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

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.
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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
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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
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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.”).
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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
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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.
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