Kenneth S. Marshall v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 13, 2015
• Docket: 39A01-1405-CR-204
• Status: Published

Opinion

MEMORANDUM DECISION Feb 13 2015, 9:10 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 R. Patrick Mcgrath Gregory F. Zoeller Alcorn Goering & Sage, LLP Attorney General of Indiana Madison, Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth S. Marshall, February 13, 2015

Appellant-Defendant, Court of Appeals Cause No. 39A01-1405-CR-204 v. Appeal from the Jefferson Superior Court Cause No. 39D01-1209-FB-1100 State of Indiana, Appellee-Plaintiff. The Honorable Alison T. Frazier, Judge

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 1 of 6 Case Summary [1] Kenneth Marshall appeals his sentence for Class B felony burglary and his

status as an habitual offender. We affirm.

Issues [2] Marshall raises two issues, which we restate as:

I. whether the trial court erred by finding that Marshall’s habitual offender enhancement was nonsuspendable; and

II. whether the trial court erred by failing to grant Marshall placement in community corrections.

Facts [3] In September 2012, Marshall entered his neighbor’s apartment and took money

from the neighbor’s wallet. The State charged Marshall with Class B felony

burglary, Class D felony theft, and alleged that he was an habitual offender.

Marshall pled guilty to Class B felony burglary and to being an habitual

offender. The trial court initially sentenced Marshall to the minimum sentence

of six years for the Class B felony enhanced by the minimum habitual offender

enhancement of ten years with the ten-year enhancement suspended to

probation. The State filed a motion to correct erroneous sentence, arguing that

the habitual offender enhancement was nonsuspendable. The trial court

granted the State’s motion and corrected Marshall’s sentence. In May 2014, the

trial court sentenced Marshall to six years for the Class B felony enhanced by

Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 2 of 6 the minimum habitual offender enhancement of ten years with none of the

sentence suspended. Marshall now appeals.

Analysis I. Suspendability of Habitual Offender Enhancement

[4] Marshall argues that the trial court should have ordered his ten-year habitual

offender enhancement to be suspended. Sentencing decisions rest within the

sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g by 875 N.E.2d 218 (Ind. 2007). Accordingly, sentencing

decisions “are reviewed on appeal only for an abuse of discretion.” Id.

[5] The minimum sentence for a Class B felony conviction is six years, which the

trial court imposed here. See Ind. Code § 35-50-2-5. Marshall was also found to

be an habitual offender. “A habitual offender finding does not constitute a

separate crime nor result in a separate sentence, but rather results in a sentence

enhancement imposed upon the conviction of a subsequent felony.” Greer v.

State, 680 N.E.2d 526, 527 (Ind. 1997). At the time of his offense, Indiana

Code Section 35-50-2-8 provided that the trial court “shall sentence a person

found to be a habitual offender to an additional fixed term that is not less than

the advisory sentence for the underlying offense nor more than three (3) times

the advisory sentence for the underlying offense.” The advisory sentence for a

Class B felony was ten years. Consequently, the minimum habitual offender

sentencing enhancement for Marshall’s offense was ten years. This results in a

Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 3 of 6 minimum possible sentence for Marshall’s offense of sixteen years, which the

trial court imposed.

[6] Marshall’s minimum sentence was nonsuspendable under Indiana Code

Section 35-50-2-2(b)(1) because Marshall had prior unrelated felony

convictions. See I.C. § 35-50-2-2(b)(1) (noting that a “court may suspend only

that part of the sentence that is in excess of the minimum sentence” where

“[t]he crime committed was a Class A felony or Class B felony and the person

has a prior unrelated felony conviction”) (repealed by P.L. 158-2013, § 653 (eff.

July 1, 2014)). Thus, the trial court properly found that Marshall’s minimum

sixteen-year sentence was nonsuspendable. See, e.g., Bauer v. State, 875 N.E.2d

744 (Ind. Ct. App. 2008) (holding that the trial court only could suspend that

portion of the sentence in excess of three and one-half years, which was the

minimum sentence for a Class D felony enhanced by an habitual substance

offender finding), trans. denied; Young v. State, 901 N.E.2d 624 (Ind. Ct. App.

2009), trans. denied.

[7] Marshall requests that we reconsider the holdings in Bauer and Young and many

other cases with similar holdings. We decline to so do. The State properly

points out that, had the legislature disagreed with our interpretation, it had

many opportunities to correct our approach. See, e.g., Bailey v. State, 979 N.E.2d

133, 141 (Ind. 2012) (“Certainly, had the General Assembly disapproved of our

approach and desired to create a threshold standard for physical pain, it could

have done so. In the absence of such a change, we think it fair to infer a

persuasive degree of legislative acquiescence with respect to our approach.”).

Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 4 of 6 We conclude that the trial court did not abuse its discretion when it did not

suspend the habitual offender enhancement.

II. Placement

[8] Next, Marshall argues that the trial court should have placed him in community

corrections rather than in the Department of Correction. Marshall raised this

issue with the trial court, and the trial court stated that it would be

“impractical” to do so given the length of incarceration. Tr. p. 49.

On appeal, Marshall argues that his placement was an abuse of discretion.

However, the location where a sentence is to be served is not subject to review

for abuse of discretion. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008)

(citing Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007)). Rather, placement is

reviewed under Indiana Appellate Rule 7(B). Id. “Nonetheless, we note that it

will be quite difficult for a defendant to prevail on a claim that the placement of

his sentence is inappropriate.” Id. “This is because 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.” Id. at

268. “A defendant challenging the placement of a sentence must convince us

that the given placement is itself inappropriate.” Id. “As a practical matter,

trial courts know the feasibility of alternative placements in particular counties

or communities.” Id.

[9] Marshall makes no argument that his placement was inappropriate, and he has

waived that issue. Waiver notwithstanding, we cannot say that his placement

Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 5 of 6 was inappropriate. Marshall has four prior theft convictions, and he has failed

to respond to escalating punishments. We acknowledge his physical health

problems and the health problems of his family. However, we simply cannot

say that his placement was inappropriate.

Conclusion [10] The trial court properly did not suspend Marshall’s habitual offender

enhancement. Also, we cannot say that Marshall’s placement in the

Department of Correction rather than community corrections was

inappropriate. We affirm.

[11] Affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 6 of 6