MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                         Jul 24 2015, 6:28 am
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
Marielena Duerring                                        Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana

                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Marcus Stidhum,                                           July 24, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A03-1412-CR-434
        v.                                                Appeal from the St. Joseph Superior
                                                          Court;
                                                          The Honorable Jane Woodward
State of Indiana,                                         Miller, Judge;
Appellee-Plaintiff.                                       71D01-1407-F6-15




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015         Page 1 of 6
[1]   Marcus Stidhum appeals his two-year sentence for Class A misdemeanor

      resisting law enforcement 1 and Level 6 felony possession of a narcotic drug. 2

      As the sentence was not inappropriate, we affirm.


                                     Facts and Procedural History
[2]   On July 7, 2014, the police were dispatched to a convenience store on a report

      of an “unwanted person.” (Confidential Appendix (hereinafter “Conf. App.”) 3

      at 41.) An officer stopped Stidhum, who matched the description in the report.

      Stidhum identified himself as Michael Ward. The officer told Stidhum he

      would be issued a warning for criminal trespass, and while the officer was

      retrieving the warning forms, Stidhum ran. The officer caught Stidhum and

      found cocaine in his pocket.


[3]   The State charged Stidhum with Class B misdemeanor false informing, 4 Class

      A misdemeanor resisting law enforcement, and Level 6 felony possession of a

      narcotic drug. Stidhum pleaded guilty to resisting law enforcement and

      possession of a narcotic drug, and the State dismissed the false informing

      charge. The trial court sentenced Stidhum to one year for resisting law

      enforcement and two years for possession, to be served concurrently.




      1
          Ind. Code § 35-44.1-3-1 (2014).
      2
          Ind. Code § 35-48-4-6 (2014).
      3
       A confidential appendix contains documents and other information that may be excluded from public
      access pursuant to Ind. Administrative Rule 9(G) (2015).
      4
          Ind. Code § 35-44.1-2-3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015          Page 2 of 6
                                       Discussion and Decision 5
[4]   We may revise a sentence if it is inappropriate in light of the nature of the

      offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

      (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only

      the aggravators and mitigators found by the trial court, but also any other

      factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.

      App. 2007), trans. denied. The appellant bears the burden of demonstrating his

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[5]   When considering the nature of the offense, the advisory sentence is the starting

      point to determine the appropriateness of a sentence. Anglemyer v. State, 868

      N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

      sentencing range for a level 6 felony is six months to two and one-half years,

      with an advisory sentence of one year. Ind. Code § 35-50-2-7 (2014). A

      sentence for a Class A misdemeanor shall not exceed one year. Ind. Code § 35-

      50-3-2. Stidhum received a two-year sentence for the felony and one year for

      the misdemeanor, and the court ordered them served concurrently.


[6]   Regarding the nature of his offense, Stidhum was loitering at a convenience

      store. There were warrants for his arrest when he gave a false name to the




      5
       Stidhum’s sole argument on appeal is that his sentence is inappropriate under Appellate Rule 7(B).
      Nonetheless, he invites us to review the court’s decision for an abuse of discretion. (See Appellant’s Br. at 3.)
      We will not. See, e.g., King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (an inappropriate sentence
      analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015                  Page 3 of 6
      police. He possessed cocaine and fled the scene. There is nothing particularly

      egregious about his offense.


[7]   When considering the character of the offender, one relevant fact is the

      defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

      App. 2007). The significance of a criminal history in assessing a defendant’s

      character varies based on the gravity, nature, and number of prior offenses in

      relation to the current offense. Id.


[8]   Stidhum’s criminal history includes six felony convictions and two

      misdemeanor convictions. Although related mostly to substance abuse, 6 they

      also include violent acts. 7 His probation had been revoked for failing to appear

      and for “reasons unknown.” (Conf. App. at 28, 30.) Stidhum has not shown

      he can abide by the rules of a lesser sentence, and even his counsel was

      concerned if Stidhum were not closely supervised, “we’ll be back here on a

      probation violation.” (Tr. at 24.) Stidhum also had been arrested for multiple

      offenses that were not prosecuted. See Cotto v. State, 829 N.E.2d 520, 526 (Ind.

      2005) (lengthy arrest record reveals “defendant has not been deterred even after

      having been subject to the police authority of the State”).




      6
       These include manufacturing or delivery of controlled substances, three convictions of possession of a
      controlled substance, aggravated driving under the influence with license suspended or revoked, and driving
      under the influence.
      7
          These include domestic battery and battery.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015              Page 4 of 6
[9]    Stidhum requests an alternative placement to the Department of Correction.

       This is “an appropriate focus for application of our review.” Biddinger v. State,

       868 N.E.2d 407, 414 (Ind. 2007). However, trial courts are in the best position

       to know the feasibility and availability of such placements. Fonner v. State, 876

       N.E.2d 340, 343 (Ind. Ct. App. 2007). Stidhum was denied entrance to

       DuComb Center, 8 because they were not equipped to “dispers[e] medication for

       his anger management.” (Tr. at 20.) The trial court was aware of this and

       would presumably have known of other facilities and their capabilities. It

       declined to place Stidhum elsewhere because the available facility was “not

       willing to take [him] because of [his] history of violence.” (Id. at 26.)


[10]   We do not decide if “another sentence is more appropriate; rather the question is

       whether the sentence imposed is inappropriate.” Fonner, 876 N.E.2d at 344.

       “A defendant challenging the placement of a sentence must convince us that the

       given placement is itself inappropriate.” Id. This he has not done. See id. (trial

       courts are equipped to know the availability and resources regarding placement

       in their locales).


[11]   While there was nothing extraordinary about Stidhum’s offense, his criminal

       history indicates this two-year sentence is not inappropriate in light of his

       character. Accordingly, we affirm.




       8
        DuComb Center is “a community corrections project established in St. Joseph County (Ind.) in 1982[.]”
       https://www.ncjrs.gov/App/publications/Abstract.aspx?id=153737.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015            Page 5 of 6
[12]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1412-CR-434 | July 24, 2015   Page 6 of 6
