Eric E. Markwith v. State of Indiana (mem. dec.) ( 2020 )

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
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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.
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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
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. . . 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
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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.
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