MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Sep 09 2016, 8:08 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 Paula M. Sauer Gregory F. Zoeller Danville, Indiana Attorney General of Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marco Lator Smith, September 9, 2016 Appellant-Defendant, Court of Appeals Case No. 32A05-1512-CR-2287 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Mark A. Smith, Judge Trial Court Cause No. 32D04-1412-F6-363
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 1 of 13 [1] Marco Lator Smith (“Smith”) pleaded guilty to resisting law enforcement1 as a
Level 6 felony and to theft2 as a Level 6 felony and to being a habitual offender.3
The trial court sentenced him to eight years fully executed in the Department of
Correction. Smith appeals, arguing that he was improperly sentenced, and
raises the following restated issues for our review:
I. Whether the trial court abused its discretion when it found no mitigating factors;
II. Whether Smith’s sentence is inappropriate in light of the nature of the offense and the character of the offender; and
III. Whether Smith’s sentence violated the proportionality clause of the Indiana Constitution.
[2] We affirm.
Facts and Procedural History [3] On December 9, 2014, detectives from Boone County, who were investigating
Smith in connection with burglaries that occurred in Boone County, observed
Smith and another man breaking into three vehicles in the parking lot of
Metropolis Mall in Hendricks County. The detectives alerted Plainfield Police
officers to the thefts, and K-9 Deputy Schaeffer (“Deputy Schaeffer”) of the
1 See Ind. Code § 35-44.1-3-1(a)(3), (b)(1)(A). 2 See Ind. Code § 35-43-4-2(a)(1)(A). 3 See Ind. Code § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 2 of 13 Hendricks County Sheriff’s Department responded. Smith and the other man
fled the parking lot in a white van, and Deputy Schaeffer followed the van and
attempted to initiate a traffic stop. Smith accelerated and then pulled into the
parking lot of a Best Buy, where he stopped the van, and both men tried to
escape on foot. Deputy Schaeffer gave commands for the men to stop, and
when they did not do so, the deputy deployed his K-9 partner, who was able to
apprehend Smith. The other man was arrested inside a nearby store. A search
of the van yielded three stolen laptops, a computer bag, Bose headphones,
medications, a passport, and a backpack from The North Face. The stolen
property was returned to the owners.
[4] The State originally charged Smith with resisting law enforcement as a Level 6
felony, driving while suspended as a Class A misdemeanor, criminal mischief
as a Class B misdemeanor, theft as a Level 6 felony, unauthorized entry of a
motor vehicle as a Class B misdemeanor, and a learner’s permit violation, an
infraction. The State later charged Smith with two additional counts of theft as
Level 6 felonies and one count of theft as a Class A misdemeanor and alleged
Smith to be a habitual offender. The State also later moved to dismiss several
of the counts, consolidated two counts, and renumbered the remaining five
counts.
[5] On October 26, 2015, on the morning of the scheduled jury trial, Smith agreed
to plead guilty. Smith then pleaded guilty to one count of Level 6 felony
resisting law enforcement and one count of Level 6 felony theft and to being a
habitual offender in exchange for the dismissal of the remaining counts and a
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 3 of 13 sentencing cap of eight-and-a-half years. At the sentencing hearing, the trial
court found Smith’s extensive criminal history and the fact that he was on
parole at the time of the present offenses as aggravating factors and found no
mitigating factors. The trial court then sentenced Smith to two-and-a-half years
for the resisting law enforcement conviction enhance by five-and-a-half years
for Smith’s habitual offender status. It also sentenced Smith to two-and-a-half
years on his theft conviction, which was ordered to be served concurrent with
the sentence for resisting law enforcement, for an aggregate sentence of eight
years executed. Smith now appeals.
Discussion and Decision
I. Abuse of Discretion [6] Sentencing decisions are within the discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). “An abuse of
discretion occurs if the decision is ‘clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538,
544 (Ind. 2006)). A trial court may abuse its discretion (1) by failing to issue a
sentencing statement or (2) by issuing a sentencing statement that bases a
sentence on reasons that are not clearly supported by the record; omits reasons
both advanced for consideration and clearly supported by the record; or
includes reasons that are improper as a matter of law. Id. at 490-91.
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 4 of 13 [7] Smith argues that the trial court abused its discretion when it sentenced him
because it failed to identify two mitigating circumstances that he claims were
clearly supported by the record. He specifically contends that the trial court
failed to find his guilty plea and his history of mental illness to be mitigating
factors. Smith asserts that his guilty plea saved the State “the considerable
effort and expense of trying the case to a jury” and should have been considered
as a mitigating circumstance in sentencing. Appellant’s Br. at 7. He further
claims that his history of paranoid schizophrenia and bipolar disorder
“presumably impacted his overall functioning” and should have been factored
into his sentence. Id. at 8.
[8] The finding of mitigating factors is not mandatory and rests within the
discretion of the trial court. Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct. App.
2009). The trial court is not obligated to accept the defendant’s arguments as to
what constitutes a mitigating factor and not required to give the same weight to
proffered mitigating factors as the defendant does. Id. (citing Gross v. State, 769
N.E.2d 1136, 1140 (Ind. 2002)). Additionally, the trial court is not obligated to
explain why it did not find a factor to be significantly mitigating. Id.
“However, the trial court may ‘not ignore facts in the record that would
mitigate an offense, and a failure to find mitigating circumstances that are
clearly supported by the record may imply that the trial court failed to properly
consider them.’” Id. (quoting Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001)).
An allegation that the trial court failed to identify or find a mitigating factor
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 5 of 13 requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Id.
[9] Here, when sentencing Smith, the trial court found two aggravating factors and
no mitigating factors. The trial court then sentenced him to an aggregate eight
years executed. Smith does not challenge the two aggravating factors found by
the trial court – his prior criminal history and that he was on parole at the time
of the present offenses. He merely challenges the trial court’s failure to find two
mitigating factors he claims were clearly supported by the record. However,
during sentencing Smith did not present or argue any mitigating factors to the
trial court, and in fact, his attorney stated his argument was not “an aggravator
mi[t]igator argument” because Smith “doesn’t have any of that in his favor.”
Tr. at 44. “‘If the defendant does not advance a factor to be mitigating at
sentencing, this Court will presume that the factor is not significant and the
defendant is precluded from advancing it as a mitigating circumstance for the
first time on appeal.’” Henley v. State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting
Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000)). Thus, because Smith did
not advance any mitigators at sentencing, he is precluded from raising them for
the first time on appeal. We will, however, still determine whether the trial
court abused its discretion.
[10] “Even when a defendant does not specifically argue that his guilty plea should
be considered in mitigation, the defendant may subsequently argue on appeal
that the trial court abused its discretion in failing to find the plea as a mitigating
factor.” Caraway v. State, 959 N.E.2d 847, 853 (Ind. Ct. App. 2011), trans.
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 6 of 13 denied. A guilty plea is not always a significant mitigating circumstance. Id. A
guilty plea’s significance is reduced if it is made on the eve of trial, if the
circumstances indicate the defendant is not taking responsibility for his actions,
or if substantial admissible evidence exists against the defendant. Id. Also, the
plea may not be significant when the defendant receives a substantial benefit in
return for the plea. Id.
[11] In the present case, Smith’s guilty plea occurred the morning that his jury trial
was to begin. The jury venire had already been called and was being shown an
orientation video, the parties had argued their motions in limine, and the
preliminary jury instructions had been determined when Smith decided to plead
guilty. Therefore, the State had already prepared for trial, and the trial was to
begin within a very short period of time; the guilty plea did not spare the State
from its burden of preparing for trial. Further, Smith received a substantial
benefit in pleading guilty. As a result of his plea, another felony theft count and
a misdemeanor count of unauthorized entry into a motor vehicle were
dismissed. His sentence was also capped at eight-and-a-half years although he
could have faced a possible maximum eleven-year sentence.4 Because the
timing of Smith’s guilty plea did not lessen the State’s burden of preparing for
trial and because he received a substantial benefit from pleading guilty, we
4 Smith could have faced a possible eleven-year sentence if his sentences for the two Level 6 felony convictions were ordered to be served consecutively (two-and-a-half years plus two-and-a-half years equals five years) and if he was give the full six-year enhancement for his habitual offender adjudication.
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 7 of 13 conclude that the trial court did not abuse its discretion in not finding it to be a
mitigating factor.
[12] Regarding Smith’s claim that his mental illness should have been found to be a
mitigating circumstance, he did not present any evidence that he committed his
offenses as a result of his mental illness. The trial court must consider several
factors in determining what, if any, mitigating weight to give to any evidence of
a defendant’s mental illness, which include: (1) the extent of the defendant’s
inability to control his or her behavior due to the disorder or impairment; (2)
overall limitations on functioning; (3) the duration of the mental illness; and (4)
the extent of any nexus between the disorder or impairment and the
commission of the crime. Krempetz v. State, 872 N.E.2d 605, 615 (Ind. 2007).
Because Smith did not present any evidence concerning his mental illness, the
trial court could not have applied these factors and, therefore, did not abuse its
discretion in not finding Smith’s mental illness as a mitigating factor.
II. Inappropriate Sentence [13] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and
the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). 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. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 8 of 13 that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[14] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224.
[15] Smith argues that his eight-year sentence is inappropriate in light of the nature
of the offense and the character of the offender. He specifically contends that
there was nothing particularly egregious about the nature of his offenses that
would make it different or worse than other offenses of the same kind and,
therefore, no justification for an enhanced sentence. Smith further claims that,
although he had a lengthy criminal history, his character, including his history
of mental illness and acceptance of responsibility by pleading guilty, does not
place him among the worst offenders, and his sentence is inappropriate.
[16] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Johnson v. State, 986
N.E.2d 852, 856 (Ind. Ct. App. 2013) (citing Anglemyer, 868 N.E.2d at 494).
Here, Smith pleaded guilty to one count of Level 6 felony resisting law
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 9 of 13 enforcement and one count of Level 6 felony theft. A person who commits a
Level 6 felony shall be imprisoned for a fixed term of between six months and
two and one-half years, with the advisory sentence being one year. Ind. Code §
35-50-2-7(b). Smith also admitted to being a habitual offender. When a person
is found to be a habitual offender, the trial court shall sentence the person to an
additional term that is between two years and six years for a person convicted
of a Level 6 felony. Ind. Code § 35-50-2-8(i)(2). The trial court sentenced
Smith to two and a half years for each of his Level 6 felony convictions with the
sentences to run concurrently; it enhanced the resisting law enforcement
sentence by five and a half years because of the habitual offender adjudication,
resulting in an aggregate sentence of eight years.
[17] As to the nature of the offenses, Smith and another man were observed
breaking into three cars in a shopping center parking lot and stealing items from
the cars. When the police attempted to stop them, Smith drove into a nearby
parking lot to evade the police, and when he did stop the van, he ran from the
police on foot before being apprehended. The “revision of a sentence under
Indiana Appellate Rule 7(B) requires the appellant to demonstrate that his
sentence is inappropriate in light of both the nature of his offenses and his
character.” Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing
Ind. Appellate Rule 7(B)).
[18] The evidence relevant to Smith’s character shows that he has a lengthy and
extensive criminal history, which includes eleven felony convictions and six
misdemeanor convictions. His first conviction, for grand theft auto, occurred in
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 10 of 13 1982 in California, and in the intervening years, he has been convicted of felony
transporting or selling narcotics, felony grand theft from a person, Class C
misdemeanor operating a vehicle with no proof of insurance, Class B
misdemeanor disorderly conduct, Class D felony residential entry, Class A
misdemeanor battery, Class A misdemeanor criminal mischief, Class B felony
dealing in cocaine, six counts of Class D felony theft or receiving stolen
property, a habitual offender adjudication, four counts of Class A misdemeanor
resisting law enforcement, and Class C felony forgery. At the time he
committed the present offenses, Smith was on parole and had a pending charge
for Level 6 felony theft. Additionally, the evidence shows that he has been
sentenced to probation, community corrections, jail, and the Department of
Correction over the length of his criminal history, and none of these has
deterred him from committing further offenses. We conclude that Smith’s
eight-year executed sentence is not inappropriate in light of the nature of the
offense and the character of the offender.
III. Proportionality Clause [19] The proportionality requirement of Article 1, Section 16 of the Indiana
Constitution provides, “All penalties shall be proportioned to the nature of the
offense.” Hazelwood v. State, 3 N.E.3d 39, 42 (Ind. Ct. App. 2014). The nature
and extent of penal sanctions is primarily a legislative consideration, and our
review of these sanctions is highly restrained and very deferential. Newkirk v.
State, 898 N.E.2d 473, 477 (Ind. Ct. App. 2008), trans. denied. We will not
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 11 of 13 disturb the General Assembly’s determination of the appropriate penalty absent
a showing of clear constitutional infirmity. Id.
[20] A criminal penalty violates the proportionality clause “‘only when a criminal
penalty is not graduated and proportioned to the nature of the offense.’” Knapp
v. State, 9 N.E.3d 1274, 1289 (Ind. 2014) (quoting Phelps v. State, 969 N.E.2d
1009, 1021 (Ind. Ct. App. 2012), trans. denied), cert. denied, 135 S. Ct. 978 (2015).
Thus, a legislatively determined penalty will not be set aside merely because it
seems too severe. Id. at 1290. Our Supreme Court has held that the
proportionality analysis of a habitual offender penalty has two components. Id.
First, a reviewing court should make an inquiry into the nature and gravity of
the present felony. Id. Second, a reviewing court should consider the nature of
the predicate felonies upon which the habitual offender sentence is based. Id.
[21] Smith argues that the enhancement of his sentence under the habitual offender
statute was unconstitutional under Article 1, Section 16. He asserts that the
five-and-a-half-year enhancement was disproportionate to the “modest nature
of the current offense.” Appellant’s Br. at 17. Smith contends that the advisory
for the underlying offenses, both Level 6 felonies, was only one year, and his
eight-year total sentence was an eight-fold increase to this advisory sentence,
which was unconstitutionally disproportionate to the nature of the offenses.
[22] Looking at the nature and gravity of the present felonies in the instant case, the
offenses were not that serious in nature and gravity, consisting of the theft of
items by breaking into parked cars and resisting law enforcement by pulling into
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 12 of 13 a parking lot to evade the police and then running away on foot. However, the
nature of the predicate offenses upon which the habitual offender sentence was
based was much more significant. These offenses consisted of numerous thefts,
dealing in a narcotic drug, and forgery. Further, Smith’s pre-sentence
investigation report stated that he had eleven felony convictions and six
misdemeanor convictions. The number of prior offenses and the similarity of
Smith’s prior offenses to the present conviction show that the enhancement of
his sentence was not disproportionate to the nature of the offense.
[23] To support his argument, Smith discusses Best v. State, 566 N.E.2d 1027 (Ind.
1991). In that case, the defendant was convicted of operating a vehicle while
intoxicated with a prior conviction as a Class D felony and was given the
presumptive sentence of two years, which was enhanced by twenty years under
the habitual offender statute. Id. at 1031. Our Supreme Court found that a ten-
fold enhancement of the defendant’s operating a vehicle while intoxicated
sentence was disproportionate under the Indiana Constitution. Id. at 1032. In
the present case, the trial court enhanced Smith’s two-and-a-half-year sentence
for Level 6 felony theft by five-and-a-half years, which is far less than the ten-
fold enhancement found to be constitutionally disproportionate in Best. Smith’s
sentence did not violate Article 1, Section 16 of the Indiana Constitution.
[24] Affirmed.
[25] Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A05-1512-CR-2287 | September 9, 2016 Page 13 of 13