and writing letters with emotionally charged content and disturbing undercurrents. See, e.g., Ex. (Elec.) “SAM_5562.JPG” (writing to A.N.; criticizing her parenting skills; telling A.N. she is “emotionally and psychologically abusive“; and noting that, although he forgives her for certain things, he does not forgive her for others). The majority implicitly determines the nature of these crimes was innocuous enough to make Lane the “rare and exceptional” defendant deserving a revised sentence under
[20] But I cannot say Lane deserves appellate grace. Rather, in light of (1) Lane‘s especially poor character reflected through his history of violence and apparent
Nature of the Offenses
[21] First, to disturb a sentence based on the nature of the criminal offenses, an appellate court must identify “compelling evidence portraying the nature of the offense[s] in a positive light.” Ramirez v. State, 174 N.E.3d 181, 202 (Ind. 2021).10 Our Supreme Court has given three examples of compelling evidence, i.e., evidence the criminal conduct was “accompanied by restraint, regard, and lack of brutality.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015); see also Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (again giving these examples).
[22] Yet in revising Lane‘s sentence based on the nature of the offenses, the majority does not refer to the standard requiring “compelling evidence,” nor does the majority address any of the examples provided by our Supreme Court. Further, the majority does not discuss or mention (1) A.N.‘s victim statement, (2) the State‘s arguments that the evidence shows Lane was reinitiating the cycle of domestic violence, or (3) the trial court‘s statements acknowledging the State‘s arguments and giving those arguments some weight in selecting the sentence.
[23] As I read
A.N. did not object to Lane‘s violations of the no-contact order when she responded to the letters at least six times, encouraging and engaging Lane in a back-and-forth dialogue. Moreover, it does not appear from the record that A.N. ever asked Lane to stop the correspondence. A.N. did not report any of Lane‘s violations of the no-contact order until January of 2022, four months after receiving the last letter, when Lane was nearing his release date from the DOC.
Supra at 5-6.
[24] Yet “[p]rotection orders are about the behavior of the respondent and nothing else.” Patterson v. State, 979 N.E.2d 1066, 1069 (Ind. Ct. App. 2012) (quoting State v. Lucas, 795 N.E.2d 642, 647 (Ohio 2003)). Indeed, “our General
[25] Rather, Indiana law prefers to focus on the defendant‘s conduct—and this policy preference makes sense. That is, focusing on the victim‘s conduct (especially a victim subjected to cycles of emotional and physical abuse spanning eighteen years) would vitiate the protective effect of a no-contact order in these emotionally fraught scenarios. Further, focusing on a victim‘s response overlooks “manipulation tactics” at work in correspondence where—as here—there is evidence the defendant was trying to reengage the victim.
[26] In short, that A.N. initially responded to Lane shows only that Lane‘s communication strategy was initially effective; he repeatedly bypassed the no-contact order as he tried to gradually regain control over A.N. with his tried-and-true “manipulation tactics.” Tr. Vol. 2 at 41. The strategy worked, with A.N. responding until she recognized the patterns of her longtime abuser. Thus, to the extent the majority suggests Lane is less culpable because A.N. initially responded to Lane‘s strategic communications, I cannot say A.N.‘s actions render Lane‘s sentence any less appropriate. Ultimately, it is not A.N.‘s fault Lane chose to violate the no-contact order and begin writing to her. And although the majority suggests A.N. should have told Lane to stop violating the law in this way, I cannot say it is a victim‘s responsibility to stop an abuser.
Deference to the Trial Court
[27] More basically,
[28] Here, the majority revises Lane‘s sentence without mentioning the trial
[29] The trial court further reflected on Lane‘s decision to repeatedly violate the no-contact order, pointing out that Lane‘s criminal conduct “constitute[ed] invasion of privacy times 10.” Id. at 56 (“No question he violated the law 10 times.“). The court placed these repetitive criminal transgressions in context, noting Lane already had extensive contact with the criminal justice system and “knew he was not supposed to have contact ... with this victim.” Id. at 55.
[30] At bottom, to comply with the spirit and purpose of
Fully Concurrent Sentences
[31] Next, I take exception to the majority‘s decision to impose fully concurrent sentences, thereby determining Lane should serve less than one year in prison. The imposition of concurrent sentences in this case conflicts with guidance from the Indiana Supreme Court. That is, in Cardwell v. State—which the majority cites—our Supreme Court first explained that our review under
[32] By ordering concurrent sentences here, the majority eliminates the practical consequences of Lane‘s repeated violations of the no-contact order, contrary to the guidance in Cardwell. In short, the majority imposes no consequences for the trajectory of Lane‘s letter-writing or the
[33] As to the impacts of Lane‘s choice to repeatedly violate A.N.‘s privacy, A.N. spoke in detail about why she initially responded to Lane—“I‘m a parent, I would want to know about my children so I would respond“—until she realized his motive: “I started feeling expectations, and this is how it‘s going to be, or this is what I want you to do, and it felt manipulative. ... [I]t‘s always good at first, then everything else comes in behind it. So I stopped responding.” Tr. Vol. 2 at 50. A.N. explained how Lane “terrorizes” her, id. at 42, and had taken advantage of her past willingness to give Lane “the opportunity to change,” id. at 43. A.N. spoke about how she and the family “have never experienced peace the past couple of years[.]” Id. She concluded her victim statement as follows:
I have no more to give. I have finally decided to choose to believe ... who he has shown himself to be.
One of the many things I have learned through all of this is that it is the same exact cycle repeated over again and again, and it ... never stops or changes. It only can ... get continuously worse with each release. In conclusion, I do not feel safe or have any kind of security with the chance of his release.
Id. at 44.
[34] The majority characterizes Lane‘s letter-writing as “relatively nonthreatening” in nature. Supra at 6. But A.N.‘s victim statement shows otherwise. In any case, there is ample evidence Lane‘s ongoing criminal transgressions impacted A.N., causing her to reflect on how Lane had abused her in the past, and to realize Lane was reinitiating that cycle of domestic violence through his letters. And then Lane kept writing, even after A.N. stopped replying. He repeatedly invaded A.N.‘s privacy in this way, directing criminal conduct toward A.N. over a period of eighteen months. Yet the majority revises Lane‘s sentence to an aggregate sentence of just ten months. This revised sentence is far shorter than the timeline of the instant criminal conduct toward A.N., underscoring why fully concurrent sentences are inappropriate under the circumstances.11
Criminal Sentencing vs. Probation Revocation
[35] At one point the majority suggests the trial court imposed too severe of a sentence because it “not only [imposed] ten consecutive 300-day sentences” in this cause, “but also ... revo[ked] [Lane‘s] probation” in a separate cause. Id. at 6; see also id. at 7 n.3. But it is a separate procedural matter that Lane violated a condition of his probation by committing
portraying in a positive light the nature of the offense[s] ... and the defendant‘s character[.]” Stephenson, 29 N.E.3d at 122; see also Wright, 168 N.E.3d at 270).12
Comparisons to Dissimilar Cases
[36] In a footnote, the majority compares Lane‘s sentence to sentences imposed in cases involving different criminal offenses. See supra at 7 n.4 (comparing Lane‘s sentence to sentences in cases involving Level 3 felony rape, Level 6 felony domestic battery, and Level 5 felony domestic battery). To be sure, this Court may (but need not) look to sentences imposed in other cases when deciding whether the instant sentence is inappropriate. See, e.g., Knight v. State, 930 N.E.2d 20, 22 (Ind. 2010). However, the Indiana Supreme Court has indicated these types of comparisons are proper only when the other cases involve “the same or similar crimes.” Id. (quoting Trowbridge v. State, 717 N.E.2d 138, 150 (Ind. 1999)). Moreover, this Court has generally found little value in the practice. See, e.g., Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002) (“We should concentrate less on comparing the facts of this case to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it
reveals about the defendant‘s character.“), trans. denied. Therefore, I cannot join the majority in collecting cases based exclusively on the panel deciding those cases rather than on similarities in the cases themselves. See supra at 7 n.4.
Conclusion
[37] All in all, when it comes to sentence revision under