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



## IN THE COURT OF APPEALS OF INDIANA

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– NOT FOR PUBLICATION MATHIAS, Judge

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.2 Paul Marcum ( “ Marcum ” ) was convicted after a jury trial of Class D felony Operating a Moto r 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 Josh ua Lim burg ( “ 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 th e 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 pl ausible 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 g et i nto the driver ’ s seat of a vehi cle and drive away
from the home. B ased 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 for3 bei ng 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 wen t 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
differe nt location but Marcum was again not present when the officers arrive d

. Officer
Porfidio called Marcum , and Marcum informed Officer Porfidio of his location at a gas
station . When the o fficers arrived, they placed Marcum under arrest , but the truc k 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 Moto r Vehicle After Suspension as a Habitual Traffic Violator

. O n 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 arg ues 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 the4 offender. ” Although we may review and revise a sentence, “ [t]he principal role of appellate rev iew 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. 20 07)) (internal quotation marks omitted). Furthermore, t he 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)).
Th e maximum sentence for a Class D felony is three ye ars , 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 request s 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 h e sought to hide the vehicle from the police officers

. Tr. p. 143.

1 Ind. Code § 35

- 50

- 2

- 75 As to Marcum ’ s character, of particular significance is Marcum ’ s lengthy criminal history, which includ es fifteen 2 misdemeanor offenses and four felony offe nses. Eight of
his prior convictions in volved 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 a nd 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,
includi ng 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 in appropriate.
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.