MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 01 2018, 10:22 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Marion County Public Attorney General of Indiana Defender Agency Caroline G. Templeton Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Kasten, May 1, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1711-CR-2654 v. Appeal from the Marion Superior Court State of Indiana, The Hon. Grant W. Hawkins, Appellee-Plaintiff. Judge Trial Court Cause No. 49G05-1505-MR-18447
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 1 of 8 Case Summary [1] In February of 2015, Justin Kasten, who was in need of money, formulated a
plan with two confederates—all three armed with handguns—to rob a
marijuana dealer. When the dealer arrived, one of Kasten’s accomplices
pointed a gun at the dealer, and gunfire soon erupted. Although there is no
evidence that Kasten fired a shot, the dealer and his companion were both
killed in the shootout. Kasten was convicted of and sentenced for two counts of
felony murder, receiving an aggregate sentence of ninety-five years of
incarceration. Kasten contends that his sentence is inappropriately harsh.
Because we disagree, we affirm.
Facts and Procedural History [2] On the evening of February 17, 2015, Kasten, Sean Wright, a male named
Caleb, and William Haskett were in Haskett’s house at 1044 South Harlan
Street in Indianapolis. Kasten mentioned that he needed money, and Wright
suggested that they could make money quickly by stealing from a person he
knew to be a marijuana dealer. The plan was for Wright to point a gun at the
person with the marijuana, take the drugs, and hand the drugs to Kasten. To
this end, the quartet apparently arranged for Daniel White and Devin Calloway
to come to the area in the belief that the duo would be in possession of
marijuana.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 2 of 8 [3] When the vehicle with White and Calloway arrived, Wright climbed into the
rear seat behind White, Kasten stood outside the vehicle near Wright, and
Caleb walked around to the passenger side. Wright, Caleb, and Kasten were all
armed with firearms, and Wright pointed a handgun at White. Kasten was
standing outside the vehicle, waiting to be given the marijuana, when the
shooting started.
[4] While Kasten suffered a gunshot wound to his neck and arm, White and
Calloway fared much worse, both dying. Calloway was shot three times,
including a shot in the back that perforated his heart and one to the head, either
of which would have been fatal. White was shot five times, including shots (1)
in his left eye that went through his brain, (2) to his neck that damaged his heart
before the bullet lodged itself in his spinal column, and (3) in the back that went
through his heart and left lung, any one of which would have been fatal.
[5] On May 28, 2015, the State charged Kasten with two counts of felony murder
and one count of Level 3 felony attempted robbery. On September 27, 2017,
following a three-day trial, a jury found Kasten guilty as charged. On October
20, 2017, the trial court held a sentencing hearing, merged the robbery
conviction into one of the felony murder convictions, and imposed consecutive
sentences of forty-seven and one-half years for each felony murder conviction,
for an aggregate sentence of ninety-five years of incarceration.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 3 of 8 [6] Kasten contends that his ninety-five-year sentence imposed following his
conviction of two counts of felony murder in inappropriately harsh. 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.” Ind. Appellate Rule
7(B). “Although appellate review of sentences must give due consideration to
the trial court’s sentence because of the special expertise of the trial bench in
making sentencing decisions, Appellate Rule 7(B) is an authorization to revise
sentences when certain broad conditions are satisfied.” Shouse v. State, 849
N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation
marks omitted). “[W]hether we regard a sentence as appropriate at the end of
the day 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In
addition to the “due consideration” we are required to give to the trial court’s
sentencing decision, “we understand and recognize the unique perspective a
trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007).
[7] As for the nature of Kasten’s offenses, they arose out of a remarkably ill-
conceived scheme to rob a known drug dealer at gunpoint, which not
surprisingly resulted in gunfire and two persons losing their lives. As the trial
court stated, “the most important factor … is there are two deaths.” Tr. Vol. III
p. 499. Indiana courts have long recognized that consecutive sentences are
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 4 of 8 appropriate when more than one victim is harmed. See, e.g., Myers v. State, 27
N.E.3d 1069, 1082 (Ind. 2015); Cardwell, 895 N.E.2d at 1225 (“Whether the
counts involve one or multiple victims is highly relevant to impose consecutive
sentences”). The Indiana Supreme Court has noted that consecutive sentences
seem “necessary to vindicate the fact that there were separate harms and
separate acts against more than one person.” Serino v. State, 798 N.E.2d 852,
857 (Ind. 2003). The nature of Kasten’s offenses, and the devastating effect
they had, supports the imposition of a lengthy sentence.
[8] Kasten’s decision to participate in the attempted robbery demonstrates his poor
character. Needing money to raise a child, rather than work, Kasten agreed to
participate in a dangerous crime without hesitation. Kasten demonstrated
remorse for his participation only to the extent that he told police that he should
have sold his gun instead. There is no indication that Kasten needed to be
coerced into participating in the robbery or tried to talk the others out of it.
Instead, the evidence indicates that Kasten willingly did his part and was ready
to take the marijuana out of the car window, had things gone as planned.
[9] Kasten’s poor character is further demonstrated by his criminal behavior and
supports the appropriateness of his sentence. Kasten’s juvenile record, while
not particularly serious, nonetheless reflects poorly on his character. See Reis v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 01 2018, 10:22 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Marion County Public Attorney General of Indiana Defender Agency Caroline G. Templeton Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Kasten, May 1, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1711-CR-2654 v. Appeal from the Marion Superior Court State of Indiana, The Hon. Grant W. Hawkins, Appellee-Plaintiff. Judge Trial Court Cause No. 49G05-1505-MR-18447
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 1 of 8 Case Summary [1] In February of 2015, Justin Kasten, who was in need of money, formulated a
plan with two confederates—all three armed with handguns—to rob a
marijuana dealer. When the dealer arrived, one of Kasten’s accomplices
pointed a gun at the dealer, and gunfire soon erupted. Although there is no
evidence that Kasten fired a shot, the dealer and his companion were both
killed in the shootout. Kasten was convicted of and sentenced for two counts of
felony murder, receiving an aggregate sentence of ninety-five years of
incarceration. Kasten contends that his sentence is inappropriately harsh.
Because we disagree, we affirm.
Facts and Procedural History [2] On the evening of February 17, 2015, Kasten, Sean Wright, a male named
Caleb, and William Haskett were in Haskett’s house at 1044 South Harlan
Street in Indianapolis. Kasten mentioned that he needed money, and Wright
suggested that they could make money quickly by stealing from a person he
knew to be a marijuana dealer. The plan was for Wright to point a gun at the
person with the marijuana, take the drugs, and hand the drugs to Kasten. To
this end, the quartet apparently arranged for Daniel White and Devin Calloway
to come to the area in the belief that the duo would be in possession of
marijuana.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 2 of 8 [3] When the vehicle with White and Calloway arrived, Wright climbed into the
rear seat behind White, Kasten stood outside the vehicle near Wright, and
Caleb walked around to the passenger side. Wright, Caleb, and Kasten were all
armed with firearms, and Wright pointed a handgun at White. Kasten was
standing outside the vehicle, waiting to be given the marijuana, when the
shooting started.
[4] While Kasten suffered a gunshot wound to his neck and arm, White and
Calloway fared much worse, both dying. Calloway was shot three times,
including a shot in the back that perforated his heart and one to the head, either
of which would have been fatal. White was shot five times, including shots (1)
in his left eye that went through his brain, (2) to his neck that damaged his heart
before the bullet lodged itself in his spinal column, and (3) in the back that went
through his heart and left lung, any one of which would have been fatal.
[5] On May 28, 2015, the State charged Kasten with two counts of felony murder
and one count of Level 3 felony attempted robbery. On September 27, 2017,
following a three-day trial, a jury found Kasten guilty as charged. On October
20, 2017, the trial court held a sentencing hearing, merged the robbery
conviction into one of the felony murder convictions, and imposed consecutive
sentences of forty-seven and one-half years for each felony murder conviction,
for an aggregate sentence of ninety-five years of incarceration.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 3 of 8 [6] Kasten contends that his ninety-five-year sentence imposed following his
conviction of two counts of felony murder in inappropriately harsh. 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.” Ind. Appellate Rule
7(B). “Although appellate review of sentences must give due consideration to
the trial court’s sentence because of the special expertise of the trial bench in
making sentencing decisions, Appellate Rule 7(B) is an authorization to revise
sentences when certain broad conditions are satisfied.” Shouse v. State, 849
N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation
marks omitted). “[W]hether we regard a sentence as appropriate at the end of
the day 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In
addition to the “due consideration” we are required to give to the trial court’s
sentencing decision, “we understand and recognize the unique perspective a
trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d
867, 873 (Ind. Ct. App. 2007).
[7] As for the nature of Kasten’s offenses, they arose out of a remarkably ill-
conceived scheme to rob a known drug dealer at gunpoint, which not
surprisingly resulted in gunfire and two persons losing their lives. As the trial
court stated, “the most important factor … is there are two deaths.” Tr. Vol. III
p. 499. Indiana courts have long recognized that consecutive sentences are
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 4 of 8 appropriate when more than one victim is harmed. See, e.g., Myers v. State, 27
N.E.3d 1069, 1082 (Ind. 2015); Cardwell, 895 N.E.2d at 1225 (“Whether the
counts involve one or multiple victims is highly relevant to impose consecutive
sentences”). The Indiana Supreme Court has noted that consecutive sentences
seem “necessary to vindicate the fact that there were separate harms and
separate acts against more than one person.” Serino v. State, 798 N.E.2d 852,
857 (Ind. 2003). The nature of Kasten’s offenses, and the devastating effect
they had, supports the imposition of a lengthy sentence.
[8] Kasten’s decision to participate in the attempted robbery demonstrates his poor
character. Needing money to raise a child, rather than work, Kasten agreed to
participate in a dangerous crime without hesitation. Kasten demonstrated
remorse for his participation only to the extent that he told police that he should
have sold his gun instead. There is no indication that Kasten needed to be
coerced into participating in the robbery or tried to talk the others out of it.
Instead, the evidence indicates that Kasten willingly did his part and was ready
to take the marijuana out of the car window, had things gone as planned.
[9] Kasten’s poor character is further demonstrated by his criminal behavior and
supports the appropriateness of his sentence. Kasten’s juvenile record, while
not particularly serious, nonetheless reflects poorly on his character. See Reis v.
State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017) (holding that even a minor
criminal record reflects poorly on a defendant’s character). Kasten had a
battery charge dismissed following completion of supervised release and a true
finding on a criminal trespass charge. In addition to his charged misconduct,
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 5 of 8 Kasten regularly used marijuana prior to his arrest. Furthermore, Kasten’s
possession of a firearm during the attempted robbery was illegal. See Ind. Code
§ 35-47-2-3(g) (a license to carry a handgun shall not be issued to a person under
18 years of age); Ind. Code § 35-47-2-1(a), -1(e) (carrying a handgun without a
license is a Class A misdemeanor). Kasten’s prior behavior that is criminal,
though not charged, is properly considered by this Court. See, e.g., Harlan v.
State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012) (“Allegations of prior criminal
activity need not be reduced to conviction before they may properly be
considered aggravating circumstances by a sentencing court.”). Kasten’s
disregard for the law reflects poorly on his character.
[10] Kasten argues in part that his sentence should be reduced because this was a
felony murder and that he played a relatively minor role. Regardless of
whether Kasten was the shooter, he willingly participated in a crime when he
and his co-conspirators were all armed with handguns. Even if Kasten did not
expect his confederates to shoot, the crime he agreed to was inherently
dangerous and posed a substantial risk of injury and death to all involved,
especially because the intended victim was a known drug dealer. To the extent
that Kasten deserves consideration for his allegedly minor role in the murders,
we note that the trial court imposed sentences significantly shorter than the
advisory sentence for felony murder, which is fifty-five years. Ind. Code § 35-
50-2-3. Kasten’s mitigated sentence adequately addresses Kasten’s role as an
accomplice.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 6 of 8 [11] Kasten argues that his own injuries during the commission of the crime merit
consideration in the appropriateness of his sentence. Kasten’s injuries were the
result of his own conduct and agreement to participate in a particularly
dangerous crime. Indeed, Kasten’s injury demonstrates the severity of the
crime and does not merit mitigating consideration. Kasten also argues that
because he cooperated with the police at one interview he should receive a
lesser sentence. We note that, in general, cooperation with the police after a
defendant is apprehended represents a pragmatic decision and is not entitled to
mitigating weight. Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010).
That seems to have been the case here, as Kasten emphasized that had he
played only a minor role in the robbery. Moreover, Kasten’s cooperation with
the police was short-lived. By the time of trial, Kasten had reverted to his initial
story about being at Haskett’s house, but not remembering anything else from
that night. Kasten’s cooperation also did not extend to testifying against
Wright or Caleb.
[12] Finally, although we acknowledge Kasten’s youth, that does not render his
sentence inappropriate in this case. Both the Indiana Supreme Court and the
United States Supreme Court have recognized a presumption that juveniles are
less culpable than adults based on developments in psychology and brain
development. See Brown v. State, 10 N.E.3d 1, 7 (Ind. 2014) (citing Graham v.
Florida, 560 U.S. 40, 68 (2010)). This presumption is primarily based on the
notion that there are three main differences between juvenile offenders and
adult offenders: (1) juveniles lack maturity; (2) juveniles are more susceptible to
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 7 of 8 negative influences; and (3) the character of a juvenile is not as well formed as
an adult’s. Id. Be that as it may, those considerations have not led the Indiana
Supreme Court to conclude that lengthy sentences for juveniles convicted of
serious crimes are necessarily inappropriate. See, e.g., Taylor, 86 N.E.3d at 166–
67 (concluding that an aggregate sentence of eighty years was appropriate for a
seventeen-year old who was convicted of murder and conspiracy to commit
murder). At the time of his crimes, Kasten was only two months shy of
eighteen years old. Being so close to his majority, Kasten’s alleged youth loses
a significant portion of its potentially mitigating effect. Moreover, there is no
indication that Kasten had a diminished capacity rendering him less mature
than others his age. It is also worth noting that Kasten’s age was already taken
into account by the trial court in reducing each of his sentences below the
advisory sentence for felony murder. In light of the nature of his offenses and
his character, Kasten has failed to establish that his sentence is inappropriately
harsh.
[13] We affirm the judgment of the trial court.
Baker, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2654 | May 1, 2018 Page 8 of 8