Marcus Lamont Weston v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 1, 2019
• Docket: 19A-CR-1023
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 01 2019, 8:32 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Mullins Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Josiah J. Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marcus Lamont Weston, October 1, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1023 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1807-F3-49

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019 Page 1 of 6 Case Summary [1] Marcus Lamont Weston (“Weston”) pleaded guilty to Aggravated Battery, as a

Level 3 felony,1 for which he received a sentence of thirteen years

imprisonment. He asks that, pursuant to Indiana Appellate Rule 7(B), we

revise his sentence as inappropriate and that we remand for clarification as to

whether his sentence should include a recommendation for therapeutic

community participation. We affirm his sentence term but remand for

clarification.

Facts and Procedural History [2] On July 5, 2018, Weston encountered his friend, Joseph Holder (“Holder”),

walking with Laketa Leonard (“Leonard”), whom Weston regarded as his

girlfriend. Weston slapped Leonard and stabbed Holder in the chest, using a

pocketknife. Weston took $187.00 from Holder’s pants pocket and threatened

to “put thirty rounds” into Holder. (App. Vol. II, pg. 12.) Holder was able to

stumble away, but he fell and hit his head on rocks and a train track.

Bystanders assisted Holder to a hospital, where he was treated for his injuries.

Holder identified Weston as his assailant and police officers located Weston the

following day; however, Weston provided a fictitious name.

1 Ind. Code § 35-42-2-1.5.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019 Page 2 of 6 [3] On July 7, 2018, the State charged Weston with aggravated battery and

robbery. The charges were subsequently amended to add two counts of robbery

and one count of false informing. On February 21, 2019, Weston pleaded

guilty to aggravated battery and the remaining charges were dismissed. An

unrelated drug dealing charge was also dismissed as part of Weston’s plea deal

with the State.

[4] On April 4, 2019, the trial court imposed upon Weston a sentence of thirteen

years imprisonment, with none suspended. He now appeals.

Discussion and Decision Appropriateness of Sentence [5] The sentencing range for a Level 3 felony is between three years and sixteen

years, with nine years as the advisory sentence. I.C. § 35-50-2-5. Finding

Weston’s criminal history and violation of parole to be aggravators, the trial

court sentenced him to four years above the advisory sentence.

[6] Under Indiana Appellate Rule 7(B), this “Court 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.” In performing our review, we assess “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 principal role of such review is

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019 Page 3 of 6 an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve

our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d

157, 165 (Ind. 2017). The “considerable deference” given to the trial court’s

sentencing judgment “should prevail unless overcome by compelling evidence

portraying in a positive light the nature of the offense (such as accompanied by

restraint, regard, and lack of brutality) and the defendant’s character (such as

substantial virtuous traits or persistent examples of good character).” Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015) (citing Cardwell, 895 N.E.2d at 1222).

[7] The nature of the offense involves the details and circumstances of the crime

and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.

2017). Weston, in an act of revenge, stabbed his friend in the chest with a

pocketknife. As Weston observes, Holder was able to walk away and seek

medical attention. Notably, however, Weston did not assist Holder; rather,

Weston rifled through Holder’s pockets and took his cash. He also verbally

threatened to shoot Holder. The nature of the offense does not suggest that

sentence revision is warranted.

[8] The character of the offender is found in what courts learn of the offender’s life

and conduct. Id. Weston asserts that the “negative aspects” of his character are

largely “born of an untreated addiction to alcohol.” Appellant’s Brief at 11.

Weston has a significant criminal history, consisting of seven felony convictions

and thirteen misdemeanor convictions. He was on parole from the State of

Wisconsin when he committed the instant offense. Thus, he has been afforded

rehabilitative services in the past, without success. His decision to plead guilty

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019 Page 4 of 6 indicates some acceptance of responsibility for his actions; however, he also

received a significant benefit when other charges were dismissed. What we

have learned of his character does not militate toward a lesser sentence.

[9] Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not

warrant appellate revision.

Remand for Clarification [10] At the sentencing hearing, Weston admitted to an alcohol addiction and

requested placement in a purposeful incarceration program or, alternatively, a

therapeutic community. The trial court briefly discussed “time cuts” and

addressed Weston: “I don’t have any problem with you getting into whatever

programs you want to get into, but that’s up to you.” (Tr. Vol. II, pg. 34.) At

the conclusion of the oral sentencing statement, the trial court again addressed

Weston: “I’ll put in the sentencing order, Mr. Weston, to try to help you out a

little bit, that I will recommend that you get yourself into a therapeutic

community, but that’s up to you. You need to work at it. Get your time cuts.”

Id. at 36. However, neither the written sentencing order nor the abstract of

judgment included a recommendation for Weston’s placement in the Indiana

Department of Correction Therapeutic Community. The abstract of judgment

included a box with a notation that Weston was not a participant in a

purposeful incarceration program.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019 Page 5 of 6 [11] When the trial court intends to make a placement recommendation, this should

be reflected in the abstract of judgment. See Hogan v. State, 95 N.E.3d 181, 184-

85 (Ind. Ct. App. 2018). When, as here, we are confronted with a conflict

between the oral sentencing statement and the written sentencing statement, we

may remand for clarification. McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007).

We remand with instructions for the trial court to clarify whether it intended to

make a placement recommendation for Weston and, if so, to correct the

judgment of conviction and the abstract of judgment.

Conclusion [12] The thirteen-year sentence imposed upon Weston is not inappropriate. We

remand for clarification as to whether the trial court intended to include a

recommendation regarding Weston’s therapeutic community participation and,

if so, for correction of the sentencing order and abstract of judgment.

[13] Affirmed and remanded for clarification.

Najam, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019 Page 6 of 6