                                                                                  FILED
      MEMORANDUM DECISION
                                                                             Jun 07 2018, 7:51 am

      Pursuant to Ind. Appellate Rule 65(D), this                                 CLERK
                                                                              Indiana Supreme Court
      Memorandum Decision shall not be regarded as                               Court of Appeals
                                                                                   and Tax Court
      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
      Derick W. Steele                                          Curtis T. Hill, Jr.
      Kokomo, Indiana                                           Attorney General of Indiana

                                                                Caroline G. Templeton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Timothy Rush,                                            June 7, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               34A02-1712-CR-2892
              v.                                               Appeal from the Howard Superior
                                                               Court.
                                                               The Honorable George A. Hopkins,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               34D04-1708-F5-134




      Rucker, Senior Judge

[1]   Timothy Rush appeals his thirty-month sentence for operating a motor vehicle

      after forfeiture of license for life contending it is inappropriate. We disagree

      and therefore affirm.




      Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018             Page 1 of 7
                                   Facts and Procedural History
[2]   This case arises out of an August 8, 2017 investigation by the Kokomo police

      department into a possible hit-and-run car crash. Officers arrested Rush, and

      the following day the State charged him with Count 1 operating a motor vehicle
                                                                               1
      after forfeiture of license for life, a Level 5 felony; Count 2 possession of a
                                                              2
      controlled substance, a Level 6 felony; Count 3 false informing, a Class B
                            3
      misdemeanor; Count 4 leaving the scene of an accident, a Class B
                            4                                                                                       5
      misdemeanor; and Count 5 unlawful use of body armor, a Level 6 felony.


[3]   At some point, not clear from the record before us, Rush and the State entered

      an agreement by which Rush would plead guilty to Count 1 as a Level 6 felony
                                                                                                    6
      and in exchange the State would dismiss the remaining charges. At the change

      of plea hearing conducted October 12, 2017, the trial court advised Rush,




      1
          Ind. Code § 9-30-10-17 (2015).
      2
          Ind. Code § 35-48-4-7 (2014).
      3
          Ind. Code § 35-44.1-2-3 (2016).
      4
          Ind. Code § 9-26-1-1.1 (2017).
      5
          Ind. Code § 35-47-5-13(b) (2014).
      6
        The parties contend that Rush was charged in Count 1 with operating a motor vehicle as a habitual traffic
      violator, a Level 5 felony. Appellant’s Br. p. 4; Appellee’s Br. p. 4. They then assert that by agreement with
      the State Rush pleaded guilty to operating a motor vehicle after forfeiture for life, a Level 6 felony as a lesser
      included offense of Count 1. Appellant’s Br. p. 4; Appellee’s Br. p. 4. First, the record is clear that Rush was
      charged in Count 1 with operating a motor vehicle after forfeiture of license for life, a Level 5 felony. See
      Appellant’s App. Vol. 2, pp. 12, 17. Thus, Rush pleaded guilty to the exact offense for which he was
      charged, albeit as a purported lesser included Level 6 felony. Because neither party raises the issue in this
      appeal, we express no opinion on how or whether the charge of operating a motor vehicle after forfeiture of
      license for life, as a Level 6 felony, is a lesser offense of either operating as a habitual traffic violator, a Level
      5 felony, or operating after forfeiture for life, a Level 5 felony.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018                       Page 2 of 7
      among other things, of the penalty range for a Level 6 felony offense. As for a

      factual basis for the plea, the parties stipulated to the facts set forth in the

      affidavit of probable cause and its attachments. The trial court took the plea

      under advisement and set the matter for sentencing.


[4]   At the November 17, 2017 sentencing hearing neither side presented evidence.

      Instead, the State asked the trial court to accept the thirty-month in-home

      detention recommended by the probation department. Rush argued for twenty-

      four months of in-home detention followed by six months of supervised

      probation. Noting Rush’s criminal history—which includes “10 felonies and 11

      misdemeanors”—the trial court declared that although “[t]hirty months is not

      beyond reason . . . [i]n-home is not appropriate in this case.” Tr. p. 13. The

      trial court then sentenced Rush to thirty months executed, to be served in the

      Howard County jail. This appeal followed.


                                   Discussion and Decision
[5]   Rush begins his argument by declaring that the trial court erred in sentencing

      him because it did not give proper consideration to his character and the nature

      of the crime. He then invites this Court to review and revise his sentence

      contending it is inappropriate under Indiana Appellate Rule 7(B).


[6]   Though a trial court may have acted within its lawful discretion in determining

      a sentence, article VII, section 4 of the Indiana Constitution “authorizes

      independent appellate review and revision of a sentence imposed by the trial

      court.” Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002). This appellate

      Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018   Page 3 of 7
      authority is implemented through Appellate Rule 7(B) which provides: “The

      Court may 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.”


[7]   Subject to this review and revise authority, sentencing decisions rest within the

      sound discretion of the trial court and are reviewed on appeal only for abuse of

      that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (2007). Contrary to Rush’s apparent assertion, the nature

      of the offense and the character of the offender are not factors the trial court is

      bound to consider when exercising its sentencing discretion; rather, Appellate

      Rule 7(B) “articulates a standard of review designed as guidance for appellate

      courts.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Further, a

      request for sentence revision under Rule 7(B) is not a claim of sentencing error.

      Kimbrough v. State, 979 N.E.2d 625, 630 (Ind. 2012). Instead, it is a request for

      an appellate tribunal to exercise its constitutional authority to revise a lawfully

      entered sentence. Id. With this in mind, we evaluate Rush’s claims.


[8]   The location where a sentence is to be served is an appropriate focus for

      application of our review and revise authority. Biddinger v. State, 868 N.E.2d

      407, 414 (Ind. 2007). However, it is difficult for a defendant to prevail on a

      claim that the placement of his or her sentence is inappropriate. Fonner v. State,

      876 N.E.2d 340, 343 (Ind. Ct. App. 2007). This is so in part because the

      question under Rule 7(B) is not whether another sentence, or another location,

      is more appropriate; rather, the question is whether the sentence imposed is

      Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018   Page 4 of 7
       inappropriate. Id. The defendant bears the burden of persuading the appellate

       court that his or her sentence is inappropriate. Childress, 848 N.E.2d at 1080.


[9]    Placement in a community corrections program is an alternative to serving a

       sentence in the Department of Correction—or here, the county jail—and is

       made at the sole discretion of the trial court. Brown v. State, 947 N.E.2d 486,

       489 (Ind. Ct. App. 2011), trans. denied. A defendant is not entitled to serve his

       or her sentence in a community corrections program; rather, such placement is

       a matter of grace and conditional liberty that is a favor and not a right. Id. In

       similar fashion, “[p]lacement in an in-home detention program is [also] a

       matter of grace and a conditional liberty that is a favor, not a right.” Rodriguez

       v. State, 714 N.E.2d 667, 670 (Ind. Ct. App. 1999), trans. denied.


[10]   Rush contends that his placement in the county jail is inappropriate in light of

       the nature of his offense and his character. As for the nature of his offense,

       Rush offers a few short lines in support: (1) “Rush operated a vehicle while

       suspended”; (2) “[o]nly the worst offense and offenders should be sentenced

       under the maximum enhancement permitted by law”; and (3) “[o]perating a

       vehicle while suspended for life cannot be seen as the worst of the worst Level 6

       felonies.” Appellant’s Br. p. 6. He concludes by asserting “the nature of the

       offense does not rise to the level warranting a maximum sentence.” Id. As for

       his character, Rush concedes that he has “a criminal history that is concerning.”

       Id. at 7. He argues, however, that “the nature of his offenses [is] not such that

       Rush’s character requires the worst treatment.” Id. According to Rush, his



       Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018   Page 5 of 7
       sentence “would be better served on Community Corrections, or through the

       Howard County Work Release program instead of penal incarceration.” Id.


[11]   We first observe that in this appeal Rush does not challenge the length of his

       sentence. Instead, he challenges only the location where the sentence is to be

       served. Thus, his references to “maximum enhancement” and “maximum

       sentence” and “worst treatment” are off the mark and lack merit. Further,

       Rush’s contention that his sentence would be best served in community

       corrections or county work release is merely a claim that such placement is

       more appropriate than that imposed by the trial court. But this is not the test.

       Where a defendant challenges the placement of a sentence, he must convince us

       that the given placement is itself inappropriate. Fonner, 876 N.E.2d at 343.


[12]   Concerning the nature of the offense, the record shows this was not a run-of-

       the-mill operating while suspended case as Rush implies. Instead, the record

       shows that while his driving license was forfeited for life, Rush took

       unauthorized possession of a car, crashed it into a mailbox, and left the scene.

       As for the character of the offender, Rush was age 35 at the time of the instant

       offense. He has a criminal history which, including his juvenile record, spans

       more than twenty years. Most are driving-related convictions, but his record

       also includes drug-related offenses, property crimes, and at least one act of

       physical violence. See Appellant’s App. Vol. 2, pp. 46-55. Significantly, on

       three different occasions Rush was placed on home detention which was later

       either partially or fully revoked for non-compliance. See id. at 47, 49, 50. And



       Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018   Page 6 of 7
       on at least one other occasion Rush’s one-year probation was revoked for

       violation. Id. at 50.


[13]   When we consider the character of the offender, one relevant fact is the

       defendant’s criminal history. Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct.

       App. 2011). The significance of criminal history depends on “the gravity,

       nature, and number of prior offenses in relation to the current offense.” Id.

       Rush’s criminal history is extensive. As the trial court pointed out, it includes

       “10 felonies and 11 misdemeanors.” Tr. p. 13; see also Appellant’s App. Vol. 2,

       pp. 46-51. Further, Rush has had prior failures with home detention and

       probation. In the end, Rush has not convinced this Court that his sentence is

       inappropriate based on his character and the nature of his offense.


                                                Conclusion
[14]   We affirm the judgment of the trial court.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018   Page 7 of 7
