MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 10 2017, 5:36 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE J. Clayton Miller Curtis T. Hill, Jr. Richmond, Indiana Attorney General of Indiana
Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bert McQueen, III, February 10, 2017 Appellant-Defendant, Court of Appeals Case No. 81A04-1602-CR-281 v. Appeal from the Union Circuit Court State of Indiana, The Honorable Matthew R. Cox, Appellee-Plaintiff Judge Trial Court Cause No. 81C01-1409-MR-180
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 1 of 8 [1] Following a jury trial, Bert McQueen, III, was convicted of murder, a felony,
and obstruction of justice, a Level 6 felony. He then admitted to being a
habitual offender. The trial court sentenced McQueen to sixty-three years for
his murder conviction. Pursuant to an agreement between McQueen and the
State, the trial court sentenced McQueen to a concurrent two-year term for his
obstruction of justice conviction and enhanced the murder sentence by six years
for the habitual offender adjudication, for a total aggregate sentence of sixty-
nine years. On appeal, McQueen argues that his sixty-three-year sentence for
murder is inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts & Procedural History
[3] The facts most favorable to the convictions follow. In early September 2014,
McQueen lived with his lifelong friend Brandon Wicker while he worked on
Wicker’s house. In the days leading up to September 5, 2014, a neighbor heard
escalating arguments between McQueen and Wicker. McQueen also made
statements to a friend that he was going to kill Wicker or “kick his ass” because
Wicker apparently owed McQueen money. Transcript at 505. In the early
evening hours on September 5, 2014, McQueen, who had been working
outside, entered Wicker’s house, picked up a gun from the table, and aimed it at
Wicker. McQueen said “bang” and squeezed the trigger, shooting Wicker in
the head from approximately twelve inches away. Id. at 567. McQueen
observed black blood and saw Wicker fall to the floor. McQueen then fled to a
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 2 of 8 neighbor’s house and did not summon aid or try to help Wicker. A short time
later, McQueen returned to Wicker’s house. Using a towel, McQueen wiped
off the gun and then he wrapped the gun in the towel before throwing it in a
nearby river.
[4] Around 8:10 p.m., McQueen arrived at another neighbor’s home. After
approximately twenty minutes, that neighbor was informed by another that
McQueen had shot Wicker. The neighbor questioned McQueen, who admitted
what he had done. That neighbor then called the police. When police arrived,
McQueen informed them that he had shot Wicker and directed them to
Wicker’s home. Wicker was discovered lying in a large pool of blood on the
kitchen floor. Although emergency personnel observed brain matter coming
from the site of the gunshot wound, it was determined that Wicker was still
breathing. He was stabilized for transport by helicopter to the hospital, where
Wicker was placed on life support. After consulting with doctors about
Wicker’s condition, Wicker’s family made the decision to remove him from life
support.
[5] On September 16, 2014, the State charged McQueen with Count I, murder, a
felony, and filed a separate information alleging McQueen to be a habitual
offender. The State later amended the charging information to add Count II,
possession of a firearm by a serious violent felon, a Level 4 felony; County III,
reckless homicide, a Level 5 felony; and Count IV, obstruction of justice, a
Level 6 felony. The State dismissed Count III prior to trial. On December 8,
2015, a trifurcated jury trial commenced. The jury found McQueen guilty of
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 3 of 8 Counts I, II, and IV. At the conclusion of the first phase of the trial, the parties
filed a Joint Plea and Sentencing Recommendation providing that McQueen
would admit to the habitual offender allegation and have his murder sentence
enhanced by six years. In exchange, the State agreed to dismiss Count II and
that any sentence imposed for Count IV would be served concurrently with the
sentence for the murder conviction.
[6] A sentencing hearing was held on January 8, 2016. In sentencing McQueen,
the trial court identified two aggravating factors: McQueen’s lengthy criminal
history, which began at the age of fifteen, and his failure to seek medical
treatment for Wicker after he shot him. The trial court gave McQueen some
mitigation for remorse but noted “that’s not a lot.” Id. at 713. Finding that
McQueen’s criminal history is “one that is rarely seen”, the trial court
determined that an aggravated sentence was warranted. Id. at 718. The trial
court then sentenced McQueen to sixty-three years for the murder conviction.
In accordance with the agreement between McQueen and the State, the trial
court also sentenced McQueen to a concurrent two-year term for his
obstruction of justice conviction and enhanced the murder sentence by six years
for the habitual offender adjudication, for a total aggregate sentence of sixty-
nine years. McQueen now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 4 of 8 [7] McQueen argues that the sixty-three-year sentence for his murder conviction is
inappropriate. Despite the fact that the trial court imposed a sentence that is
authorized by statute, we may revise McQueen’s sentence if, “after due
consideration of the trial court’s decision, [we] find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). Ultimately, “[t]he principal role of
appellate review 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). Thus, “whether we regard
a sentence as appropriate ... 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.” Id. at 1224. McQueen bears
the burden of persuading our court that his sentence is inappropriate. Conley v.
State, 972 N.E.2d 864, 876 (Ind. 2012).
[8] McQueen argues that he does not deserve a sixty-three-year sentence for
murder because, as the trial court indicated, he is not the “worst of the worst”.
Transcript at 713.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 10 2017, 5:36 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE J. Clayton Miller Curtis T. Hill, Jr. Richmond, Indiana Attorney General of Indiana
Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bert McQueen, III, February 10, 2017 Appellant-Defendant, Court of Appeals Case No. 81A04-1602-CR-281 v. Appeal from the Union Circuit Court State of Indiana, The Honorable Matthew R. Cox, Appellee-Plaintiff Judge Trial Court Cause No. 81C01-1409-MR-180
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 1 of 8 [1] Following a jury trial, Bert McQueen, III, was convicted of murder, a felony,
and obstruction of justice, a Level 6 felony. He then admitted to being a
habitual offender. The trial court sentenced McQueen to sixty-three years for
his murder conviction. Pursuant to an agreement between McQueen and the
State, the trial court sentenced McQueen to a concurrent two-year term for his
obstruction of justice conviction and enhanced the murder sentence by six years
for the habitual offender adjudication, for a total aggregate sentence of sixty-
nine years. On appeal, McQueen argues that his sixty-three-year sentence for
murder is inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts & Procedural History
[3] The facts most favorable to the convictions follow. In early September 2014,
McQueen lived with his lifelong friend Brandon Wicker while he worked on
Wicker’s house. In the days leading up to September 5, 2014, a neighbor heard
escalating arguments between McQueen and Wicker. McQueen also made
statements to a friend that he was going to kill Wicker or “kick his ass” because
Wicker apparently owed McQueen money. Transcript at 505. In the early
evening hours on September 5, 2014, McQueen, who had been working
outside, entered Wicker’s house, picked up a gun from the table, and aimed it at
Wicker. McQueen said “bang” and squeezed the trigger, shooting Wicker in
the head from approximately twelve inches away. Id. at 567. McQueen
observed black blood and saw Wicker fall to the floor. McQueen then fled to a
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 2 of 8 neighbor’s house and did not summon aid or try to help Wicker. A short time
later, McQueen returned to Wicker’s house. Using a towel, McQueen wiped
off the gun and then he wrapped the gun in the towel before throwing it in a
nearby river.
[4] Around 8:10 p.m., McQueen arrived at another neighbor’s home. After
approximately twenty minutes, that neighbor was informed by another that
McQueen had shot Wicker. The neighbor questioned McQueen, who admitted
what he had done. That neighbor then called the police. When police arrived,
McQueen informed them that he had shot Wicker and directed them to
Wicker’s home. Wicker was discovered lying in a large pool of blood on the
kitchen floor. Although emergency personnel observed brain matter coming
from the site of the gunshot wound, it was determined that Wicker was still
breathing. He was stabilized for transport by helicopter to the hospital, where
Wicker was placed on life support. After consulting with doctors about
Wicker’s condition, Wicker’s family made the decision to remove him from life
support.
[5] On September 16, 2014, the State charged McQueen with Count I, murder, a
felony, and filed a separate information alleging McQueen to be a habitual
offender. The State later amended the charging information to add Count II,
possession of a firearm by a serious violent felon, a Level 4 felony; County III,
reckless homicide, a Level 5 felony; and Count IV, obstruction of justice, a
Level 6 felony. The State dismissed Count III prior to trial. On December 8,
2015, a trifurcated jury trial commenced. The jury found McQueen guilty of
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 3 of 8 Counts I, II, and IV. At the conclusion of the first phase of the trial, the parties
filed a Joint Plea and Sentencing Recommendation providing that McQueen
would admit to the habitual offender allegation and have his murder sentence
enhanced by six years. In exchange, the State agreed to dismiss Count II and
that any sentence imposed for Count IV would be served concurrently with the
sentence for the murder conviction.
[6] A sentencing hearing was held on January 8, 2016. In sentencing McQueen,
the trial court identified two aggravating factors: McQueen’s lengthy criminal
history, which began at the age of fifteen, and his failure to seek medical
treatment for Wicker after he shot him. The trial court gave McQueen some
mitigation for remorse but noted “that’s not a lot.” Id. at 713. Finding that
McQueen’s criminal history is “one that is rarely seen”, the trial court
determined that an aggravated sentence was warranted. Id. at 718. The trial
court then sentenced McQueen to sixty-three years for the murder conviction.
In accordance with the agreement between McQueen and the State, the trial
court also sentenced McQueen to a concurrent two-year term for his
obstruction of justice conviction and enhanced the murder sentence by six years
for the habitual offender adjudication, for a total aggregate sentence of sixty-
nine years. McQueen now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 4 of 8 [7] McQueen argues that the sixty-three-year sentence for his murder conviction is
inappropriate. Despite the fact that the trial court imposed a sentence that is
authorized by statute, we may revise McQueen’s sentence if, “after due
consideration of the trial court’s decision, [we] find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). Ultimately, “[t]he principal role of
appellate review 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). Thus, “whether we regard
a sentence as appropriate ... 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.” Id. at 1224. McQueen bears
the burden of persuading our court that his sentence is inappropriate. Conley v.
State, 972 N.E.2d 864, 876 (Ind. 2012).
[8] McQueen argues that he does not deserve a sixty-three-year sentence for
murder because, as the trial court indicated, he is not the “worst of the worst”.
Transcript at 713. The advisory sentence is the starting point the legislature has
chosen as an appropriate sentence for the crime committed. Childress v. State,
848 N.E.2d 1073, 1081 (Ind. 2006). The maximum possible sentence is
generally most appropriate for the worst offenders. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). A murder conviction carries a possible sentence of
forty-five to sixty-five years with the advisory sentence being fifty-five years.
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 5 of 8 Ind. Code § 35-50-2-3. McQueen was sentenced to sixty-three years, two years
shy of the maximum. We are thus not inclined to evaluate whether he is the
“worst of the worst.”
[9] With regard to the nature of the offense, McQueen argues that under the facts
of this case, an aggravated sentence is not warranted. McQueen attempts to
discount the aggravating factor of his failure to summon aid for Wicker by
pointing out that, from his perspective, after he saw black blood come from
Wicker’s head, he believed Wicker was already dead.1 McQueen’s subjective
belief does not change the fact that Wicker was still breathing and left lying in a
pool of blood for nearly an hour before a neighbor summoned help. Moreover,
we note that during the time McQueen could have been summoning aid, he
found the time to try to conceal the crime by wiping his fingerprints from the
gun and then throwing the gun in a nearby river.
[10] McQueen also argues that the crime was not particularly gruesome, focusing on
the fact that Wicker was not tortured, sexually abused, or robbed. McQueen’s
argument in this regard does not support his claim that we should view the
nature of the offense more favorable to him because had Wicker’s murder
involved any of the circumstances asserted by McQueen, McQueen likely
1 McQueen also asserts that he “is in fact responsible for Wicker receiving medical treatment.” Appellant’s Brief at 9. This argument is, at best, misleading. McQueen did not call 911 or seek medical assistance immediately after he shot Wicker. Instead, Wicker was more concerned with concealing the weapon. Assistance was summoned by a neighbor only after the neighbor confronted McQueen about an hour after the shooting occurred and McQueen admitted what he had done.
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 6 of 8 would have faced additional charges or even been eligible for a death sentence
or a sentence of life imprisonment without parole.
[11] McQueen also argues the nature of the offense was not heinous in that Wicker
died from a single gunshot to the head. We acknowledge that Wicker was shot
only once. However, it is the circumstances surrounding the shooting that are
particularly telling. We note that in the weeks leading up to the murder,
McQueen had threatened to kill Wicker because Wicker owed him money. In
the days prior to the murder, a neighbor heard increasingly escalating
arguments between the two men. This senseless shooting occurred when
McQueen entered Wicker’s home, picked up a gun, and shot Wicker, who was
a lifelong friend, in the head from approximately twelve inches away.
McQueen then left his friend to die alone on the floor in a pool of his own
blood while he took efforts to conceal the weapon.
[12] Turning to the character of the offender, we note, as did the trial court,
McQueen’s extensive criminal history. We agree with the trial court that this
alone justified an enhanced sentence. McQueen’s criminal history began when
he was fifteen years old. As a juvenile, McQueen was adjudicated for
aggravated battery and escape. As an adult, McQueen’s criminal convictions
span decades and cross state lines. McQueen has accumulated at least thirty
convictions, including felony convictions for offenses such as robbery while
armed with a deadly weapon; battery by means of a deadly weapon (by using a
shotgun as a club); and multiple counts of theft and forgery. He has also
accumulated offenses for resisting law enforcement, public intoxication,
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 7 of 8 disorderly conduct, possession of marijuana, affray (a.k.a. fighting), tampering
with a vehicle, and destruction of private or public property. Despite leniency
through suspended sentences, diversion programs, and probation, McQueen
continued to commit crimes. As the trial court aptly noted, McQueen’s
criminal history is “one that is rarely seen” and clearly reflects negatively on his
character. Transcript at 718. Also reflecting negatively on McQueen’s character
is the fact that he attempted to persuade his girlfriend at the time of the shooting
to not testify against him.
[13] In sum, we conclude that the nature of the offense and especially the character
of the offender as demonstrated by McQueen’s criminal history do not justify a
downward revision of McQueen’s sentence. McQueen’s sixty-three-year
sentence for murder is not inappropriate.
[14] Judgment affirmed.
[15] Riley, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017 Page 8 of 8