MARSHALL v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Daniel Marshall pleaded guilty to Level 6 felony possession of methamphetamine and admitted he was a habitual offender. He appeals his aggregate four-year sentence, claiming the sentence is inappropriate in light of the nature of his offense and his character. We affirm.

Facts and Procedural History

[2] Marshall and his passenger were involved in a one-car accident on August 3, 2024, in Dearborn County. Responding officers saw methamphetamine and paraphernalia in the car. Marshall initially refused to exit the car when requested to do so, and when he finally did exit, he threw a white rock-like substance on the ground and crushed it with his foot. The State charged Marshall with Level 6 felony possession of methamphetamine; Level 6 felony obstruction of justice; Class A misdemeanor resisting law enforcement; Class A misdemeanor operating while intoxicated endangering a person; Class C misdemeanor operating while intoxicated; and Class C misdemeanor possession of paraphernalia. The State later added a habitual offender enhancement alleging Marshall had accumulated at least three prior unrelated felonies.

[3] Marshall and the State entered into a plea agreement under which Marshall would plead guilty to Level 6 possession of methamphetamine and admit to being a habitual offender and the State would dismiss the remaining counts. The sentence was open to the court with a cap of four years in the aggregate.¹ The trial court accepted the plea agreement, ordered a presentence investigation report (“PSI”) to be prepared, and set a date for a sentencing hearing.

[4] The PSI shows Marshall was thirty-four years old at the time of sentencing. He started using marijuana and Xanax when he was twelve. He began using heroin daily when he was fifteen. He stopped using heroin when he was twenty-five but then began using methamphetamine shortly after. He used methamphetamine daily until “around the time he was arrested for this offense.” Appellant's App. Vol. 2 at 73. Marshall has five children with three women. His oldest is fifteen; his youngest is four months old. He lives with the mother of his youngest child. He is employed, working a swing shift on a barge on the Ohio River.

[5] Marshall was adjudicated a delinquent in 2009 and served time in detention and on probation. His first adult conviction was in 2010 for theft. Since then, Marshall has been convicted of at least seven felonies and at least six misdemeanors—many having to do with possession of drugs or drug paraphernalia—as well as theft, criminal mischief, and nonsupport of a dependent child. He has been incarcerated and served time on home detention and probation. He has violated his probation several times for reasons including new offenses and failed drug screens. He has also had criminal cases in Ohio and Kentucky. At Marshall's sentencing hearing, an addition was made to the PSI: Marshall had been sentenced two days prior for an operating while intoxicated conviction in Ohio County. See Tr. Vol. 2 at 17–18.

[6] In argument to the trial court, the State highlighted Marshall's “long history with the judicial system,” noting “it's clear that our court system has tried working with [him] in the past.” Id. at 24, 27. The State recommended “he serve all four years incarcerated” in the Indiana Department of Correction (“DOC”). Id. at 27.

[7] Marshall's counsel acknowledged Marshall's criminal history but said “all of it is related to his struggle with substance use” which began at a young age. Id. Counsel contended that after Marshall's most recent release from incarceration in February 2025, “he has made substantial progress in rebuilding his life.” Id. at 28. He had obtained stable employment, was playing an active role in raising his infant son, was receiving suboxone treatment and counseling, and had regained support from friends and family. Counsel argued, “All of this suggests that Mr. Marshall is ready to respond affirmatively to probation or short-term sentence.” Id. at 31. Counsel asked for a sentence of time served (44 days) for possession of methamphetamine and a three-year enhancement for the habitual offender admission, with direct placement on home detention to allow “close supervision with regular drug testing and treatment options.” Id.

[8] Marshall spoke in allocution, stating: “[I]t's obvious I have a drug problem” and “I've come to realize ․ I have to stay clean for myself.” Id. at 34. “Jail's never helped me. Prison's never helped me. I am finally asking for help.” Id. at 35.

[9] The trial court acknowledged Marshall's guilty plea but found he received a significant benefit from the agreement. The trial court stated, “[T]hese particular facts are serious, that there was a crash on US 50 and ․ complete noncompliance with law enforcement.” Id. at 39. The court also noted Marshall's criminal history was significant and the court “has given him every program that I have.” Id. at 41. The court ordered an aggregate four-year-sentence fully executed in the DOC.

Marshall's sentence is not inappropriate.

[10] Marshall asks us to revise his sentence. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides 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 offender.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[11] “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are “separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016)). “[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127.

[12] The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024).

[13] When evaluating the nature of an offense, we begin with the advisory sentence as “the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g by 875 N.E.2d 218. A Level 6 felony conviction carries a sentencing range of six months to two and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2019). A Level 6 felony may be enhanced by three to six years due to a habitual offender finding. I.C. § 35-50-2-8(i)(2) (2023). Without the plea agreement, Marshall could have been sentenced to as little as three and one-half years or as much as eight and one-half years. But the plea agreement capped his sentence at four years, and the trial court ordered him to serve the advisory sentence for the Level 6 felony conviction and the lowest possible sentence for the habitual offender admission. Because our legislature has selected the advisory sentence as the “starting point” for “an appropriate sentence for the crime committed,” the defendant bears a “particularly heavy burden” when the trial court imposes the advisory sentence. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[14] Marshall contends the circumstances did not warrant imposition of a fully executed four-year sentence. He argues there was no evidence he harmed anyone and claims he “was still under the influence of th[e] accident” when he interacted with police. Appellant's Br. at 12. He states police found a “relatively small quantity” of methamphetamine in his car, indicating personal use only. Id. at 11. But the trial court called the accident that brought Marshall to the attention of law enforcement a “significant crash.” Tr. Vol. 2 at 39. It caused airbags to deploy, and Marshall had a passenger. And our Supreme Court has soundly rejected the claim that drug possession is a victimless crime. State v. Timbs, 169 N.E.3d 361, 373 (Ind. 2021) (noting that “distributing or possessing even small amounts of drugs threatens society”). The nature of Marshall's offense was not egregious, but neither does it warrant revision of his sentence.

[15] As to Marshall's character, he argues he is employed and supports several dependent children. He claims he took responsibility for his conduct and “had taken steps toward rectifying the underlying reasons for the commission of his offense.” Appellant's Br. at 12.

[16] Even a minor criminal record reflects poorly on a defendant's character, Cramer, 240 N.E.3d at 700, and Marshall's criminal record is certainly not minor. At thirty-four years old, Marshall has seven felony convictions and several misdemeanor convictions. Many of those convictions are related to illegal substances, yet Marshall had not sought or benefitted from substance use treatment until recently. As for Marshall's assertion he took responsibility by pleading guilty, he received a substantial benefit from the plea agreement. Cf. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011) (noting a guilty plea is not necessarily a mitigating factor where the defendant receives a substantial benefit and the decision to plead guilty may have been a pragmatic one), trans. denied. Five criminal charges against Marshall were dismissed, and his sentence was capped at four years. Marshall has not shown such substantial virtuous traits or persistent examples of good character to warrant sentence revision.

[17] Finally, to the extent Marshall argues his sentence is inappropriate because it should not be fully executed, “it is quite difficult for a defendant to prevail on a claim that his placement is inappropriate.” Moon v. State, 110 N.E.3d 1156, 1162 (Ind. Ct. App. 2018) (internal quotation omitted). Here, the trial court thoroughly explained why imprisonment was necessary in Marshall's case: “We've tried probation over and over. There's at least 11 adjudicated probation violations. The Court's not doing probation or community corrections again.” Tr. Vol. 2 at 42. Marshall has not persuaded us his fully executed four-year sentence is inappropriate.

Conclusion

[18] Marshall's sentence is not inappropriate considering the nature of his offense and character.

[19] Affirmed.

FOOTNOTES

1.   The plea agreement also resolved a second unrelated case of invasion of privacy. The victim in that case—the mother of three of Marshall's children—testified at the joint sentencing hearing, but that case is not part of this appeal.

Kenworthy, Judge.

Bailey, J., and Tavitas, J., concur.