MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 16 2016, 8:44 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas W. Vanes Gregory F. Zoeller Office of the Public Defender Attorney General of Indiana Crown Point, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher George Gordon, August 16, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1511-CR-1982 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Salvador Vasquez, Judge Trial Court Cause No. 45G01-1405-MR-2
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 1 of 6 [1] Following his guilty plea to voluntary manslaughter as a Class A felony,1
Christopher George Gordon (“Gordon”) appeals his thirty-two-year sentence,
contending that it is inappropriate in light of the nature of the offense and the
character of the offender.
[2] We affirm.
Facts and Procedural History [3] Stephen Davis (“Davis”) and others had taunted Gordon during the weeks
leading up to May 3, 2014. On that day, Gordon, his girlfriend, and another
friend were driving around East Chicago when Gordon spotted Davis walking
along the sidewalk. Davis, in turn, saw Gordon and made a gesture toward
him. The record before us suggests that “the gesture was like a finger gun.” Tr.
at 39, 48, 55. Gordon became enraged, exited the car armed with a handgun,
and chased Davis down the street while firing multiple shots at him. Davis was
shot numerous times in the back and died at the scene. Gordon, who was
twenty-one years old at the time, was charged with murder.
[4] On July 1, 2015, two weeks prior to the scheduled jury trial, the trial court held
a guilty plea hearing to address Gordon’s stipulated plea agreement. The terms
of the plea agreement, in pertinent part, included: (1) the State’s agreement to
file an amended information to add voluntary manslaughter as a second count;
1 See Ind. Code § 35-42-1-3. We note that, effective July 1, 2014, a new version of this criminal statute was enacted to reflect that voluntary manslaughter is now a Level 2 felony. Because Gordon committed his crime prior to July 1, 2014, we will apply the statute in effect at the time he committed his crime.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 2 of 6 (2) Gordon’s agreement to plead guilty to voluntary manslaughter with his
sentence capped at thirty-five years; and (3) the State’s agreement to dismiss the
murder count at the time of sentencing. Appellant’s App. at 74. The trial court
accepted Gordon’s plea agreement and dismissed the murder count.
[5] During the sentencing hearing, Gordon admitted that he had anger issues.
While denying he had any substance abuse issues, Gordon reported that he
used marijuana “every day, all day,” that his drug of choice was “a form of
crystal meth called ‘molly,’” that he began using codeine when he was six or
seven years old, and that he had used all three drugs on the day he killed Davis.
Id. at 110. According to his pre-sentence investigation report, Gordon had one
conviction for felony criminal trespass in Cook County, Illinois. At the time of
sentencing, Gordon had three criminal cases pending, one in the East Chicago
City Court for Class A misdemeanor criminal trespass and two in Lake
Superior Court, one for Class C misdemeanor operating a motor vehicle
without ever receiving a license, and one for Level 6 felony intimidation of a
law enforcement officer. Gordon’s Risk Assessment System score placed him
in the high risk category to reoffend. Id. Additionally, while incarcerated in the
Lake County Jail for the present offense, Gordon had accumulated twenty
“noted Rule Violations.” Id. at 117.
[6] The trial court found in mitigation that Gordon pleaded guilty and accepted
responsibility for his actions. Id. at 80. In aggravation of his sentence, the trial
court found Gordon’s criminal history, the pending charges against him at the
time of sentencing, and his failure to take advantage of prior lenient sentences.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 3 of 6 Id. The trial court committed Gordon to the Department of Correction for a
term of thirty-two years. Gordon now appeals.
Discussion and Decision [7] Gordon contends that his sentence is inappropriate. Pursuant to Indiana
Appellate Rule 7(B), we may revise a sentence authorized by statute 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. “The 7(B) appropriateness inquiry is a discretionary exercise of the
appellate court’s judgment, not unlike the trial court’s discretionary sentencing
determination.” Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied,
135 S. Ct. 978, 190 L. Ed. 2d 862 (2015) (citation omitted). “On appeal,
though, we conduct that review with substantial deference and give due
consideration to the trial court’s decision—since the principal role of our review
is to attempt to leaven the outliers, and not to achieve a perceived correct
sentence.” Id. at 1292 (internal quotation marks omitted). Accordingly, 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. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks omitted). It is the defendant’s burden on appeal to persuade
the reviewing court that the sentence imposed by the trial court is inappropriate.
Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 4 of 6 [8] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), decision clarified on reh’g, 875
N.E.2d 218 (Ind. 2007)). The advisory sentence for Class A felony voluntary
manslaughter is thirty years. See Ind. Code § 35-50-2-4. Here, the trial court
imposed a sentence of thirty-two years, a term that was two years more than the
advisory sentence for a Class A felony and three years less than the plea
agreement cap. Gordon argues that his actions surrounding Davis’s death
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 16 2016, 8:44 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas W. Vanes Gregory F. Zoeller Office of the Public Defender Attorney General of Indiana Crown Point, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher George Gordon, August 16, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1511-CR-1982 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Salvador Vasquez, Judge Trial Court Cause No. 45G01-1405-MR-2
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 1 of 6 [1] Following his guilty plea to voluntary manslaughter as a Class A felony,1
Christopher George Gordon (“Gordon”) appeals his thirty-two-year sentence,
contending that it is inappropriate in light of the nature of the offense and the
character of the offender.
[2] We affirm.
Facts and Procedural History [3] Stephen Davis (“Davis”) and others had taunted Gordon during the weeks
leading up to May 3, 2014. On that day, Gordon, his girlfriend, and another
friend were driving around East Chicago when Gordon spotted Davis walking
along the sidewalk. Davis, in turn, saw Gordon and made a gesture toward
him. The record before us suggests that “the gesture was like a finger gun.” Tr.
at 39, 48, 55. Gordon became enraged, exited the car armed with a handgun,
and chased Davis down the street while firing multiple shots at him. Davis was
shot numerous times in the back and died at the scene. Gordon, who was
twenty-one years old at the time, was charged with murder.
[4] On July 1, 2015, two weeks prior to the scheduled jury trial, the trial court held
a guilty plea hearing to address Gordon’s stipulated plea agreement. The terms
of the plea agreement, in pertinent part, included: (1) the State’s agreement to
file an amended information to add voluntary manslaughter as a second count;
1 See Ind. Code § 35-42-1-3. We note that, effective July 1, 2014, a new version of this criminal statute was enacted to reflect that voluntary manslaughter is now a Level 2 felony. Because Gordon committed his crime prior to July 1, 2014, we will apply the statute in effect at the time he committed his crime.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 2 of 6 (2) Gordon’s agreement to plead guilty to voluntary manslaughter with his
sentence capped at thirty-five years; and (3) the State’s agreement to dismiss the
murder count at the time of sentencing. Appellant’s App. at 74. The trial court
accepted Gordon’s plea agreement and dismissed the murder count.
[5] During the sentencing hearing, Gordon admitted that he had anger issues.
While denying he had any substance abuse issues, Gordon reported that he
used marijuana “every day, all day,” that his drug of choice was “a form of
crystal meth called ‘molly,’” that he began using codeine when he was six or
seven years old, and that he had used all three drugs on the day he killed Davis.
Id. at 110. According to his pre-sentence investigation report, Gordon had one
conviction for felony criminal trespass in Cook County, Illinois. At the time of
sentencing, Gordon had three criminal cases pending, one in the East Chicago
City Court for Class A misdemeanor criminal trespass and two in Lake
Superior Court, one for Class C misdemeanor operating a motor vehicle
without ever receiving a license, and one for Level 6 felony intimidation of a
law enforcement officer. Gordon’s Risk Assessment System score placed him
in the high risk category to reoffend. Id. Additionally, while incarcerated in the
Lake County Jail for the present offense, Gordon had accumulated twenty
“noted Rule Violations.” Id. at 117.
[6] The trial court found in mitigation that Gordon pleaded guilty and accepted
responsibility for his actions. Id. at 80. In aggravation of his sentence, the trial
court found Gordon’s criminal history, the pending charges against him at the
time of sentencing, and his failure to take advantage of prior lenient sentences.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 3 of 6 Id. The trial court committed Gordon to the Department of Correction for a
term of thirty-two years. Gordon now appeals.
Discussion and Decision [7] Gordon contends that his sentence is inappropriate. Pursuant to Indiana
Appellate Rule 7(B), we may revise a sentence authorized by statute 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. “The 7(B) appropriateness inquiry is a discretionary exercise of the
appellate court’s judgment, not unlike the trial court’s discretionary sentencing
determination.” Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied,
135 S. Ct. 978, 190 L. Ed. 2d 862 (2015) (citation omitted). “On appeal,
though, we conduct that review with substantial deference and give due
consideration to the trial court’s decision—since the principal role of our review
is to attempt to leaven the outliers, and not to achieve a perceived correct
sentence.” Id. at 1292 (internal quotation marks omitted). Accordingly, 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. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks omitted). It is the defendant’s burden on appeal to persuade
the reviewing court that the sentence imposed by the trial court is inappropriate.
Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 4 of 6 [8] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), decision clarified on reh’g, 875
N.E.2d 218 (Ind. 2007)). The advisory sentence for Class A felony voluntary
manslaughter is thirty years. See Ind. Code § 35-50-2-4. Here, the trial court
imposed a sentence of thirty-two years, a term that was two years more than the
advisory sentence for a Class A felony and three years less than the plea
agreement cap. Gordon argues that his actions surrounding Davis’s death
reflected only that he acted while under sudden heat and, since that was an
element of voluntary manslaughter, did not warrant a sentence greater than the
advisory. We find Gordon’s actions reflected more than sudden heat. Gordon
was not just reacting to a situation in front of him; instead, Gordon jumped out
of a car in reaction to a “gesture,” chased down Davis, and shot him multiple
times in the back. Gordon’s sentence, which is only two years over the
advisory, is not inappropriate in light of the nature of the offense.
[9] Gordon also fails to show that his sentence was inappropriate in light of his
character. While denying that he had a problem with substance abuse, Gordon
reported that he used marijuana “every day, all day,” that his drug of choice
was “a form of crystal meth called ‘molly,’” that he began using codeine when
he was six or seven years old, and that he had used all three drugs on the day he
killed Davis. Appellant’s App. at 110. At the time of sentencing, Gordon had
one felony conviction for criminal trespass, as well as three pending criminal
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 5 of 6 cases, one for Class A misdemeanor criminal trespass, one for Class C
misdemeanor operating a motor vehicle without ever receiving a license, and
one for Level 6 felony intimidation of a law enforcement officer. Id. at 107.
The trial court found that prior leniency by criminal courts had no deterrent
effect on Gordon’s criminal behavior. Id. at 80. Gordon’s Risk Assessment
System score placed him in the high risk category to reoffend. Id. at 110.
Additionally, while incarcerated in the Lake County Jail for the present offense,
Gordon had accumulated twenty “noted Rule Violations.” Id. at 117.
Gordon’s sentence of thirty-two years is not inappropriate in light of the
[10] Gordon has not met his burden of proving that his sentence is inappropriate in
light of the nature of the offense and the character of the offender, and
therefore, we decline to revise it under Indiana Appellate Rule 7(B).
[11] Affirmed.
[12] Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1511-CR-l982| August 16, 2016 Page 6 of 6