Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 1 of 6

MEMORANDUM DECISION

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

R. Patrick Mcgrath

Alcorn Goering & Sage, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kenneth S. Marshall,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 13, 2015

Court of Appeals Cause No.

39A01-1405-CR-204

Appeal from the Jefferson Superior 

Court

Cause No. 39D01-1209-FB-1100

The Honorable Alison T. Frazier, 

Judge

Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 39D01-1209-FB-1100 | February 13, 2015 Page 2 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 3 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 
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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.”). 
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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 
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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.