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.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019                 Page 1 of 11
                               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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 2 of 11
      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.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 3 of 11
[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.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019                   Page 4 of 11
       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,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 5 of 11
       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
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 6 of 11
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 7 of 11
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 8 of 11
       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).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 9 of 11
       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.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 10 of 11
       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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1683 | December 11, 2019   Page 11 of 11
