Marcus Stidhum v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 24, 2015
• Docket: 71A03-1412-CR-434
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jul 24 2015, 6:28 am 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 Marielena Duerring Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana

Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marcus Stidhum, July 24, 2015

Appellant-Defendant, Court of Appeals Case No. 71A03-1412-CR-434 v. Appeal from the St. Joseph Superior Court; The Honorable Jane Woodward State of Indiana, Miller, Judge; Appellee-Plaintiff. 71D01-1407-F6-15

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015 Page 1 of 6 [1] Marcus Stidhum appeals his two-year sentence for Class A misdemeanor

resisting law enforcement 1 and Level 6 felony possession of a narcotic drug. 2

As the sentence was not inappropriate, we affirm.

Facts and Procedural History [2] On July 7, 2014, the police were dispatched to a convenience store on a report

of an “unwanted person.” (Confidential Appendix (hereinafter “Conf. App.”) 3

at 41.) An officer stopped Stidhum, who matched the description in the report.

Stidhum identified himself as Michael Ward. The officer told Stidhum he

would be issued a warning for criminal trespass, and while the officer was

retrieving the warning forms, Stidhum ran. The officer caught Stidhum and

found cocaine in his pocket.

[3] The State charged Stidhum with Class B misdemeanor false informing, 4 Class

A misdemeanor resisting law enforcement, and Level 6 felony possession of a

narcotic drug. Stidhum pleaded guilty to resisting law enforcement and

possession of a narcotic drug, and the State dismissed the false informing

charge. The trial court sentenced Stidhum to one year for resisting law

enforcement and two years for possession, to be served concurrently.

1 Ind. Code § 35-44.1-3-1 (2014). 2 Ind. Code § 35-48-4-6 (2014). 3 A confidential appendix contains documents and other information that may be excluded from public access pursuant to Ind. Administrative Rule 9(G) (2015). 4 Ind. Code § 35-44.1-2-3 (2014).

Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015 Page 2 of 6 Discussion and Decision 5 [4] We may revise a sentence if it is inappropriate in light of the nature of the

offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

(Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only

the aggravators and mitigators found by the trial court, but also any other

factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.

App. 2007), trans. denied. The appellant bears the burden of demonstrating his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[5] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Anglemyer v. State, 868

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

sentencing range for a level 6 felony is six months to two and one-half years,

with an advisory sentence of one year. Ind. Code § 35-50-2-7 (2014). A

sentence for a Class A misdemeanor shall not exceed one year. Ind. Code § 35-

50-3-2. Stidhum received a two-year sentence for the felony and one year for

the misdemeanor, and the court ordered them served concurrently.

[6] Regarding the nature of his offense, Stidhum was loitering at a convenience

store. There were warrants for his arrest when he gave a false name to the

5 Stidhum’s sole argument on appeal is that his sentence is inappropriate under Appellate Rule 7(B). Nonetheless, he invites us to review the court’s decision for an abuse of discretion. (See Appellant’s Br. at 3.) We will not. See, e.g., King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant).

Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015 Page 3 of 6 police. He possessed cocaine and fled the scene. There is nothing particularly

egregious about his offense.

[7] When considering the character of the offender, one relevant fact is the

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

App. 2007). The significance of a criminal history in assessing a defendant’s

character varies based on the gravity, nature, and number of prior offenses in

relation to the current offense. Id.

[8] Stidhum’s criminal history includes six felony convictions and two

misdemeanor convictions. Although related mostly to substance abuse, 6 they

also include violent acts. 7 His probation had been revoked for failing to appear

and for “reasons unknown.” (Conf. App. at 28, 30.) Stidhum has not shown

he can abide by the rules of a lesser sentence, and even his counsel was

concerned if Stidhum were not closely supervised, “we’ll be back here on a

probation violation.” (Tr. at 24.) Stidhum also had been arrested for multiple

offenses that were not prosecuted. See Cotto v. State, 829 N.E.2d 520, 526 (Ind.

2005) (lengthy arrest record reveals “defendant has not been deterred even after

having been subject to the police authority of the State”).

6 These include manufacturing or delivery of controlled substances, three convictions of possession of a controlled substance, aggravated driving under the influence with license suspended or revoked, and driving under the influence. 7 These include domestic battery and battery.

Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015 Page 4 of 6 [9] Stidhum requests an alternative placement to the Department of Correction.

This is “an appropriate focus for application of our review.” Biddinger v. State,

868 N.E.2d 407, 414 (Ind. 2007). However, trial courts are in the best position

to know the feasibility and availability of such placements. Fonner v. State, 876

N.E.2d 340, 343 (Ind. Ct. App. 2007). Stidhum was denied entrance to

DuComb Center, 8 because they were not equipped to “dispers[e] medication for

his anger management.” (Tr. at 20.) The trial court was aware of this and

would presumably have known of other facilities and their capabilities. It

declined to place Stidhum elsewhere because the available facility was “not

willing to take [him] because of [his] history of violence.” (Id. at 26.)

[10] We do not decide if “another sentence is more appropriate; rather the question is

whether the sentence imposed is inappropriate.” Fonner, 876 N.E.2d at 344.

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

given placement is itself inappropriate.” Id. This he has not done. See id. (trial

courts are equipped to know the availability and resources regarding placement

in their locales).

[11] While there was nothing extraordinary about Stidhum’s offense, his criminal

history indicates this two-year sentence is not inappropriate in light of his

character. Accordingly, we affirm.

8 DuComb Center is “a community corrections project established in St. Joseph County (Ind.) in 1982[.]” https://www.ncjrs.gov/App/publications/Abstract.aspx?id=153737.

Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015 Page 5 of 6 [12] Affirmed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015 Page 6 of 6