MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                           Jun 23 2020, 10:24 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Markeon L. Devine,                                       June 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-234
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1906-F3-24



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-234| June 23, 2020                     Page 1 of 5
                                          Case Summary
[1]   In January of 2020, Markeon Devine was sentenced to fourteen years of

      incarceration with five years suspended to probation after he pled guilty to

      Level 3 felony robbery, Level 6 felony resisting law enforcement, and Level 6

      felony auto theft. Devine contends that his sentence is inappropriate. We

      affirm.



                            Facts and Procedural History
[2]   In the early morning hours of March 5, 2019, after consuming two Xanax pills

      and smoking marijuana, Devine stole his friend’s vehicle and drove to a West

      Lafayette Circle K gas station. Devine entered the Circle K, pointed a handgun

      at the cashier, and demanded money. After the cashier refused, Devine cocked

      the handgun and again demanded money. The cashier handed Devine $208.00,

      and Devine left the store.

[3]   Shortly thereafter, police officers arrived at the Circle K, and after talking to the

      cashier, the officers spotted Devine driving away from the area. The officers

      initiated a traffic stop, with which Devine initially complied. After Devine’s

      vehicle came to a stop, the officers exited their vehicle and ordered Devine to

      exit his vehicle as well. Devine, however, began quickly driving towards the

      officers and then through a residential yard. As the officers pursued Devine, his

      vehicle struck a utility pole, causing severe damage to the vehicle. Following

      the collision, Devine continued driving down Lindberg Road until he stopped


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-234| June 23, 2020   Page 2 of 5
      the vehicle and fled on foot. Devine was eventually driven by his roommate to a

      family member’s residence in Chicago.


[4]   On June 21, 2019, the State charged Devine with Level 3 felony robbery, Level

      6 felony resisting law enforcement, Level 6 felony auto theft, and Class A

      misdemeanor theft. On December 26, 2019, pursuant to a plea agreement,

      Devine agreed to plead guilty to Level 3 felony robbery, Level 6 felony resisting

      law enforcement, and Level 6 felony auto theft, and the State agreed to dismiss

      the remaining theft charge. Devine and the State also agreed to a sentencing

      range between five and nine years for the executed portion of his sentence. On

      January 17, 2020, the trial court sentenced Devine to fourteen years with five

      years suspended to probation.



                                 Discussion and Decision
[5]   Devine contends that his fourteen-year sentence is inappropriate. We may

      revise a sentence 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.” Ind. Appellate Rule 7(B). “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) (internal citations omitted). “Such deference should prevail unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant’s character (such as substantial virtuous traits or persistent examples

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-234| June 23, 2020   Page 3 of 5
      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The

      defendant bears the burden of proving that his sentence is inappropriate in light

      of both the nature of his offense and his character. Gil v. State, 988 N.E.2d 1231,

      1237 (Ind. Ct. App. 2013). A Level 3 felony conviction has a sentencing range

      between three and sixteen years, with the advisory sentence being nine years.

      Ind. Code § 35-50-2-5. A Level 6 felony conviction has a sentencing range

      between six months and two and one-half years, with the advisory sentence

      being one year. Ind. Code § 35-50-2-7. Where, as here, “the most serious crime

      for which the defendant is sentence is a Level 3 felony, the total of the

      consecutive terms of imprisonment may not exceed twenty (20) years.” Ind.

      Code § 35-50-1-2(d)(4).

[6]   The nature of Devine’s offenses cannot be portrayed in a positive light

      warranting a reduction in his sentence. After using controlled substances,

      Devine stole a vehicle, drove to a gas station, and pointed a handgun at and

      demanded money from the cashier. Following the robbery, Devine’s vehicle

      was stopped by police as he left the Circle K; however, a few moments after

      stopping, Devine fled the scene, initially driving his vehicle quickly towards the

      police officers. Devine eventually crashed the vehicle and fled to Illinois.

      Devine’s behavior not only jeopardized his own life but also that of the cashier,

      the officers, and other persons traveling the same roads that morning.


[7]   Devine’s character also does not warrant a reduction in his sentence. In 2017,

      Devine was charged with Class B misdemeanor marijuana possession, a charge

      that was ultimately diverted. In September of 2018, Devine was charged with

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-234| June 23, 2020   Page 4 of 5
      Level 6 felony battery resulting in moderate bodily injury, Class A

      misdemeanor battery resulting in bodily injury, Class B misdemeanor battery by

      bodily waste, and Class C misdemeanor illegal consumption of an alcoholic

      beverage in Delaware County, which remained pending following the

      disposition of this matter. In December of 2018, Devine was charged with Level

      6 felony residential entry in Tippecanoe County, ultimately pleading guilty to

      Class A misdemeanor residential entry. Moreover, Devine was out on bond

      when he committed the offenses in this matter. Not only do we find it troubling

      that the seriousness of Devine’s offenses continues to escalate but also that all of

      his offenses involve harming or endangering other individuals. Devine appears

      unwilling to conform his behavior to societal norms.


[8]   Devine specifically cites his acceptance of responsibility by pleading guilty,

      substance abuse issues, remorse, and young age as factors that warrant a

      reduction in his sentence. The trial court considered these factors and

      determined that they were outweighed by the aggravating factors, which was

      well within its discretion. See Singer v. State, 674 N.E.2d 11, 17–18 (Ind. Ct.

      App. 1996) (“It is well settled, however, that a sentencing court is not required

      to find the existence of mitigating circumstances nor to give mitigating

      circumstances the same weight as the defendant gives them.”). Devine has

      failed to establish that his sentence is inappropriate.


[9]   The judgment of the trial court is affirmed.


      Baker, J., and Pyle, J., concur.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-234| June 23, 2020   Page 5 of 5
