MEMORANDUM DECISION
                                                                    Feb 13 2015, 9:10 am
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
R. Patrick Mcgrath                                        Gregory F. Zoeller
Alcorn Goering & Sage, LLP                                Attorney General of Indiana
Madison, Indiana

                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kenneth S. Marshall,                                      February 13, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          39A01-1405-CR-204
        v.                                                Appeal from the Jefferson Superior
                                                          Court
                                                          Cause No. 39D01-1209-FB-1100
State of Indiana,
Appellee-Plaintiff.                                       The Honorable Alison T. Frazier,
                                                          Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015   Page 1 of 6
                                             Case Summary
[1]   Kenneth Marshall appeals his sentence for Class B felony burglary and his

      status as an habitual offender. We affirm.


                                                     Issues
[2]   Marshall raises two issues, which we restate as:


                       I.      whether the trial court erred by finding that
                               Marshall’s habitual offender enhancement was
                               nonsuspendable; and


                       II.     whether the trial court erred by failing to grant
                               Marshall placement in community corrections.

                                                     Facts
[3]   In September 2012, Marshall entered his neighbor’s apartment and took money

      from the neighbor’s wallet. The State charged Marshall with Class B felony

      burglary, Class D felony theft, and alleged that he was an habitual offender.

      Marshall pled guilty to Class B felony burglary and to being an habitual

      offender. The trial court initially sentenced Marshall to the minimum sentence

      of six years for the Class B felony enhanced by the minimum habitual offender

      enhancement of ten years with the ten-year enhancement suspended to

      probation. The State filed a motion to correct erroneous sentence, arguing that

      the habitual offender enhancement was nonsuspendable. The trial court

      granted the State’s motion and corrected Marshall’s sentence. In May 2014, the

      trial court sentenced Marshall to six years for the Class B felony enhanced by



      Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015   Page 2 of 6
      the minimum habitual offender enhancement of ten years with none of the

      sentence suspended. Marshall now appeals.


                                                  Analysis
                      I. Suspendability of Habitual Offender Enhancement

[4]   Marshall argues that the trial court should have ordered his ten-year habitual

      offender enhancement to be suspended. Sentencing decisions rest within the

      sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

      2007), clarified on reh’g by 875 N.E.2d 218 (Ind. 2007). Accordingly, sentencing

      decisions “are reviewed on appeal only for an abuse of discretion.” Id.


[5]   The minimum sentence for a Class B felony conviction is six years, which the

      trial court imposed here. See Ind. Code § 35-50-2-5. Marshall was also found to

      be an habitual offender. “A habitual offender finding does not constitute a

      separate crime nor result in a separate sentence, but rather results in a sentence

      enhancement imposed upon the conviction of a subsequent felony.” Greer v.

      State, 680 N.E.2d 526, 527 (Ind. 1997). At the time of his offense, Indiana

      Code Section 35-50-2-8 provided that the trial court “shall sentence a person

      found to be a habitual offender to an additional fixed term that is not less than

      the advisory sentence for the underlying offense nor more than three (3) times

      the advisory sentence for the underlying offense.” The advisory sentence for a

      Class B felony was ten years. Consequently, the minimum habitual offender

      sentencing enhancement for Marshall’s offense was ten years. This results in a




      Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015   Page 3 of 6
      minimum possible sentence for Marshall’s offense of sixteen years, which the

      trial court imposed.


[6]   Marshall’s minimum sentence was nonsuspendable under Indiana Code

      Section 35-50-2-2(b)(1) because Marshall had prior unrelated felony

      convictions. See I.C. § 35-50-2-2(b)(1) (noting that a “court may suspend only

      that part of the sentence that is in excess of the minimum sentence” where

      “[t]he crime committed was a Class A felony or Class B felony and the person

      has a prior unrelated felony conviction”) (repealed by P.L. 158-2013, § 653 (eff.

      July 1, 2014)). Thus, the trial court properly found that Marshall’s minimum

      sixteen-year sentence was nonsuspendable. See, e.g., Bauer v. State, 875 N.E.2d

      744 (Ind. Ct. App. 2008) (holding that the trial court only could suspend that

      portion of the sentence in excess of three and one-half years, which was the

      minimum sentence for a Class D felony enhanced by an habitual substance

      offender finding), trans. denied; Young v. State, 901 N.E.2d 624 (Ind. Ct. App.

      2009), trans. denied.


[7]   Marshall requests that we reconsider the holdings in Bauer and Young and many

      other cases with similar holdings. We decline to so do. The State properly

      points out that, had the legislature disagreed with our interpretation, it had

      many opportunities to correct our approach. See, e.g., Bailey v. State, 979 N.E.2d

      133, 141 (Ind. 2012) (“Certainly, had the General Assembly disapproved of our

      approach and desired to create a threshold standard for physical pain, it could

      have done so. In the absence of such a change, we think it fair to infer a

      persuasive degree of legislative acquiescence with respect to our approach.”).

      Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015   Page 4 of 6
      We conclude that the trial court did not abuse its discretion when it did not

      suspend the habitual offender enhancement.


                                                II. Placement

[8]   Next, Marshall argues that the trial court should have placed him in community

      corrections rather than in the Department of Correction. Marshall raised this

      issue with the trial court, and the trial court stated that it would be

      “impractical” to do so given the length of incarceration. Tr. p. 49.


      On appeal, Marshall argues that his placement was an abuse of discretion.

      However, the location where a sentence is to be served is not subject to review

      for abuse of discretion. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008)

      (citing Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007)). Rather, placement is

      reviewed under Indiana Appellate Rule 7(B). Id. “Nonetheless, we note that it

      will be quite difficult for a defendant to prevail on a claim that the placement of

      his sentence is inappropriate.” Id. “This is because 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.” Id. at

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

      that the given placement is itself inappropriate.” Id. “As a practical matter,

      trial courts know the feasibility of alternative placements in particular counties

      or communities.” Id.


[9]   Marshall makes no argument that his placement was inappropriate, and he has

      waived that issue. Waiver notwithstanding, we cannot say that his placement

      Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015   Page 5 of 6
       was inappropriate. Marshall has four prior theft convictions, and he has failed

       to respond to escalating punishments. We acknowledge his physical health

       problems and the health problems of his family. However, we simply cannot

       say that his placement was inappropriate.


                                                 Conclusion
[10]   The trial court properly did not suspend Marshall’s habitual offender

       enhancement. Also, we cannot say that Marshall’s placement in the

       Department of Correction rather than community corrections was

       inappropriate. We affirm.


[11]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015   Page 6 of 6
