      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                       FILED
      regarded as precedent or cited before any                                  Apr 16 2020, 9:12 am

      court except for the purpose of establishing                                     CLERK
                                                                                  Indiana Supreme Court
      the defense of res judicata, collateral                                        Court of Appeals
                                                                                       and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Timothy P. Broden                                         Curtis T. Hill, Jr.
      Lafayette, Indiana                                        Attorney General of Indiana
                                                                Tiffany A. McCoy
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Eric E. Markwith,                                         April 16, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-2427
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Gregory S. Loyd,
      Appellee-Plaintiff.                                       Judge Pro Tem
                                                                Trial Court Cause No.
                                                                79D04-1904-CM-1949



      Mathias, Judge.


[1]   Eric E. Markwith entered an open plea of guilty to Class A misdemeanor

      possession of a synthetic drug in Tippecanoe Superior Court. The trial court


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020                      Page 1 of 5
      imposed a 365-day executed sentence, which Markwith contends is

      inappropriate in light of the nature of the offense and his character as an

      offender.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On July 24, 2018, Markwith was incarcerated at the Tippecanoe County Jail. A

      member of the county sheriff’s department investigated a burning smell and

      discovered Markwith using batteries to light a joint. A subsequent search of

      Markwith’s cell revealed a second joint. The contraband was sent to the Indiana

      State Police laboratory, where lab technicians confirmed the presence of a

      synthetic drug. Markwith received a jail sanction consisting of thirty days in

      segregation, during which he was confined to a cell for twenty-three hours a

      day.


[4]   On April 16, 2019, the State charged Markwith with Class A misdemeanor

      possession of a synthetic drug. Markwith entered an open plea of guilty to the

      offense, and a judgment of conviction was entered on September 18, 2019. The

      trial court proceeded directly to sentencing and heard testimony about several

      pending charges against Markwith in other Indiana counties, as well as

      Markwith’s numerous prior convictions. The trial court sentenced Markwith to

      a term of 365 days executed in the Tippecanoe County Jail, the maximum

      penalty for a Class A misdemeanor. Markwith now appeals.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020   Page 2 of 5
                                     Discussion and Decision
[5]   Markwith argues that his sentence is inappropriate in light of the nature of his

      offense and his character as an offender. Indiana Rule of Appellate Procedure

      7(B) authorizes appellate courts to “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.” See also Gibson v. State, 51 N.E.3d 204, 215 (Ind. 2016).


[6]   In considering whether Rule 7(B) sentence revision is warranted, we “refrain

      from merely substituting our judgment for that of the trial court.” Golden v.

      State, 862 N.E.2d 1212, 1218 (Ind. Ct. App. 2007), trans. denied. The question

      under Rule 7(B) review is not whether another sentence is more appropriate,

      but instead whether the sentence imposed is inappropriate. King v. State, 894

      N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the defendant’s burden on appeal to

      persuade the Court that a sentence is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006).


[7]   Markwith argues that his sentence is inappropriate in light of the nature of the

      offense. In considering whether a sentence is inappropriate in light of the nature

      of the offense, we compare the elements of the offense to the “details and

      circumstances of the commission of the offense.” Townsend v. State, 45 N.E.3d

      821, 831 (Ind. Ct. App. 2015), trans. denied. When Markwith committed the

      offense in question, Indiana Code section 35-48-4-11.5(c) (repealed July 1,

      2019) read “a person who knowingly or intentionally possesses a synthetic drug


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020   Page 3 of 5
      . . . commits possession of a synthetic drug . . . a Class A misdemeanor.”

      Though Markwith was convicted of a misdemeanor offense, excusing the trial

      court from articulating and balancing aggravating and mitigating circumstances

      as part of its sentencing statement, such circumstances may still inform the trial

      court’s sentencing decision. See Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct.

      App. 2016); see also Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (stating

      that sentencing statements identifying aggravators and mitigators are required

      “whenever imposing sentence for a felony offense”).


[8]   Here, Markwith’s offense was committed within a county jail while he was

      incarcerated for an unrelated charge. This detail is a valid aggravating

      circumstance in the commission of an offense. See Hines v. State, 30 N.E.3d

      1216, 1226 (Ind. 2015) (noting as relevant to nature of the offense that battery

      was committed in prison). That Markwith possessed a synthetic drug, however,

      did not cause physical injury to another, nor did it cause property loss. Our

      preference is to reserve maximum sentences for “the very worst offenses,”

      including those that result in physical injury or property loss. Buchanan v. State,

      699 N.E.2d 655, 657 (Ind. 1998); see also I.C. § 35-38-1-7.1(b)(1) (“The court

      may consider . . . as favoring suspending the sentence and imposing probation:

      (1) The crime neither caused nor threatened serious harm to persons or

      property”). We also observe that because the location of the offense was within

      a jail, Markwith was punished for the infraction with a thirty-day jail sanction.


[9]   Markwith additionally argues that his sentence is inappropriate in light of his

      character as an offender. A defendant’s criminal history is relevant to our

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020   Page 4 of 5
       broader consideration of his character under Rule 7(B) review. See Garcia v.

       State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. The significance

       of criminal history will vary based upon the “gravity, nature and number of

       prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d

       261, 263 (Ind. 2008) (internal quotation marks and citation omitted). Prior to

       the instant offense, Markwith had amassed twenty-seven convictions. The State

       allows that, while Markwith’s crime is “not the most egregious crime,” his

       criminal history indicates that he has a clear disregard for the law. Appellee’s

       Br. at 9. We cannot disagree with this assessment and therefore conclude that

       Markwith has failed to demonstrate that his sentence is inappropriate in light of

       his character as an offender.


                                                 Conclusion
[10]   Based on Markwith’s extensive criminal history, we decline to grant relief under

       Appellate Rule 7(B) for sentence inappropriateness.


[11]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2427 | April 16, 2020   Page 5 of 5
