MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 11 2019, 10:09 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kay A. Beehler Curtis T. Hill, Jr.
Terre Haute, Indiana Attorney General of Indiana
Courtney L. Abshire
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jon T. Marshall, December 11, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1683
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D01-1807-F1-2366
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jon Marshall (Marshall), appeals the sentence imposed
by the trial court following his guilty plea to robbery resulting in serious bodily
injury, a Level 2 felony, Ind. Code § 35-42-5-1(a)(1).
[2] We affirm.
ISSUE
[3] Marshall presents one issue on appeal, which we restate as: Whether the trial
court abused its discretion when it identified the mitigating and aggravating
circumstances for sentencing.
FACTS AND PROCEDURAL HISTORY
[4] Curtis Pike (Pike) is an oxygen-dependent, disabled Vietnam veteran who was
seventy-three years old in 2018. At around 1:00 p.m. on July 8, 2018, Pike
answered a knock at the door of his home in Terre Haute, Indiana, and found
his stepson, Marshall, there. Marshall gained access to Pike’s home by
untruthfully telling Pike that Pike’s daughter had been in a car accident. Once
he had gained entry, Marshall demanded money from Pike. Marshall’s
accomplice, Derek Worthington (Worthington), also entered Pike’s home.
Marshall and Worthington pointed semi-automatic handguns at Pike and
repeatedly demanded money.
[5] Pike told Marshall and Worthington that he did not have a large amount of
cash in the home, and they threatened to kill Pike if he was lying. They took
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the two debit cards and $200 in cash Pike had on his person. They then cut the
line to Pike’s oxygen tank, making it difficult for Pike to breathe. Marshall and
Worthington searched Pike’s home for more valuables and found an additional
$1,000 in cash. Upon making this discovery, Worthington told Pike that “you
shouldn’t have lied to us” and struck Pike twice on the back of his head,
knocking him to the ground and causing him to bleed. (Appellant’s App. Vol.
II, p. 6).
[6] Marshall and Worthington picked Pike up from the ground, sat him in a
kitchen chair, and bound his arms, chest, wrists, and ankles to the chair with
tape. Pike was unable to breath and pleaded for oxygen. Marshall and
Worthington provided Pike with some breaths of oxygen from an auxiliary tank
so that he could speak and tell them where more valuables were located in the
home. Attempting to negotiate for his life with his assailants, Pike directed
them to a safe in his bedroom that contained gold jewelry. Marshall and
Worthington told Pike that they would kill him if he did not provide them with
the PIN number to his debit card and again threatened to kill him if the number
he subsequently provided was not correct. Marshall and Worthington took
some jewelry from the safe, threatened to return and kill Pike if there was no
money in his banking account, and left with Pike’s auxiliary oxygen tank.
[7] Pike spent several hours trying to free himself from the tape binding him to the
kitchen chair. After freeing himself, Pike fled to a neighbor’s home. Law
enforcement was alerted around 5:00 p.m., and Pike was transported to the
hospital for treatment. Pike identified Marshall as one of his assailants.
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[8] On July 9, 2018, the State filed an Information, charging Marshall with
attempted murder, a Level 1 felony; robbery resulting in serious bodily injury, a
Level 2 felony; criminal confinement, a Level 3 felony; 1 battery resulting in
serious bodily injury, a Level 5 felony; and pointing a firearm, a Level 6 felony.
Marshall was apprehended and arrested on July 17, 2018, and he identified
Worthington as his accomplice. On June 14, 2019, the trial court held a guilty
plea and sentencing hearing. Marshall pleaded guilty to the Level 2 felony
robbery resulting in serious bodily injury charge pursuant to a plea agreement
with the State which capped his executed sentence at thirty years. The State
also agreed to dismiss the remaining charges pending against Marshall.
[9] Pre-sentencing investigation revealed that Marshall had been charged with
Class D felony theft in 1998 and had judgment entered against him in that case
for Class A misdemeanor theft. In 2008, Marshall had been arrested for four
drug-related offenses in Illinois, including charges of drug conspiracy,
possession of methamphetamine, possession of marijuana, and possession of
precursors. Marshall pleaded guilty to the felony possession of
methamphetamine charge. Judgment was not entered against him in that case,
and he was placed on probation. Marshall had also been convicted of Class A
misdemeanor reckless driving in 2013. Marshall had a history of convictions
for traffic violations as follows: (1997) disregarding a stop sign; (1999) speeding
1
On October 20, 2015, the State filed a notice of enhancement of this offense to a Level 2 felony for use of a
firearm during its commission.
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and failure to provide proof of insurance; (2000) failure to provide proof of
insurance; (2004) failure to provide proof of insurance (three times) and driving
while suspended (three times); and (2013) failure to provide proof of insurance.
Marshall’s driver’s license had been suspended on at least fourteen occasions
since 1997. Marshall reported that he had abused methamphetamine,
marijuana, prescription medication, and cocaine. In letters submitted to the
trial court, Marshall admitted that he was under the influence of
methamphetamine at the time he committed the robbery.
[10] On June 21, 2019, the trial court issued its Order sentencing Marshall. The trial
court found as aggravating circumstances that the harm suffered by Pike was
significant and greater than that necessary to prove the offense; Marshall had a
criminal history “though significantly different than his co-defendant;” Pike
was over the age of sixty-five, being seventy-three years old; and Pike was
physically infirm. The trial court found the nature of the offense to be an
additional aggravating circumstance, in that Marshall’s offense was a “planned,
heinous attack on an elderly, infirm, veteran which left him bloodied, without
oxygen and terrified for hours as he tried to free himself” and because Marshall
had played upon Pike’s trust in order to gain access to Pike’s home.
(Appellant’s App. Vol. II, p. 40).
[11] The trial court found that Marshall’s history of substance abuse was mitigating
but noted that previous court-ordered attempts to address the issue had failed.
The trial court acknowledged Marshall’s expressions of remorse and the fact
that he took responsibility for his actions from the time of his arrest,
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cooperating with law enforcement even though it exposed him to great legal
jeopardy. However, the trial court found that Marshall had received a
significant benefit as a result of his cooperation with law enforcement in the
form of a plea agreement pursuant to which the remaining charges were
dismissed. The trial court rejected Marshall’s proffered mitigating circumstance
that he had a minimal criminal history, finding that Marshall had a history of
criminal and delinquent behavior and that he had not lived a law-abiding life
for a substantial period before the instant offense. The trial court found that an
aggravated sentence was merited and sentenced Marshall to twenty-one years,
with the possibility of a sentence modification after he had executed fifteen
years.
[12] Marshall now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[13] Marshall’s sole challenge to his sentence is that the trial court “abused its
discretion in imposing an aggravated sentence based upon factors not supported
by the record.” (Appellant’s Br. p. 6). So long as a sentence imposed by a trial
court is within the statutory range for the offense, it is subject to review only 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 (Ind. 2007). An abuse of the trial court’s
sentencing discretion occurs if its 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. A trial court abuses its discretion
when it fails to enter a sentencing statement at all, its stated reasons for
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imposing sentence are not supported by the record, its sentencing statement
omits reasons that are clearly supported by the record and advanced for
consideration, or its reasons for imposing sentence are improper as a matter of
law. Id. at 490-91.
[14] Here, Marshall pleaded guilty to Level 2 felony robbery resulting in serious
bodily injury. A Level 2 felony carries a sentencing range between ten and
thirty years, with an advisory sentence of seventeen and one-half years. See I.C.
§ 35-50-2-4.5. The trial court imposed a slightly enhanced, twenty-one- year
sentence, and, therefore, the trial court’s sentence was within the parameters of
Marshall’s plea agreement and the sentencing range for the offense.
I. Mitigating Circumstances
[15] Marshall’s first argument pertains to the mitigating circumstance of his
acceptance of responsibility. Marshall contends that the “record supports the
conclusion that [] Marshall took absolute responsibility for his offense and
should have been considered an appropriate mitigating factor.” (Appellant’s
Br. p. 7). The trial court agreed and identified Marshall’s remorse, acceptance
of responsibility, and cooperation with law enforcement as mitigating factors.
The trial court also found that Marshall had obtained a great benefit in the
dismissal of the remaining four felony charges in exchange for his plea. Thus,
the trial court apparently concluded that the significance of Marshall’s
acceptance of responsibility was lessened by the benefit he had obtained from it.
This was within the trial court’s sentencing discretion. See Anglemyer, 875
N.E.2d at 221 (“[A] guilty plea may not be significantly mitigating when . . . the
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defendant receives a substantial benefit in return for the plea.”). The gravamen
of Marshall’s argument on appeal is that the trial court should have accorded
his acceptance of responsibility more mitigating weight. This argument is not
persuasive, as we no longer review the weight accorded to mitigating and
aggravating circumstances by a trial court. Anglemyer, 868 N.E.2d at 491.
[16] Marshall also argues that the trial court abused its discretion when it rejected
his criminal record as a mitigating circumstance, finding it instead to be an
aggravating one. As more fully explained below, we conclude that the trial
court’s finding that Marshall’s criminal record was an aggravating circumstance
was proper. Therefore, we reject Marshall’s contention that his criminal record
was actually a mitigating circumstance.
II. Aggravating Circumstances
[17] Marshall contends that the trial court abused its discretion when it identified his
criminal record as an aggravating circumstance. More specifically, Marshall
argues that the trial court’s finding that he “clearly has a history of criminal and
delinquent behavior” was unsupported by the record and that it was
“undisputed that [Marshall] has no juvenile criminal history.” (Appellant’s Br.
p. 8). While we agree that the record would not support a finding that Marshall
had a juvenile criminal history, the trial court did not find that Marshall had a
juvenile criminal history. Rather, it found that Marshall had a history of
“criminal and delinquent behavior.” (Appellant’s App. Vol. II, p. 41). This
finding was supported by evidence that Marshall had misdemeanor convictions
in 2008 for theft and in 2013 for reckless driving. Marshall had also been
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arrested in 2010 on four felony drug charges in Illinois and pleaded guilty to
possession of methamphetamine. In addition, Marshall had numerous
convictions for traffic violations, and his driver’s license had been suspended on
many occasions starting in 1997. In light of the evidence of Marshall’s history
of convictions, arrests, and his driving record, we cannot say that the trial
court’s finding is unsupported by the record.
[18] Inasmuch as Marshall argues that his criminal record was not significant for
sentencing, we observe that the significance of a defendant’s criminal history
varies based on the gravity, nature, and number of prior offenses as they relate
to the current offense. Caraway v. State, 959 N.E.2d 847, 851 (Ind. Ct. App.
2011), trans. denied. Here, Marshall’s theft offense was remote in time, but, like
the instant robbery, it was also a property offense, which provides it with some
relevance for sentencing. In addition, Marshall admitted that he was under the
influence of methamphetamine at the time of the robbery, which rendered his
earlier methamphetamine conviction at least somewhat significant for
sentencing. See Caraway, 959 N.E.2d at 851 (concluding that the trial court did
not abuse its discretion in finding Caraway’s history of alcohol-related offenses
to be significant for sentencing for murder where he was drunk at the time of
the offense). Marshall’s pattern of traffic violations and license suspensions did
not reflect well on his character, which also made his driving record relevant for
sentencing. Although the trial court found that Marshall’s criminal history was
an aggravating circumstance, it also found that Marshall’s criminal history was
“significantly different than [Worthington’s].” (Appellant’s App. Vol. II, p. 40).
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Thus, although the trial court found this factor to be an aggravating
circumstance, it does not appear that the trial court accorded Marshall’s
criminal history a great deal of significance for sentencing.
[19] In a related argument, Marshall challenges the trial court’s finding that there
was no evidence that he had led a “‘law abiding life for a substantial period’”
before the instant offense. (Appellant’s App. Vol. II, p. 41). Marshall argues
that this finding was not supported by the record because the evidence of his
driving record, admitted at the sentencing hearing as the State’s Exhibit 1, was
inadmissible hearsay and contained duplicate dates. However, Marshall did
not object to the admission of Exhibit 1 at the hearing and raises this argument
for the first time on appeal; therefore, his argument is waived. See Washington v.
State, 808 N.E.2d 617, 625 (Ind. 2004) (holding that, as a general rule, a party
waives an argument or issue presented for the first time on appeal).
[20] We observe that even if we were to conclude that the trial court abused its
discretion when it identified Marshall’s criminal record as an aggravating
circumstance, we would not reverse the trial court’s sentencing decision. When
a trial court abuses its discretion by considering an improper aggravating
circumstance, we remand for sentencing only “if we cannot say with confidence
that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Anglemyer, 868 N.E.2d at
491. The trial court found that the harm to Pike, which was greater than that
necessary to prove the offense, Pike’s age and physical infirmity, and the
heinous nature of the offense were additional aggravating circumstances.
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Marshall does not challenge the validity of these additional aggravating
circumstances on appeal, any one of which would have justified the imposition
of an aggravated sentence. See Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct.
App. 2013) (“It is well-settled that a single aggravating factor is sufficient to
warrant an enhanced sentence.”). In light of these additional unchallenged
aggravating circumstances, we are confident that the trial court would have
imposed the same sentence irrespective of its consideration of Marshall’s
criminal record.
CONCLUSION
[21] Based on the foregoing, we conclude that the trial court properly identified the
mitigating and aggravating circumstances and, therefore, the trial court did not
abuse its discretion when it imposed an enhanced sentence.
[22] Affirmed.
[23] Baker, J. and Brown, J. concur
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