MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 04 2015, 8:39 am this Memorandum Decision shall not be 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 Gregory L. Fumarolo Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Jovan Lindsey, December 4, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1503-CR-95 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1409-F5-46
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 1 of 7 Case Summary and Issue [1] Following a guilty plea, Marcus Lindsey was convicted of assisting a criminal, a
Level 5 felony. The trial court sentenced Lindsey to four years executed in the
Indiana Department of Correction. Lindsey appeals his sentence, raising the
sole issue of whether his sentence is inappropriate in light of the nature of the
offense and his character. Concluding his sentence is not inappropriate, we
affirm.
Facts and Procedural History [2] This case arises from the murder of John D. Holman on the evening of
September 8, 2014. The probable cause affidavit reflects that on the night in
question, Lindsey, Charles Benson, and Marcus Thomas were traveling on Eby
Avenue in Fort Wayne, Indiana, in a black Chevrolet Tahoe driven by Thomas.
They passed Holman, whom Thomas had put a “Hit” on prior to this incident.
Appendix of Appellant at 10. Thomas placed a “Hit” on Holman in retaliation
for a fight in a bar the night before. Id. The men also believed Holman was
responsible for breaking into Thomas’s residence and stealing money and drugs.
Shortly after passing Holman’s vehicle, Thomas stopped the Tahoe and began
shooting at Holman’s vehicle. Benson exited the Tahoe and also began
shooting at Holman’s vehicle. Benson then ran up to the driver’s side window
and shot “point blank” at Holman. Id. Lindsey denied shooting at Holman or
his vehicle.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 2 of 7 [3] After the shooting, Lindsey and Benson drove the Tahoe to a local park and
cleaned the interior of the vehicle with rags and bleach. Lindsey then drove the
Tahoe to a nearby lot where he and Benson asked a friend to remove property
from the vehicle, including two handguns and a longer firearm, and to give
them a ride. Benson became irate after receiving a text message that Holman
was still in critical condition and had not yet died. Benson stated to his friend
that he “unloaded” on Holman and watched his legs twitch as he shot him. Id.
Holman died later that evening from the gunshot wounds.
[4] The State charged Lindsey with assisting a criminal for harboring, concealing,
or otherwise assisting a person who has committed a crime, with the intent to
hinder the apprehension or punishment of that person. Ind. Code § 35-44.1-2-
5(a). Assisting a criminal is a Level 5 felony if the person assisted has
committed murder. Ind. Code § 35-44.1-2-5(a)(2). Lindsey entered a plea of
guilty to assisting a criminal, as charged, without the benefit of a plea
agreement. At sentencing, the trial court found as mitigating factors Lindsey’s
remorse, apology to Holman’s family, and the fact Lindsey pleaded guilty. The
trial court found as aggravating factors Lindsey’s criminal history, which
included three adjudications as a juvenile and two misdemeanor convictions as
an adult, and the nature and circumstances of the crime as reflected in the
probable cause affidavit. The trial court sentenced Lindsey to four years
executed in the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 3 of 7 Discussion and Decision [5] Lindsey contends his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Rule of Appellate Procedure 7(B) gives
appellate courts the authority to revise a defendant’s sentence 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.” The principal role of Appellate Rule 7(B) review is to “leaven the
outliers,” not to determine the “correct” sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015) (quotation omitted). The question is not whether another
sentence is more appropriate; the question is whether the sentence imposed is
inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
“[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). The appellant
bears the burden of persuading us that his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[6] With regard to the “nature of the offense” portion of our review, the advisory
sentence is the starting point the legislature has selected as an appropriate
sentence for the crime committed. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218. Lindsey was convicted of assisting a
criminal for assisting Benson with the intent to hinder his apprehension or
punishment. Generally, assisting a criminal is a Class A misdemeanor;
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 4 of 7 however, if the person assisted has committed murder, the offense is elevated to
a Level 5 felony. Ind. Code § 35-44.1-2-5(a)(2). The statutory sentencing range
for a Level 5 felony is one to six years, with an advisory sentence of three years.
Ind. Code § 35-50-2-6(b). The trial court imposed a sentence of four years
[7] “The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation in it.” Washington
v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Here, our
review of the nature of the offense reveals that Lindsey’s actions were not
simply “limited to the wiping down of a vehicle after the murder occurred,” as
he argues. Brief of Appellant at 13.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 04 2015, 8:39 am this Memorandum Decision shall not be 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 Gregory L. Fumarolo Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Jovan Lindsey, December 4, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1503-CR-95 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1409-F5-46
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 1 of 7 Case Summary and Issue [1] Following a guilty plea, Marcus Lindsey was convicted of assisting a criminal, a
Level 5 felony. The trial court sentenced Lindsey to four years executed in the
Indiana Department of Correction. Lindsey appeals his sentence, raising the
sole issue of whether his sentence is inappropriate in light of the nature of the
offense and his character. Concluding his sentence is not inappropriate, we
affirm.
Facts and Procedural History [2] This case arises from the murder of John D. Holman on the evening of
September 8, 2014. The probable cause affidavit reflects that on the night in
question, Lindsey, Charles Benson, and Marcus Thomas were traveling on Eby
Avenue in Fort Wayne, Indiana, in a black Chevrolet Tahoe driven by Thomas.
They passed Holman, whom Thomas had put a “Hit” on prior to this incident.
Appendix of Appellant at 10. Thomas placed a “Hit” on Holman in retaliation
for a fight in a bar the night before. Id. The men also believed Holman was
responsible for breaking into Thomas’s residence and stealing money and drugs.
Shortly after passing Holman’s vehicle, Thomas stopped the Tahoe and began
shooting at Holman’s vehicle. Benson exited the Tahoe and also began
shooting at Holman’s vehicle. Benson then ran up to the driver’s side window
and shot “point blank” at Holman. Id. Lindsey denied shooting at Holman or
his vehicle.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 2 of 7 [3] After the shooting, Lindsey and Benson drove the Tahoe to a local park and
cleaned the interior of the vehicle with rags and bleach. Lindsey then drove the
Tahoe to a nearby lot where he and Benson asked a friend to remove property
from the vehicle, including two handguns and a longer firearm, and to give
them a ride. Benson became irate after receiving a text message that Holman
was still in critical condition and had not yet died. Benson stated to his friend
that he “unloaded” on Holman and watched his legs twitch as he shot him. Id.
Holman died later that evening from the gunshot wounds.
[4] The State charged Lindsey with assisting a criminal for harboring, concealing,
or otherwise assisting a person who has committed a crime, with the intent to
hinder the apprehension or punishment of that person. Ind. Code § 35-44.1-2-
5(a). Assisting a criminal is a Level 5 felony if the person assisted has
committed murder. Ind. Code § 35-44.1-2-5(a)(2). Lindsey entered a plea of
guilty to assisting a criminal, as charged, without the benefit of a plea
agreement. At sentencing, the trial court found as mitigating factors Lindsey’s
remorse, apology to Holman’s family, and the fact Lindsey pleaded guilty. The
trial court found as aggravating factors Lindsey’s criminal history, which
included three adjudications as a juvenile and two misdemeanor convictions as
an adult, and the nature and circumstances of the crime as reflected in the
probable cause affidavit. The trial court sentenced Lindsey to four years
executed in the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 3 of 7 Discussion and Decision [5] Lindsey contends his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Rule of Appellate Procedure 7(B) gives
appellate courts the authority to revise a defendant’s sentence 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.” The principal role of Appellate Rule 7(B) review is to “leaven the
outliers,” not to determine the “correct” sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015) (quotation omitted). The question is not whether another
sentence is more appropriate; the question is whether the sentence imposed is
inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
“[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). The appellant
bears the burden of persuading us that his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[6] With regard to the “nature of the offense” portion of our review, the advisory
sentence is the starting point the legislature has selected as an appropriate
sentence for the crime committed. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218. Lindsey was convicted of assisting a
criminal for assisting Benson with the intent to hinder his apprehension or
punishment. Generally, assisting a criminal is a Class A misdemeanor;
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 4 of 7 however, if the person assisted has committed murder, the offense is elevated to
a Level 5 felony. Ind. Code § 35-44.1-2-5(a)(2). The statutory sentencing range
for a Level 5 felony is one to six years, with an advisory sentence of three years.
Ind. Code § 35-50-2-6(b). The trial court imposed a sentence of four years
[7] “The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation in it.” Washington
v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Here, our
review of the nature of the offense reveals that Lindsey’s actions were not
simply “limited to the wiping down of a vehicle after the murder occurred,” as
he argues. Brief of Appellant at 13. Lindsey did not first appear on the scene
after the murder occurred; the probable cause affidavit lists Lindsey as an
individual in the Tahoe when the murder occurred. Furthermore, there is no
evidence that Lindsey attempted to dissuade his friends from the violence.
After the shooting, instead of calling the police or attempting to help Holman,
Lindsey helped his associates wipe down and clean the vehicle to destroy
evidence and hinder a murder investigation. After he helped Benson eliminate
evidence, Lindsey asked a friend to remove property from the Tahoe, including
three weapons. This demonstrates a disregard for the law and a threat to the
safety of the community. We cannot say his four-year sentence is inappropriate
in light of the nature of his offense.
[8] The “character of the offender” analysis involves evaluation of the relevant
aggravating and mitigating circumstances and other general considerations.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 5 of 7 Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). At the sentencing
hearing, the trial court found Lindsey’s “juvenile and adult criminal record with
failed efforts at rehabilitation” as an aggravating factor. Sentencing Hearing
Transcript at 19. Although this is Lindsey’s first felony conviction, his criminal
record begins at the age of twelve and spans a period of thirteen years. His
criminal history consists of three juvenile adjudications and two misdemeanor
convictions as an adult. Furthermore, these adjudications and convictions are
accompanied by failed efforts at rehabilitation, as noted by the trial court. The
presentence investigation report reveals at least one instance in which Lindsey’s
probation was extended, and another in which his probation was revoked.
Lindsey has been provided numerous opportunities to comply with the law and
has squandered those opportunities. Lindsey’s criminal history cannot be
ignored. But to the extent Lindsey’s criminal history reflects poorly on his
character, this is offset by his guilty plea and remorse, as acknowledged by the
trial court. Accordingly, our assessment of Lindsey’s character is neutral at best
and does not justify a revision of his sentence.
[9] Finally, Lindsey argues even if the length of the sentence is appropriate, his
placement at the Department of Correction for four years is inappropriate.
Under Appellate Rule 7(B), “[t]he place that a sentence is to be served is an
appropriate focus for application of our review and revise authority.” Biddinger
v. State, 868 N.E.2d 407, 414 (Ind. 2007). But the burden is on the defendant to
persuade the court the location is inappropriate. Id. Here, Lindsey offers
several alternatives that the trial court could have imposed instead of a four-
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 6 of 7 year executed sentence; however, he adds nothing to support why he should be
granted one of these alternatives. Moreover, Lindsey has not demonstrated he
can comply with the terms of a more lenient placement. Lindsey fails to
persuade us that placement in the Department of Correction is inappropriate.
Conclusion [10] After due consideration of the trial court’s decision and our own assessment of
the nature of Lindsey’s offense and his character, we cannot say that Lindsey’s
sentence is inappropriate.
[11] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015 Page 7 of 7