Court of Appeals of Indiana | Memorandum Decision 34A02-1712-CR-2892 | June 7, 2018 Page 1 of 7

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

Derick W. Steele

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Timothy Rush,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 7, 2018

Court of Appeals Case No.

34A02-1712-CR-2892

Appeal from the Howard Superior 

Court.

The Honorable George A. Hopkins, 

Judge.

Trial Court Cause No.

34D04-1708-F5-134

Rucker, Senior Judge

[1] Timothy Rush appeals his thirty-month sentence for operating a motor vehicle 

after forfeiture of license for life contending it is inappropriate. We disagree 

and therefore affirm.
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Facts and Procedural History

[2] This case arises out of an August 8, 2017 investigation by the Kokomo police 

department into a possible hit-and-run car crash. Officers arrested Rush, and 

the following day the State charged him with Count 1 operating a motor vehicle 

after forfeiture of license for life, a Level 5 felony;

1

Count 2 possession of a 

controlled substance, a Level 6 felony;2Count 3 false informing, a Class B 

misdemeanor;3Count 4 leaving the scene of an accident, a Class B 

misdemeanor;4and Count 5 unlawful use of body armor, a Level 6 felony.5

[3] At some point, not clear from the record before us, Rush and the State entered 

an agreement by which Rush would plead guilty to Count 1 as a Level 6 felony 

and in exchange the State would dismiss the remaining charges.6At the change 

of plea hearing conducted October 12, 2017, the trial court advised Rush, 

 

1

Ind. Code § 9-30-10-17 (2015).

2

Ind. Code § 35-48-4-7 (2014).

3

Ind. Code § 35-44.1-2-3 (2016).

4

Ind. Code § 9-26-1-1.1 (2017).

5

Ind. Code § 35-47-5-13(b) (2014).

6 The parties contend that Rush was charged in Count 1 with operating a motor vehicle as a habitual traffic 

violator, a Level 5 felony. Appellant’s Br. p. 4; Appellee’s Br. p. 4. They then assert that by agreement with 

the State Rush pleaded guilty to operating a motor vehicle after forfeiture for life, a Level 6 felony as a lesser 

included offense of Count 1. Appellant’s Br. p. 4; Appellee’s Br. p. 4. First, the record is clear that Rush was 

charged in Count 1 with operating a motor vehicle after forfeiture of license for life, a Level 5 felony. See

Appellant’s App. Vol. 2, pp. 12, 17. Thus, Rush pleaded guilty to the exact offense for which he was 

charged, albeit as a purported lesser included Level 6 felony. Because neither party raises the issue in this 

appeal, we express no opinion on how or whether the charge of operating a motor vehicle after forfeiture of 

license for life, as a Level 6 felony, is a lesser offense of either operating as a habitual traffic violator, a Level 

5 felony, or operating after forfeiture for life, a Level 5 felony.
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among other things, of the penalty range for a Level 6 felony offense. As for a 

factual basis for the plea, the parties stipulated to the facts set forth in the 

affidavit of probable cause and its attachments. The trial court took the plea 

under advisement and set the matter for sentencing.

[4] At the November 17, 2017 sentencing hearing neither side presented evidence. 

Instead, the State asked the trial court to accept the thirty-month in-home 

detention recommended by the probation department. Rush argued for twentyfour months of in-home detention followed by six months of supervised 

probation. Noting Rush’s criminal history—which includes “10 felonies and 11 

misdemeanors”—the trial court declared that although “[t]hirty months is not 

beyond reason . . . [i]n-home is not appropriate in this case.” Tr. p. 13. The 

trial court then sentenced Rush to thirty months executed, to be served in the 

Howard County jail. This appeal followed.

Discussion and Decision

[5] Rush begins his argument by declaring that the trial court erred in sentencing 

him because it did not give proper consideration to his character and the nature 

of the crime. He then invites this Court to review and revise his sentence 

contending it is inappropriate under Indiana Appellate Rule 7(B).

[6] Though a trial court may have acted within its lawful discretion in determining 

a sentence, article VII, section 4 of the Indiana Constitution “authorizes

independent appellate review and revision of a sentence imposed by the trial 

court.” Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002). This appellate 
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authority is implemented through Appellate Rule 7(B) which provides: “The 

Court 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 offender.”

[7] Subject to this review and revise authority, sentencing decisions rest within the 

sound discretion of the trial court and are reviewed on appeal only for abuse of 

that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on 

reh’g, 875 N.E.2d 218 (2007). Contrary to Rush’s apparent assertion, the nature 

of the offense and the character of the offender are not factors the trial court is 

bound to consider when exercising its sentencing discretion; rather, Appellate 

Rule 7(B) “articulates a standard of review designed as guidance for appellate 

courts.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Further, a 

request for sentence revision under Rule 7(B) is not a claim of sentencing error. 

Kimbrough v. State, 979 N.E.2d 625, 630 (Ind. 2012). Instead, it is a request for 

an appellate tribunal to exercise its constitutional authority to revise a lawfully 

entered sentence. Id. With this in mind, we evaluate Rush’s claims.

[8] The location where a sentence is to be served is an appropriate focus for 

application of our review and revise authority. Biddinger v. State, 868 N.E.2d 

407, 414 (Ind. 2007). However, it is difficult for a defendant to prevail on a 

claim that the placement of his or her sentence is inappropriate. Fonner v. State, 

876 N.E.2d 340, 343 (Ind. Ct. App. 2007). This is so in part because the 

question under Rule 7(B) is not whether another sentence, or another location, 

is more appropriate; rather, the question is whether the sentence imposed is 
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inappropriate. Id. The defendant bears the burden of persuading the appellate 

court that his or her sentence is inappropriate. Childress, 848 N.E.2d at 1080.

[9] Placement in a community corrections program is an alternative to serving a 

sentence in the Department of Correction—or here, the county jail—and is 

made at the sole discretion of the trial court. Brown v. State, 947 N.E.2d 486, 

489 (Ind. Ct. App. 2011), trans. denied. A defendant is not entitled to serve his 

or her sentence in a community corrections program; rather, such placement is 

a matter of grace and conditional liberty that is a favor and not a right. Id. In 

similar fashion, “[p]lacement in an in-home detention program is [also] a 

matter of grace and a conditional liberty that is a favor, not a right.” Rodriguez 

v. State, 714 N.E.2d 667, 670 (Ind. Ct. App. 1999), trans. denied.

[10] Rush contends that his placement in the county jail is inappropriate in light of 

the nature of his offense and his character. As for the nature of his offense, 

Rush offers a few short lines in support: (1) “Rush operated a vehicle while 

suspended”; (2) “[o]nly the worst offense and offenders should be sentenced 

under the maximum enhancement permitted by law”; and (3) “[o]perating a 

vehicle while suspended for life cannot be seen as the worst of the worst Level 6 

felonies.” Appellant’s Br. p. 6. He concludes by asserting “the nature of the 

offense does not rise to the level warranting a maximum sentence.” Id. As for 

his character, Rush concedes that he has “a criminal history that is concerning.” 

Id. at 7. He argues, however, that “the nature of his offenses [is] not such that 

Rush’s character requires the worst treatment.” Id. According to Rush, his 
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sentence “would be better served on Community Corrections, or through the 

Howard County Work Release program instead of penal incarceration.” Id.

[11] We first observe that in this appeal Rush does not challenge the length of his 

sentence. Instead, he challenges only the location where the sentence is to be 

served. Thus, his references to “maximum enhancement” and “maximum 

sentence” and “worst treatment” are off the mark and lack merit. Further, 

Rush’s contention that his sentence would be best served in community 

corrections or county work release is merely a claim that such placement is 

more appropriate than that imposed by the trial court. But this is not the test. 

Where a defendant challenges the placement of a sentence, he must convince us 

that the given placement is itself inappropriate. Fonner, 876 N.E.2d at 343.

[12] Concerning the nature of the offense, the record shows this was not a run-ofthe-mill operating while suspended case as Rush implies. Instead, the record 

shows that while his driving license was forfeited for life, Rush took 

unauthorized possession of a car, crashed it into a mailbox, and left the scene. 

As for the character of the offender, Rush was age 35 at the time of the instant 

offense. He has a criminal history which, including his juvenile record, spans 

more than twenty years. Most are driving-related convictions, but his record 

also includes drug-related offenses, property crimes, and at least one act of 

physical violence. See Appellant’s App. Vol. 2, pp. 46-55. Significantly, on 

three different occasions Rush was placed on home detention which was later 

either partially or fully revoked for non-compliance. See id. at 47, 49, 50. And
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on at least one other occasion Rush’s one-year probation was revoked for 

violation. Id. at 50.

[13] When we consider the character of the offender, one relevant fact is the 

defendant’s criminal history. Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. 

App. 2011). The significance of criminal history depends on “the gravity, 

nature, and number of prior offenses in relation to the current offense.” Id. 

Rush’s criminal history is extensive. As the trial court pointed out, it includes 

“10 felonies and 11 misdemeanors.” Tr. p. 13; see also Appellant’s App. Vol. 2, 

pp. 46-51. Further, Rush has had prior failures with home detention and 

probation. In the end, Rush has not convinced this Court that his sentence is 

inappropriate based on his character and the nature of his offense.

Conclusion

[14] We affirm the judgment of the trial court.

May, J., and Barnes, J., concur.