MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 29 2019, 10:33 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Bradley Keffer Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart LLP J.T. Whitehead Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leroy Terrell Hunter, May 29, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-108 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff. Judge Trial Court Cause No. 82D03-1802-MR-1106
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 1 of 7 [1] Leroy Terrell Hunter appeals his sentence for voluntary manslaughter as a level
2 felony enhanced by his possession of a firearm. He raises one issue which we
revise and restate as whether his sentence is inappropriate in light of the nature
of the offense and his character. We affirm.
Facts and Procedural History
[2] On November 10, 2017, Dion Banks introduced Donald Xavier Freels to
Carolyn Butler whom Banks knew sold synthetic cannabinoids or “Katey,” as
well as methamphetamine and marijuana. Appellant’s Appendix Volume II at
53. Freels and Butler made plans for a narcotics transaction. Hunter and
Zachery Hunter (“Zachery”) accompanied Butler when she went to meet
Freels.
[3] Freels asked to see the narcotics, and Butler handed him methamphetamine
and marijuana. Freels began to weigh the narcotics with his own scale. Butler
heard Freels say “what are you two n----- on,” and she heard gunshots
immediately after. Id. at 55. She saw a muzzle flash in the rearview mirror
coming from the gun that Hunter was firing in Freels’s direction. Freels was
shot multiple times, and Hunter and Zachery loaded his body into the back seat
of Butler’s vehicle and told her to drive. Butler drove to the end of an access
road, and Hunter and Zachery removed Freels’s body and “dumped him like
trash.” Id. Hunter and Zachery looked in Freels’s pockets and found he did not
have any money. An autopsy revealed that Freels was shot seven times
including three shots to his head and four to his upper and lower back and that
two different calibers of bullets were used in the shooting. Butler’s sister later Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 2 of 7 indicated to police that she had heard Hunter say that Freels pulled out a gun
and attempted to rob Butler.
[4] On February 13, 2018, the State charged Hunter with murder and alleged that
he was eligible for a sentencing enhancement for committing a felony offense
while a member of a criminal organization as well as for committing a felony
offense while using a firearm.
[5] On November 14, 2018, the court held a hearing at which the parties indicated
that Hunter would plead guilty to voluntary manslaughter as a level 2 felony
and admit the firearm enhancement, and the court would sentence him to
between twenty and forty years. On December 14, 2018, the court held a
hearing, and Hunter pled guilty pursuant to the plea agreement. Hunter did not
present evidence, but his counsel argued that he had no prior felony history, the
crime was the result of circumstances unlikely to recur, he is unlikely to commit
another crime, Freels either induced or facilitated the offense, and his
incarceration would result in undue hardship on his three children. 1 Hunter’s
counsel asked for a sentence of fifteen years enhanced by eight years for the
firearm enhancement. The prosecutor asked for a sentence of forty years.
1 The presentence investigation report states that Hunter had zero dependent children. At sentencing, Hunter’s counsel stated: “Judge, we went through the presentence in the back and everything appears to be accurate. He did not indicate any changes and I did not see any going through it as well.” Transcript Volume II at 13.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 3 of 7 [6] On December 19, 2018, the court continued the hearing, accepted the plea
agreement, found Hunter’s criminal history and the nature and circumstances
of the offense surrounding the killing as aggravators, and sentenced him to
twenty years for voluntary manslaughter enhanced by twenty years on the
firearm enhancement for an aggregate sentence of forty years.
Discussion
[7] The issue is whether Hunter’s sentence is inappropriate in light of the nature of
the offense and the character of the offender. Hunter contends that Freels’s
death and the use of a firearm were already accounted for in the conviction and
that he was not one of the main proponents or planners involved in the drug
deal. He argues that Freels was actually trying to rob Butler, that he has led a
law-abiding life for a substantial period of time, he is likely to respond
appropriately to probation or short-term imprisonment, he is unlikely to
commit another crime, his imprisonment will result in undue hardship to his
three children, and he accepted responsibility for his crime.
[8] The State argues that the facts surrounding the crime and Hunter’s criminal
history were valid considerations and that the facts surrounding the crime
undermine and contradict Hunter’s alleged mitigating circumstances. It asserts
that the fact that Freels was shot in the back completely undermines any claims
that he acted in a way that necessitated the shooting.
[9] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 4 of 7 sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[10] Ind. Code § 35-50-2-4.5 provides that “[a] person who commits a Level 2 felony
shall be imprisoned for a fixed term of between ten (10) and thirty (30) years,
with the advisory sentence being seventeen and one-half (17 ½) years.” Ind.
Code § 35-50-2-11(g) provides that if the court finds that “the person knowingly
or intentionally used a firearm in the commission of the offense under
subsection (d), the court may sentence the person to an additional fixed term of
imprisonment of between five (5) years and twenty (20) years.”
[11] Our review of the nature of the offense reveals that Hunter accompanied Butler
who had sold synthetic cannabinoids, methamphetamine, and marijuana, to a
narcotics transaction. He fired a gun in Freels’s direction, and Freels was shot
seven times including three shots to his head and four to his upper and lower
back. He dumped Freels’s body like trash and looked in his pockets.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 29 2019, 10:33 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Bradley Keffer Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart LLP J.T. Whitehead Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leroy Terrell Hunter, May 29, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-108 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff. Judge Trial Court Cause No. 82D03-1802-MR-1106
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 1 of 7 [1] Leroy Terrell Hunter appeals his sentence for voluntary manslaughter as a level
2 felony enhanced by his possession of a firearm. He raises one issue which we
revise and restate as whether his sentence is inappropriate in light of the nature
of the offense and his character. We affirm.
Facts and Procedural History
[2] On November 10, 2017, Dion Banks introduced Donald Xavier Freels to
Carolyn Butler whom Banks knew sold synthetic cannabinoids or “Katey,” as
well as methamphetamine and marijuana. Appellant’s Appendix Volume II at
53. Freels and Butler made plans for a narcotics transaction. Hunter and
Zachery Hunter (“Zachery”) accompanied Butler when she went to meet
Freels.
[3] Freels asked to see the narcotics, and Butler handed him methamphetamine
and marijuana. Freels began to weigh the narcotics with his own scale. Butler
heard Freels say “what are you two n----- on,” and she heard gunshots
immediately after. Id. at 55. She saw a muzzle flash in the rearview mirror
coming from the gun that Hunter was firing in Freels’s direction. Freels was
shot multiple times, and Hunter and Zachery loaded his body into the back seat
of Butler’s vehicle and told her to drive. Butler drove to the end of an access
road, and Hunter and Zachery removed Freels’s body and “dumped him like
trash.” Id. Hunter and Zachery looked in Freels’s pockets and found he did not
have any money. An autopsy revealed that Freels was shot seven times
including three shots to his head and four to his upper and lower back and that
two different calibers of bullets were used in the shooting. Butler’s sister later Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 2 of 7 indicated to police that she had heard Hunter say that Freels pulled out a gun
and attempted to rob Butler.
[4] On February 13, 2018, the State charged Hunter with murder and alleged that
he was eligible for a sentencing enhancement for committing a felony offense
while a member of a criminal organization as well as for committing a felony
offense while using a firearm.
[5] On November 14, 2018, the court held a hearing at which the parties indicated
that Hunter would plead guilty to voluntary manslaughter as a level 2 felony
and admit the firearm enhancement, and the court would sentence him to
between twenty and forty years. On December 14, 2018, the court held a
hearing, and Hunter pled guilty pursuant to the plea agreement. Hunter did not
present evidence, but his counsel argued that he had no prior felony history, the
crime was the result of circumstances unlikely to recur, he is unlikely to commit
another crime, Freels either induced or facilitated the offense, and his
incarceration would result in undue hardship on his three children. 1 Hunter’s
counsel asked for a sentence of fifteen years enhanced by eight years for the
firearm enhancement. The prosecutor asked for a sentence of forty years.
1 The presentence investigation report states that Hunter had zero dependent children. At sentencing, Hunter’s counsel stated: “Judge, we went through the presentence in the back and everything appears to be accurate. He did not indicate any changes and I did not see any going through it as well.” Transcript Volume II at 13.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 3 of 7 [6] On December 19, 2018, the court continued the hearing, accepted the plea
agreement, found Hunter’s criminal history and the nature and circumstances
of the offense surrounding the killing as aggravators, and sentenced him to
twenty years for voluntary manslaughter enhanced by twenty years on the
firearm enhancement for an aggregate sentence of forty years.
Discussion
[7] The issue is whether Hunter’s sentence is inappropriate in light of the nature of
the offense and the character of the offender. Hunter contends that Freels’s
death and the use of a firearm were already accounted for in the conviction and
that he was not one of the main proponents or planners involved in the drug
deal. He argues that Freels was actually trying to rob Butler, that he has led a
law-abiding life for a substantial period of time, he is likely to respond
appropriately to probation or short-term imprisonment, he is unlikely to
commit another crime, his imprisonment will result in undue hardship to his
three children, and he accepted responsibility for his crime.
[8] The State argues that the facts surrounding the crime and Hunter’s criminal
history were valid considerations and that the facts surrounding the crime
undermine and contradict Hunter’s alleged mitigating circumstances. It asserts
that the fact that Freels was shot in the back completely undermines any claims
that he acted in a way that necessitated the shooting.
[9] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 4 of 7 sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[10] Ind. Code § 35-50-2-4.5 provides that “[a] person who commits a Level 2 felony
shall be imprisoned for a fixed term of between ten (10) and thirty (30) years,
with the advisory sentence being seventeen and one-half (17 ½) years.” Ind.
Code § 35-50-2-11(g) provides that if the court finds that “the person knowingly
or intentionally used a firearm in the commission of the offense under
subsection (d), the court may sentence the person to an additional fixed term of
imprisonment of between five (5) years and twenty (20) years.”
[11] Our review of the nature of the offense reveals that Hunter accompanied Butler
who had sold synthetic cannabinoids, methamphetamine, and marijuana, to a
narcotics transaction. He fired a gun in Freels’s direction, and Freels was shot
seven times including three shots to his head and four to his upper and lower
back. He dumped Freels’s body like trash and looked in his pockets.
[12] Our review of the character of the offender reveals that Hunter pled guilty to
voluntary manslaughter as a level 2 felony and a firearm enhancement after he
was charged with murder and two sentencing enhancements. His criminal
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 5 of 7 history includes convictions for residential entry, 2 reckless driving and public
intoxication as class B misdemeanors, and operating a motor vehicle without
ever having received a license as a class C misdemeanor. 3 The presentence
investigation report (“PSI”) reveals that Hunter was charged with false
informing and public intoxication as a class B misdemeanor and received “12
days VCJ.” 4 Appellant’s Appendix Volume II at 46. It also lists a charge of
alcohol intoxication in a public place with a sentencing date of March 13, 2008,
but states: “No disposition available.” Id. In 2008, Hunter’s probation was
revoked. The PSI indicates that his overall risk assessment score places him in
the high risk to reoffend category. After due consideration, we conclude that
Hunter has not sustained his burden of establishing that his sentence is
inappropriate in light of the nature of the offense and his character. 5
[13] For the foregoing reasons, we affirm Hunter’s sentence.
2 The entry in the chronological case summary related to residential entry lists an offense date of May 14, 2003, and a sentencing date of October 18, 2007. 3 The entry for reckless driving, public intoxication, and operating a motor vehicle without having received a license lists an offense date of April 14, 2003, and a sentencing date of September 26, 2007. 4 The entry for these offenses lists an offense date of October 11, 2008, and a sentencing date of November 22, 2017. 5 To the extent Hunter argues that the court abused its discretion in sentencing him by failing to consider certain mitigators, we need not address this issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 6 of 7 [14] Affirmed.
May, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019 Page 7 of 7