Paul Marcum v. State of Indiana ( 2012 )

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:
MARK I. COX GREGORY F. ZOELLER
The Mark I. Cox Law Office, LLC Attorney General of Indiana
Richmond, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
FILED
Dec 28 2012, 9:15 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
PAUL MARCUM, )
)
Appellant-Defendant, )
)
vs. ) No. 89A01-1205-CR-240
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Darrin M. Dolehanty, Judge
Cause No. 89D03-1111-FD-468
December 28, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Paul Marcum (“Marcum”) was convicted after a jury trial of Class D felony
Operating a Motor Vehicle After Suspension as a Habitual Traffic Violator. He was
sentenced to twenty-seven months executed in the Indiana Department of Corrections.
He appeals and argues that his sentence is inappropriate in light of the nature of the
offense and his character.
We affirm.
Facts and Procedural History
On October 30, 2011, Marcum called the police to have Joshua Limburg
(“Limburg”) removed from his residence. Limburg lived at Marcum’s house but
Marcum requested that he leave after they had an argument. When the police officers
arrived, Chad Porfidio and Brandon Cappa, they told the men that they could not order
one of them to leave but recommended that one of the men leave or that the men go to
separate rooms in the house to alleviate further problems. Both men refused to leave.
After speaking with the men, the officers returned to their vehicles, but remained in the
area in case they received a return call, which they deemed was plausible due to the
“heated situation[.]” Tr. p. 127.
And the officers were correct in their assessment of the situation, for a few
minutes later, the officers heard Marcum and Limburg engaging in a verbal altercation,
and then they observed Marcum get into the driver’s seat of a vehicle and drive away
from the home. Based on the officers’ observations, Marcum was the sole occupant in
the vehicle. Officer Porfidio thought Marcum’s license was suspended but radioed
dispatch for verification. Dispatch confirmed that Marcum’s license was suspended for
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being a habitual traffic violator and told the officers Marcum’s cellular number from
which he had called in his original complaint. The officers called Marcum, and they
requested that he speak with him. He told the officers that he had parked the vehicle on
South Fifteenth Street. When Officer Cappa went to South Fifteenth Street, he could not
find Marcum or the truck.
Officer Porfidio again spoke with Marcum and offered to meet Marcum at a
different location but Marcum was again not present when the officers arrived. Officer
Porfidio called Marcum, and Marcum informed Officer Porfidio of his location at a gas
station. When the officers arrived, they placed Marcum under arrest, but the truck was
not at the location. Marcum remarked to the officers that they “wouldn’t find his truck.”
Tr. p. 143.
After a jury trial on March 28, 2012, the jury found Marcum guilty of Class D
felony Operating a Motor Vehicle After Suspension as a Habitual Traffic Violator. On
May 2, 2012, Marcum was sentenced to twenty-seven months at the Indiana Department
of Correction, his driving privileges were forfeited for life, and he was fined $750.
Marcum now appeals.
Discussion and Decision
Marcum argues that his sentence of twenty-seven months to the Indiana
Department of Correction is inappropriate in light of the nature of the offense and his
character. Under Indiana Appellate Rule 7(B), we 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
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offender.” Although we may review and revise a sentence, “[t]he principal role of
appellate review should be to attempt to leaven the outliers, and identify some guiding
principles for trial courts and those charged with improvement of the sentencing statutes,
but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008).
We must give “deference to a trial court’s sentencing decision, both because Rule
7(B) requires us to give due consideration to that decision and because we understand and
recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor
v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation marks omitted).
Furthermore, the defendant has the burden to persuade us “that the sentence imposed by
the trial court is inappropriate.” Cardwell, 895 N.E.2d at 1224 (citing Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006)).
The maximum sentence for a Class D felony is three years, with an advisory
sentence of one and one-half years.1 Here, Marcum received a sentence of twenty-seven
months.
Regarding the nature of the offense, our review of the record reveals that despite
repeated requests from the officers to return to the scene or to meet at specified locations,
Marcum did not do so. When he eventually did tell officers his location and they placed
him under arrest, he remarked that they would not be able to find his vehicle, which
suggests that he sought to hide the vehicle from the police officers. Tr. p. 143.
1
Ind. Code § 35-50-2-74
As to Marcum’s character, of particular significance is Marcum’s lengthy criminal
history, which includes fifteen2 misdemeanor offenses and four felony offenses. Eight of
his prior convictions involved motor vehicle offenses, and his probation has been revoked
twice. Moreover, at the time of the present offense, he had only been released from
parole for three weeks, and he was also out on bond for charges including Attempted
Theft and Operating a Motor Vehicle After Suspension as a Habitual Traffic Violator,
which is the same offense committed in the present case. In addition, while Marcum was
out on bond in the present case, he was charged with additional criminal offenses,
including conversion and criminal mischief.
For these reasons, we conclude that an executed sentence of twenty-seven months
in the Indiana Department of Correction is not inappropriate.
Affirmed.
KIRSCH, J., and CRONE, J., concur.
2
The trial court found fourteen prior misdemeanor convictions; however, based on the pre-sentence
investigation report, Marcum had fifteen prior misdemeanor convictions.
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