Markeon L. Devine v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 23 2020, 10:24 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, P.C. Attorney General of Indiana Lafayette, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Markeon L. Devine, June 23, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-234 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1906-F3-24

Bradford, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-234| June 23, 2020 Page 1 of 5

Case Summary [1] In January of 2020, Markeon Devine was sentenced to fourteen years of

incarceration with five years suspended to probation after he pled guilty to

Level 3 felony robbery, Level 6 felony resisting law enforcement, and Level 6

felony auto theft. Devine contends that his sentence is inappropriate. We

affirm.

Facts and Procedural History [2] In the early morning hours of March 5, 2019, after consuming two Xanax pills

and smoking marijuana, Devine stole his friend’s vehicle and drove to a West

Lafayette Circle K gas station. Devine entered the Circle K, pointed a handgun

at the cashier, and demanded money. After the cashier refused, Devine cocked

the handgun and again demanded money. The cashier handed Devine $208.00,

and Devine left the store. [3] Shortly thereafter, police officers arrived at the Circle K, and after talking to the

cashier, the officers spotted Devine driving away from the area. The officers

initiated a traffic stop, with which Devine initially complied. After Devine’s

vehicle came to a stop, the officers exited their vehicle and ordered Devine to

exit his vehicle as well. Devine, however, began quickly driving towards the

officers and then through a residential yard. As the officers pursued Devine, his

vehicle struck a utility pole, causing severe damage to the vehicle. Following

the collision, Devine continued driving down Lindberg Road until he stopped

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the vehicle and fled on foot. Devine was eventually driven by his roommate to a

family member’s residence in Chicago. [4] On June 21, 2019, the State charged Devine with Level 3 felony robbery, Level

6 felony resisting law enforcement, Level 6 felony auto theft, and Class A

misdemeanor theft. On December 26, 2019, pursuant to a plea agreement,

Devine agreed to plead guilty to Level 3 felony robbery, Level 6 felony resisting

law enforcement, and Level 6 felony auto theft, and the State agreed to dismiss

the remaining theft charge. Devine and the State also agreed to a sentencing

range between five and nine years for the executed portion of his sentence. On

January 17, 2020, the trial court sentenced Devine to fourteen years with five

years suspended to probation.

Discussion and Decision [5] Devine contends that his fourteen-year sentence is inappropriate. We may

revise a sentence 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.” Ind. Appellate Rule 7(B). “Sentencing 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) (internal citations omitted). “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

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of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The

defendant bears the burden of proving that his sentence is inappropriate in light

of both the nature of his offense and his character. Gil v. State, 988 N.E.2d 1231,

1237 (Ind. Ct. App. 2013). A Level 3 felony conviction has a sentencing range

between three and sixteen years, with the advisory sentence being nine years.

Ind. Code § 35-50-2-5. A Level 6 felony conviction has a sentencing range

between six months and two and one-half years, with the advisory sentence

being one year. Ind. Code § 35-50-2-7. Where, as here, “the most serious crime

for which the defendant is sentence is a Level 3 felony, the total of the

consecutive terms of imprisonment may not exceed twenty (20) years.” Ind.

Code § 35-50-1-2(d)(4). [6] The nature of Devine’s offenses cannot be portrayed in a positive light

warranting a reduction in his sentence. After using controlled substances,

Devine stole a vehicle, drove to a gas station, and pointed a handgun at and

demanded money from the cashier. Following the robbery, Devine’s vehicle

was stopped by police as he left the Circle K; however, a few moments after

stopping, Devine fled the scene, initially driving his vehicle quickly towards the

police officers. Devine eventually crashed the vehicle and fled to Illinois.

Devine’s behavior not only jeopardized his own life but also that of the cashier,

the officers, and other persons traveling the same roads that morning. [7] Devine’s character also does not warrant a reduction in his sentence. In 2017,

Devine was charged with Class B misdemeanor marijuana possession, a charge

that was ultimately diverted. In September of 2018, Devine was charged with

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Level 6 felony battery resulting in moderate bodily injury, Class A

misdemeanor battery resulting in bodily injury, Class B misdemeanor battery by

bodily waste, and Class C misdemeanor illegal consumption of an alcoholic

beverage in Delaware County, which remained pending following the

disposition of this matter. In December of 2018, Devine was charged with Level

6 felony residential entry in Tippecanoe County, ultimately pleading guilty to

Class A misdemeanor residential entry. Moreover, Devine was out on bond

when he committed the offenses in this matter. Not only do we find it troubling

that the seriousness of Devine’s offenses continues to escalate but also that all of

his offenses involve harming or endangering other individuals. Devine appears

unwilling to conform his behavior to societal norms. [8] Devine specifically cites his acceptance of responsibility by pleading guilty,

substance abuse issues, remorse, and young age as factors that warrant a

reduction in his sentence. The trial court considered these factors and

determined that they were outweighed by the aggravating factors, which was

well within its discretion. See Singer v. State, 674 N.E.2d 11, 17–18 (Ind. Ct.

App. 1996) (“It is well settled, however, that a sentencing court is not required

to find the existence of mitigating circumstances nor to give mitigating

circumstances the same weight as the defendant gives them.”). Devine has

failed to establish that his sentence is inappropriate. [9] The judgment of the trial court is affirmed.

Baker, J., and Pyle, J., concur.

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