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:

ANGELA WARNER SIMS                              GREGORY F. ZOELLER
Hulse, Lacey, Hardacre, Austin,                 Attorney General of Indiana
 Sims & Childers, P.C.
Anderson, Indiana
                                                AARON J. SPOLARICH
                                                Deputy Attorney General

                                                                              FILED
                                                Indianapolis, Indiana

                                                                         Mar 14 2012, 9:33 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                  CLERK
                                                                               of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




NOAH THOM,                                      )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 48A05-1107-CR-348
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MADISON SUPERIOR COURT
                          The Honorable David A. Happe, Judge
                             Cause No. 48D04-1101-FD-85



                                      March 14, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
        Appellant-Defendant Noah Thom was convicted, pursuant to a guilty plea, of

Class D felony Strangulation1 and Class A misdemeanor Domestic Battery,2 for which he

received an aggregate sentence of twenty-four months in the Department of Correction

(“DOC”). Upon appeal, Thom challenges the appropriateness of his placement at the

DOC. We affirm.

                            FACTS AND PROCEDURAL HISTORY

        As of November 14, 2010, Thom and Cherce Vaughn had lived together for

approximately one and one-half years.3 That night the couple got into an argument which

continued the next day. On November 15, 2010, Thom became very angry and choked

Vaughn by placing his hands around her throat. In addition, Thom struck Vaughn at least

ten times in the head and face and threw her to the floor at least five times. Vaughn hid

in a closet to escape Thom. When he left, she contacted authorities.

        Authorities who arrived to investigate discovered that Vaughn had a four- to five-

inch cut on her forehead, a swollen face, and red finger marks around her neck. Vaughn

complained of pain to her head, neck, and stomach.

        On January 20, 2011, the State charged Thom with Class A misdemeanor

domestic battery (Count I) and Class D felony strangulation (Count II). On May 16,

2011, Thom entered into a plea agreement with the State in which he agreed to plead

guilty to both counts. As an additional term of the plea agreement, Thom and the State

        1
            Ind. Code § 35-42-2-9(b) (2010).
        2
            Ind. Code § 35-42-2-1.3(a) (2010).
        3
         These facts come from the probable cause affidavit, which both parties rely upon for their facts.
The transcript of the plea hearing was not included in the record on appeal.


                                                    2
agreed that his sentences would be twelve months for Count I and twenty-four months for

Count II. The parties further agreed to leave placement to the discretion of the trial court.

       At the June 13, 2011 sentencing hearing, Thom testified that he had a painful

nerve condition which affected his motor skills, including his ability to walk, and which

required that he take medication and attend doctor and physical therapy appointments.

Thom additionally testified that he wished to attend school. Thom requested that the trial

court assign him to a facility better able than DOC to address his needs. For its part, the

State recommended placement at DOC.

       In ordering Thom‟s placement at DOC, the trial court observed that Thom had an

extensive criminal history, that his previous placement in probation or with community

corrections had not been successful, and that the victim in the instant case had sustained

significant injury. This appeal follows.

                            DISCUSSION AND DECISION

       Upon appeal, Thom claims that his placement at DOC is inappropriate in light of

the nature of his offenses and his character. Article VII, Sections 4 and 6 of the Indiana

Constitution “„authorize[] independent appellate review and revision of a sentence

imposed by the trial court.‟” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)

(quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (emphasis and internal

quotations omitted)). Such appellate authority is implemented through Indiana Appellate

Rule 7(B), which provides that 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.” We

                                              3
exercise deference to a trial court‟s sentencing decision, both because Rule 7(B) requires

that we give “due consideration” to that decision and because we recognize the unique

perspective a trial court has when making sentencing decisions. Stewart v. State, 866

N.E.2d 858, 866 (Ind. Ct. App. 2007). It is the defendant‟s burden to demonstrate that

his sentence is inappropriate. Childress, 848 N.E.2d at 1080.

       The location where a sentence is to be served is an appropriate focus for our

review and revise authority.    Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007).

Nevertheless, it is quite difficult for a defendant to prevail on a claim that his sentence

placement is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007).

       As a practical matter, trial courts know the feasibility of alternative
       placements in particular counties or communities. For example, a trial
       court is aware of the availability, costs, and entrance requirements of
       community corrections placements in a specific locale. Additionally, 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. A defendant challenging the placement of a sentence must
       convince us that the given placement is itself inappropriate.

Id. at 343-44.

       Not surprisingly, we are unpersuaded that Thom‟s placement with the DOC is

inappropriate. As the trial court observed, Thom has a criminal history which includes at

least two prior felony convictions, specifically Class D felony possession of a controlled

substance and Class D felony theft, and multiple misdemeanor convictions, including one

for domestic battery. Thom has not been successful in alternative placement programs,

having violated his various probationary terms on multiple occasions. Furthermore, the

nature of the instant offenses involved Thom committing potentially lethal acts against


                                            4
Vaughn, leaving her with significant injuries. While Thom has clear medical and likely

substance abuse problems, the trial court was within its discretion to discount the

importance of addressing these needs through less restrictive placement. Indeed, Thom

has never shown that DOC is unable to address his needs. Placement with DOC is not

inappropriate.

      The judgment of the trial court is affirmed.

KIRSCH, J., and BARNES, J., concur.




                                            5
