MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 16 2015, 9:07 am 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 ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jermaine Munn, Jr., September 16, 2015 Appellant-Defendant, Court of Appeals Case No. 71A04-1503-CR-96 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Appellee-Plaintiff, Judge Trial Court Cause No. 71D03-1406-MR-7
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 1 of 7 [1] In 2014, Appellee-Plaintiff the State of Indiana (“the State”) charged Appellant-
Defendant Jermaine Munn, Jr. with murder and Class B felony robbery. Munn
pled guilty to murder. Pursuant to the plea agreement, the State dropped the
robbery charge and left sentencing to the trial court’s discretion. The trial court
sentenced Munn to a sixty-five-year executed term. Munn appeals, arguing that
his sentence is inappropriate. We affirm the trial court’s sentence.
Facts and Procedural History [2] On April 16, 2014, then-sixteen-year-old Munn and his friend, Shane Williams,
agreed to rob Nathan Hall of marijuana and money. The plan was for Williams
to pretend to purchase marijuana from Hall and for Munn to arrive at the
transaction location and act as if he were robbing both men. Williams
contacted Hall and the two agreed to meet in order for Williams to purchase
marijuana from Hall. Once Williams and Hall met, Munn approached the two
carrying a 9mm handgun. Munn demanded property from Williams and Hall
and pointed the handgun at Hall’s face. Hall then began emptying his pockets
and stated, “Shane, are you going to do me this way?” App. p. 62. Munn then
stated, “he knows your name?”, and shot Hall once in the face, killing him.
App. p. 62. Munn and Williams then took marijuana and $80.00 in cash from
Hall and fled the scene.
[3] On June 11, 2014, the State charged Munn with murder and Class B felony
robbery. On October 13, 2014, Munn entered into a plea agreement with the
State whereby Munn would plead guilty to murder and, in return, the State
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 2 of 7 would dismiss the robbery charge. With regard to sentencing, the plea
agreement read as follows:
The parties will be free to argue at sentencing. ***
[T]he Defendant has been advised, and understands, that the possible penalty for Murder, a felony, is imprisonment for a period of between forty-five (45) years and sixty-five (65) years with the advisory sentence being fifty-five (55) years….
I understand that I have a right to appeal my sentence if there is an open plea. An open plea is an agreement which leaves my sentence to the Judge’s discretion. As a condition of entering this plea agreement I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences me within the terms of my plea agreement.
App. pp. 17-18. On March 6, 2015, the trial court sentenced Munn to sixty-five
years imprisonment.
Discussion and Decision I. Waiver of Right to Appeal Sentence [4] The State argues that Munn waived the right to appeal his sentence pursuant to
his plea agreement. However, the plea agreement states that Munn retained the
right to appeal his sentence in the event of an open plea. A plea agreement
where the issue of sentencing is left to the trial court’s discretion is often
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 3 of 7 referred to as an “open plea,” i.e. where the sentence is not fixed by the plea
agreement. Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004).
[5] In this case, unlike the cases cited by the State, the plea agreement was open as
it did not cap Munn’s potential sentence and allowed the parties to make
arguments at the sentencing hearing. The State even acknowledges in its brief
that “[s]entencing was left to the trial court’s discretion.” Appellee’s Br. p. 1.
Accordingly, we conclude that Munn did not waive the right to appeal his
sentence.
II. Appropriateness of Sentence [6] Munn contends that his sixty-five-year sentence is inappropriate in light of the
nature of his offense and his character. “Ind. Appellate Rule 7(B) empowers us
to independently review and revise sentences authorized by statute if, after due
consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender.” Anderson v. State, 989
N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “An appellant bears the
burden of showing both prongs of the inquiry favor revision of [his] sentence.”
Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “We must give
‘deference to a trial court’s sentencing decision, both because Rule 7(B) requires
us to give due consideration to that decision and because we understand and
recognize the unique perspective a trial court brings to its sentencing
decisions.’” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting
Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.).
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 4 of 7 [7] The nature of Munn’s senseless offense does nothing to convince us that his
sentence is inappropriate. Munn shot an unarmed eighteen-year-old man in the
face from point-blank range. Munn was under no threat when he took this
action. Despite Munn’s argument that the murder was a spur-of-the-moment
decision, it was committed part-and-parcel to a premeditated robbery
coordinated between Munn and Williams ahead of time and was intended to
silence Hall from incriminating them in the robbery.
[8] Munn’s only argument regarding his character is that the trial court should have
considered his age as a mitigating factor. Despite his young age, Munn has
amassed an extensive criminal history which reflects poorly on his character.
Munn had his first run-in with law enforcement in 2010 at the age of fourteen
when he was arrested for theft. In the subsequent three-and-a-half years, before
committing the instant crime, Munn committed numerous offenses including
disorderly conduct, theft, resisting law enforcement, false informing,
intimidation, burglary, possession of marijuana, and various juvenile status
offenses. On the same day Munn robbed and murdered Hall, Munn was
arrested for an unrelated burglary and possession of marijuana.
[9] We do not agree with Munn’s argument that his character is any less heinous
due to his age.
As we stated in Sensback v. State, 720 N.E.2d 1160, 1164 (Ind.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 16 2015, 9:07 am 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 ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jermaine Munn, Jr., September 16, 2015 Appellant-Defendant, Court of Appeals Case No. 71A04-1503-CR-96 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Appellee-Plaintiff, Judge Trial Court Cause No. 71D03-1406-MR-7
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 1 of 7 [1] In 2014, Appellee-Plaintiff the State of Indiana (“the State”) charged Appellant-
Defendant Jermaine Munn, Jr. with murder and Class B felony robbery. Munn
pled guilty to murder. Pursuant to the plea agreement, the State dropped the
robbery charge and left sentencing to the trial court’s discretion. The trial court
sentenced Munn to a sixty-five-year executed term. Munn appeals, arguing that
his sentence is inappropriate. We affirm the trial court’s sentence.
Facts and Procedural History [2] On April 16, 2014, then-sixteen-year-old Munn and his friend, Shane Williams,
agreed to rob Nathan Hall of marijuana and money. The plan was for Williams
to pretend to purchase marijuana from Hall and for Munn to arrive at the
transaction location and act as if he were robbing both men. Williams
contacted Hall and the two agreed to meet in order for Williams to purchase
marijuana from Hall. Once Williams and Hall met, Munn approached the two
carrying a 9mm handgun. Munn demanded property from Williams and Hall
and pointed the handgun at Hall’s face. Hall then began emptying his pockets
and stated, “Shane, are you going to do me this way?” App. p. 62. Munn then
stated, “he knows your name?”, and shot Hall once in the face, killing him.
App. p. 62. Munn and Williams then took marijuana and $80.00 in cash from
Hall and fled the scene.
[3] On June 11, 2014, the State charged Munn with murder and Class B felony
robbery. On October 13, 2014, Munn entered into a plea agreement with the
State whereby Munn would plead guilty to murder and, in return, the State
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 2 of 7 would dismiss the robbery charge. With regard to sentencing, the plea
agreement read as follows:
The parties will be free to argue at sentencing. ***
[T]he Defendant has been advised, and understands, that the possible penalty for Murder, a felony, is imprisonment for a period of between forty-five (45) years and sixty-five (65) years with the advisory sentence being fifty-five (55) years….
I understand that I have a right to appeal my sentence if there is an open plea. An open plea is an agreement which leaves my sentence to the Judge’s discretion. As a condition of entering this plea agreement I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences me within the terms of my plea agreement.
App. pp. 17-18. On March 6, 2015, the trial court sentenced Munn to sixty-five
years imprisonment.
Discussion and Decision I. Waiver of Right to Appeal Sentence [4] The State argues that Munn waived the right to appeal his sentence pursuant to
his plea agreement. However, the plea agreement states that Munn retained the
right to appeal his sentence in the event of an open plea. A plea agreement
where the issue of sentencing is left to the trial court’s discretion is often
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 3 of 7 referred to as an “open plea,” i.e. where the sentence is not fixed by the plea
agreement. Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004).
[5] In this case, unlike the cases cited by the State, the plea agreement was open as
it did not cap Munn’s potential sentence and allowed the parties to make
arguments at the sentencing hearing. The State even acknowledges in its brief
that “[s]entencing was left to the trial court’s discretion.” Appellee’s Br. p. 1.
Accordingly, we conclude that Munn did not waive the right to appeal his
sentence.
II. Appropriateness of Sentence [6] Munn contends that his sixty-five-year sentence is inappropriate in light of the
nature of his offense and his character. “Ind. Appellate Rule 7(B) empowers us
to independently review and revise sentences authorized by statute if, after due
consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender.” Anderson v. State, 989
N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “An appellant bears the
burden of showing both prongs of the inquiry favor revision of [his] sentence.”
Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “We must give
‘deference to a trial court’s sentencing decision, both because Rule 7(B) requires
us to give due consideration to that decision and because we understand and
recognize the unique perspective a trial court brings to its sentencing
decisions.’” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting
Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.).
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 4 of 7 [7] The nature of Munn’s senseless offense does nothing to convince us that his
sentence is inappropriate. Munn shot an unarmed eighteen-year-old man in the
face from point-blank range. Munn was under no threat when he took this
action. Despite Munn’s argument that the murder was a spur-of-the-moment
decision, it was committed part-and-parcel to a premeditated robbery
coordinated between Munn and Williams ahead of time and was intended to
silence Hall from incriminating them in the robbery.
[8] Munn’s only argument regarding his character is that the trial court should have
considered his age as a mitigating factor. Despite his young age, Munn has
amassed an extensive criminal history which reflects poorly on his character.
Munn had his first run-in with law enforcement in 2010 at the age of fourteen
when he was arrested for theft. In the subsequent three-and-a-half years, before
committing the instant crime, Munn committed numerous offenses including
disorderly conduct, theft, resisting law enforcement, false informing,
intimidation, burglary, possession of marijuana, and various juvenile status
offenses. On the same day Munn robbed and murdered Hall, Munn was
arrested for an unrelated burglary and possession of marijuana.
[9] We do not agree with Munn’s argument that his character is any less heinous
due to his age.
As we stated in Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999), “Age is neither a statutory nor a per se mitigating factor. There are cunning children and there are naïve adults.” In other words, focusing on chronological age, while often a shorthand for measuring culpability, is frequently not the end of the inquiry
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 5 of 7 for people in their teens and early twenties. See Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000). There are both relatively old offenders who seem clueless and relatively young ones who appear hardened and purposeful.
Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). Based on Munn’s extensive
criminal history and the callous and indifferent nature by which he committed
the instant crime, it seems clear that he falls into the latter category of hardened
and purposeful criminals. Accordingly, we find that Munn’s sentence was not
inappropriate in light of the nature of his offense and character.
[10] The judgment of the trial court is affirmed.
May, J., concurs.
Crone, J., dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 6 of 7 IN THE COURT OF APPEALS OF INDIANA
Jermaine Munn, Jr., Court of Appeals Case No. 71A04-1503-CR-96 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff
Crone, Judge, dissenting.
[11] Although the plea agreement’s waiver clause is inartfully drafted, I believe that
it is valid and should preclude Munn from appealing his sentence. In essence,
the clause states, “I understand that I have a right to appeal my sentence if there
is an open plea, but I agree to waive that right as long as the judge sentences me
within the terms of my plea agreement.” There was an open plea, and the
judge sentenced Munn within the terms of his plea agreement. Consequently, I
would find that Munn has waived his right to appeal his sentence and dismiss
this appeal. Waiver notwithstanding, I agree with the majority’s Rule 7(B)
analysis.
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015 Page 7 of 7