Trevon T. Marshall v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of May 17 2012, 9:19 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ZACHARY A. WITTE GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TREVON T. MARSHALL, )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-1110-CR-522
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1103-FC-79
May 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Trevon Marshall appeals his sentence following his conviction for carrying a
handgun without a license, as a Class C felony, pursuant to a guilty plea. Marshall
presents a single issue for our review, namely, whether his sentence is inappropriate in
light of the nature of the offense and his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
On March 17, 2011, Marshall, while standing approximately 400 feet away from a
school, possessed two loaded handguns without a license. The State charged him with
carrying a handgun without a license, as a Class C felony, and Marshall pleaded guilty as
charged. Marshall’s plea agreement left sentencing open to the trial court’s discretion.
At sentencing, several of Marshall’s family members testified to Marshall’s good
character. At the conclusion of the hearing, the trial court identified a single aggravator,
namely, the nature and circumstances of the crime (possession of two loaded weapons).
And the court identified two mitigators, namely: Marshall’s guilty plea and acceptance
of responsibility, and his lack of a criminal history. The trial court imposed the minimum
sentence of two years, with one year suspended. This appeal ensued.
DISCUSSION AND DECISION
Marshall contends that his sentence is inappropriate in light of the nature of the
offense and his character. Although a trial court may have acted within its lawful
discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana
Constitution “authorize[] independent appellate review and revision of a sentence
imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)
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(alteration original). This appellate authority is implemented through Indiana Appellate
Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant
to demonstrate that his sentence is inappropriate in light of the nature of his offenses and
his character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). We assess the trial court’s recognition or non-recognition of aggravators and
mitigators as an initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a
defendant must persuade the appellate court that his or her sentence has met th[e]
inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).
The Indiana Supreme Court more recently stated that “sentencing is principally a
discretionary function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented. See id. at 1224. 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.
Marshall concedes that the overall length of his sentence is appropriate, given that
it is the minimum sentence for a Class C felony. But Marshall contends that the trial
court should have suspended the entire sentence in light of his character. In particular,
Marshall emphasizes the testimony at sentencing showing that he is “well respected by
his family and friends.” Brief of Appellant at 12. Indeed, the evidence shows that in
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addition to his lack of criminal history, Marshall is enrolled in school and is employed.
But, given the nature of the offense, Marshall’s good character does not persuade us that
his sentence is inappropriate.
In support of his contention that his sentence is inappropriate in light of the nature
of the offense, Marshall asserts that
[c]arrying a handgun without a license is not a minor offense. However, it
is a Class A misdemeanor without the element of possessing a handgun
within 1000 feet of school property which elevates the offense to a Class C
felony. The Court in this matter found the nature and circumstances of the
offense to be an aggravating circumstance. However, the legislature has
already chosen to elevate the offense by characterizing it as a Class C
felony when possessing a handgun near a school without a permit. Thus, in
effect, the Court elevated the offense twice based on the circumstances of
the case by considering it as an aggravating circumstance.
Brief of Appellant at 13.
However, in a handwritten note describing the “aggravators” on the judgment of
conviction form, the trial judge wrote: “nature and circumstances of [the] crime—2
loaded weapons.” Appellant’s App. at 56 (emphasis original). Thus, the relevant
circumstance noted by the trial court was not Marshall’s proximity to the school, but his
possession of two loaded handguns. Moreover, at sentencing, the trial court noted that
the revolver Marshall possessed “had five .357 hollow point cartridges” and “the .32 had
two full metal jackets, one in the chamber.” Transcript at 16. We cannot say that
Marshall’s sentence is inappropriate in light of the nature of the offense.
Affirmed.
RILEY, J., and DARDEN, J., concur.
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