Eric E. Markwith v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 16, 2020
• Docket: 19A-CR-2427
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 16 2020, 9:12 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric E. Markwith, April 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2427 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Gregory S. Loyd, Appellee-Plaintiff. Judge Pro Tem Trial Court Cause No. 79D04-1904-CM-1949

Mathias, Judge.

[1] Eric E. Markwith entered an open plea of guilty to Class A misdemeanor

possession of a synthetic drug in Tippecanoe Superior Court. The trial court

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020 Page 1 of 5 imposed a 365-day executed sentence, which Markwith contends is

inappropriate in light of the nature of the offense and his character as an

offender.

[2] We affirm.

Facts and Procedural History [3] On July 24, 2018, Markwith was incarcerated at the Tippecanoe County Jail. A

member of the county sheriff’s department investigated a burning smell and

discovered Markwith using batteries to light a joint. A subsequent search of

Markwith’s cell revealed a second joint. The contraband was sent to the Indiana

State Police laboratory, where lab technicians confirmed the presence of a

synthetic drug. Markwith received a jail sanction consisting of thirty days in

segregation, during which he was confined to a cell for twenty-three hours a

day.

[4] On April 16, 2019, the State charged Markwith with Class A misdemeanor

possession of a synthetic drug. Markwith entered an open plea of guilty to the

offense, and a judgment of conviction was entered on September 18, 2019. The

trial court proceeded directly to sentencing and heard testimony about several

pending charges against Markwith in other Indiana counties, as well as

Markwith’s numerous prior convictions. The trial court sentenced Markwith to

a term of 365 days executed in the Tippecanoe County Jail, the maximum

penalty for a Class A misdemeanor. Markwith now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020 Page 2 of 5 Discussion and Decision [5] Markwith argues that his sentence is inappropriate in light of the nature of his

offense and his character as an offender. Indiana Rule of Appellate Procedure

7(B) authorizes appellate courts to “revise a sentence authorized by statute if,

after due consideration of the trial court’s decision, the Court finds that the

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

of the offender.” See also Gibson v. State, 51 N.E.3d 204, 215 (Ind. 2016).

[6] In considering whether Rule 7(B) sentence revision is warranted, we “refrain

from merely substituting our judgment for that of the trial court.” Golden v.

State, 862 N.E.2d 1212, 1218 (Ind. Ct. App. 2007), trans. denied. The question

under Rule 7(B) review is not whether another sentence is more appropriate,

but instead whether the sentence imposed is inappropriate. King v. State, 894

N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the defendant’s burden on appeal to

persuade the Court that a sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

[7] Markwith argues that his sentence is inappropriate in light of the nature of the

offense. In considering whether a sentence is inappropriate in light of the nature

of the offense, we compare the elements of the offense to the “details and

circumstances of the commission of the offense.” Townsend v. State, 45 N.E.3d

821, 831 (Ind. Ct. App. 2015), trans. denied. When Markwith committed the

offense in question, Indiana Code section 35-48-4-11.5(c) (repealed July 1,

2019) read “a person who knowingly or intentionally possesses a synthetic drug

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020 Page 3 of 5 . . . commits possession of a synthetic drug . . . a Class A misdemeanor.”

Though Markwith was convicted of a misdemeanor offense, excusing the trial

court from articulating and balancing aggravating and mitigating circumstances

as part of its sentencing statement, such circumstances may still inform the trial

court’s sentencing decision. See Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct.

App. 2016); see also Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (stating

that sentencing statements identifying aggravators and mitigators are required

“whenever imposing sentence for a felony offense”).

[8] Here, Markwith’s offense was committed within a county jail while he was

incarcerated for an unrelated charge. This detail is a valid aggravating

circumstance in the commission of an offense. See Hines v. State, 30 N.E.3d

1216, 1226 (Ind. 2015) (noting as relevant to nature of the offense that battery

was committed in prison). That Markwith possessed a synthetic drug, however,

did not cause physical injury to another, nor did it cause property loss. Our

preference is to reserve maximum sentences for “the very worst offenses,”

including those that result in physical injury or property loss. Buchanan v. State,

699 N.E.2d 655, 657 (Ind. 1998); see also I.C. § 35-38-1-7.1(b)(1) (“The court

may consider . . . as favoring suspending the sentence and imposing probation:

(1) The crime neither caused nor threatened serious harm to persons or

property”). We also observe that because the location of the offense was within

a jail, Markwith was punished for the infraction with a thirty-day jail sanction.

[9] Markwith additionally argues that his sentence is inappropriate in light of his

character as an offender. A defendant’s criminal history is relevant to our

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020 Page 4 of 5 broader consideration of his character under Rule 7(B) review. See Garcia v.

State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. The significance

of criminal history will vary based upon the “gravity, nature and number of

prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d

261, 263 (Ind. 2008) (internal quotation marks and citation omitted). Prior to

the instant offense, Markwith had amassed twenty-seven convictions. The State

allows that, while Markwith’s crime is “not the most egregious crime,” his

criminal history indicates that he has a clear disregard for the law. Appellee’s

Br. at 9. We cannot disagree with this assessment and therefore conclude that

Markwith has failed to demonstrate that his sentence is inappropriate in light of

his character as an offender.

Conclusion [10] Based on Markwith’s extensive criminal history, we decline to grant relief under

Appellate Rule 7(B) for sentence inappropriateness.

[11] Affirmed.

Riley, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020 Page 5 of 5