MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 22 2020, 10:04 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.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE P. Jeffrey Schlesinger Steven J. Hosler Office of the Public Defender Deputy Attorney General Appellate Division Indianapolis, Indiana Crown Point, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marquise Marcel Harvey, May 22, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-12 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Murray, Appellee-Plaintiff. Judge Trial Court Cause No. 45G02-1807-F2-20
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 1 of 7 Case Summary [1] Marquise Marcel Harvey (“Harvey”) pled guilty to one count of Robbery, as a
Level 5 felony,1 and was sentenced to three years imprisonment. On appeal, he
challenges the sentence, contending that the trial court abused its sentencing
discretion and that his sentence is inappropriate. We affirm.
Facts and Procedural History [2] On June 30, 2018, Trace Howard (“Howard”) purchased a meal for Harvey,
who was a stranger to Howard. Harvey rewarded Howard’s generosity by
striking him in the head and stealing Howard’s wallet and cellular phone.
[3] On July 3, 2018, the State filed several charges against Harvey, related to his
conduct against Howard, including a charge of Robbery, as a Level 2 felony.
The State later alleged Harvey to be a habitual offender. As a result of plea
negotiations between the State and Harvey, the State filed an amended
Information, charging Harvey with Robbery, as a Level 5 felony. Harvey pled
guilty to that charge. On December 2, 2019, he was sentenced to three years
imprisonment, which is the advisory sentence for a Level 5 felony2 but the
maximum sentence permitted by the plea agreement. Harvey now appeals.
1 Ind. Code § 35-42-5-1. 2 See I.C. § 35-50-2-6, providing that a person convicted of a Level 5 felony faces a sentence of one to six years, with three years as the advisory sentence.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 2 of 7 Discussion and Decision Abuse of Discretion [4] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). So long as the sentence is within the statutory range, the trial
court may impose it without regard to the existence of aggravating or mitigating
factors. Id. at 489. However, if the trial court does find the existence of
aggravating or mitigating factors, it must give a statement of its reasons for
selecting the sentence it imposes. Id. at 490. The relative weight or value
assignable to reasons properly found, or those which should have been found, is
not subject to review for abuse of discretion. Id.
[5] An abuse of discretion will be found where the decision is clearly against the
logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial
court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[6] Here, the trial court entered a sentencing statement recognizing four
aggravators: the severity of the victim’s beating, Harvey’s criminal history, his
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 3 of 7 violation of probation, and his pending criminal charge. The trial court
recognized a single mitigator, Harvey’s decision to plead guilty, thereby
preserving judicial resources and taxpayer funds. Harvey now argues that the
trial court abused its discretion by failing to include as mitigating circumstances
his difficult childhood, his youth (twenty years of age), the hardship his
imprisonment would cause his aunt, and his maturation during his most recent
incarceration.
[7] “When a defendant alleges that the trial court failed to identify or find a
mitigating circumstance, the defendant must establish that the mitigating
evidence is both significant and clearly supported by the record.” Corbett v.
State, 764 N.E.2d 622, 630 (Ind. 2002). “Age is neither a statutory nor a per se
mitigating factor.” Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). As for
Harvey’s background, his aunt, Alice Locket (“Locket”), testified that she had
raised Harvey after his parents abandoned him in infancy. According to
Locket, Harvey had a good childhood, one free from abuse and neglect. She
testified that she had undergone cancer treatment in 2011 and Harvey’s
assistance had been invaluable. Locket also opined that Harvey had benefited
from recent rehabilitative efforts, describing him as “mature, rational, and
compassionate.” (Tr. Vol. III, pg. 8.) Locket’s testimony did not establish that
Harvey had endured abuse or suggest that he provided necessary assistance to a
dependent on an ongoing basis. In closing, Harvey’s attorney argued that he
had recently exhibited increased signs of maturity, yet he conceded that Harvey
had been unable to comply with conditions of probation in the past.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 4 of 7 [8] On this record, we cannot say that the trial court overlooked evidence of
mitigation that is “both significant and clearly supported by the record.”
Corbett, 764 N.E.2d at 630. Harvey has not demonstrated an abuse of the trial
court’s sentencing discretion.
Appropriateness [9] Harvey received the advisory sentence for his crime, see Ind. Code § 35-50-2-6,
but argues that it is too severe, due to his youth, background, recent benefits
from rehabilitation, and his family obligations. We may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). When determining whether a sentence is
inappropriate, we acknowledge that the advisory sentence “is the starting point
the Legislature has selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The
defendant has the burden of persuading us that his sentence is inappropriate.
Id. at 1080.
[10] The principal role of a Rule 7(B) review “should be to attempt to leaven the
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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 22 2020, 10:04 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.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE P. Jeffrey Schlesinger Steven J. Hosler Office of the Public Defender Deputy Attorney General Appellate Division Indianapolis, Indiana Crown Point, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marquise Marcel Harvey, May 22, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-12 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Murray, Appellee-Plaintiff. Judge Trial Court Cause No. 45G02-1807-F2-20
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 1 of 7 Case Summary [1] Marquise Marcel Harvey (“Harvey”) pled guilty to one count of Robbery, as a
Level 5 felony,1 and was sentenced to three years imprisonment. On appeal, he
challenges the sentence, contending that the trial court abused its sentencing
discretion and that his sentence is inappropriate. We affirm.
Facts and Procedural History [2] On June 30, 2018, Trace Howard (“Howard”) purchased a meal for Harvey,
who was a stranger to Howard. Harvey rewarded Howard’s generosity by
striking him in the head and stealing Howard’s wallet and cellular phone.
[3] On July 3, 2018, the State filed several charges against Harvey, related to his
conduct against Howard, including a charge of Robbery, as a Level 2 felony.
The State later alleged Harvey to be a habitual offender. As a result of plea
negotiations between the State and Harvey, the State filed an amended
Information, charging Harvey with Robbery, as a Level 5 felony. Harvey pled
guilty to that charge. On December 2, 2019, he was sentenced to three years
imprisonment, which is the advisory sentence for a Level 5 felony2 but the
maximum sentence permitted by the plea agreement. Harvey now appeals.
1 Ind. Code § 35-42-5-1. 2 See I.C. § 35-50-2-6, providing that a person convicted of a Level 5 felony faces a sentence of one to six years, with three years as the advisory sentence.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 2 of 7 Discussion and Decision Abuse of Discretion [4] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). So long as the sentence is within the statutory range, the trial
court may impose it without regard to the existence of aggravating or mitigating
factors. Id. at 489. However, if the trial court does find the existence of
aggravating or mitigating factors, it must give a statement of its reasons for
selecting the sentence it imposes. Id. at 490. The relative weight or value
assignable to reasons properly found, or those which should have been found, is
not subject to review for abuse of discretion. Id.
[5] An abuse of discretion will be found where the decision is clearly against the
logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial
court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[6] Here, the trial court entered a sentencing statement recognizing four
aggravators: the severity of the victim’s beating, Harvey’s criminal history, his
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 3 of 7 violation of probation, and his pending criminal charge. The trial court
recognized a single mitigator, Harvey’s decision to plead guilty, thereby
preserving judicial resources and taxpayer funds. Harvey now argues that the
trial court abused its discretion by failing to include as mitigating circumstances
his difficult childhood, his youth (twenty years of age), the hardship his
imprisonment would cause his aunt, and his maturation during his most recent
incarceration.
[7] “When a defendant alleges that the trial court failed to identify or find a
mitigating circumstance, the defendant must establish that the mitigating
evidence is both significant and clearly supported by the record.” Corbett v.
State, 764 N.E.2d 622, 630 (Ind. 2002). “Age is neither a statutory nor a per se
mitigating factor.” Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). As for
Harvey’s background, his aunt, Alice Locket (“Locket”), testified that she had
raised Harvey after his parents abandoned him in infancy. According to
Locket, Harvey had a good childhood, one free from abuse and neglect. She
testified that she had undergone cancer treatment in 2011 and Harvey’s
assistance had been invaluable. Locket also opined that Harvey had benefited
from recent rehabilitative efforts, describing him as “mature, rational, and
compassionate.” (Tr. Vol. III, pg. 8.) Locket’s testimony did not establish that
Harvey had endured abuse or suggest that he provided necessary assistance to a
dependent on an ongoing basis. In closing, Harvey’s attorney argued that he
had recently exhibited increased signs of maturity, yet he conceded that Harvey
had been unable to comply with conditions of probation in the past.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 4 of 7 [8] On this record, we cannot say that the trial court overlooked evidence of
mitigation that is “both significant and clearly supported by the record.”
Corbett, 764 N.E.2d at 630. Harvey has not demonstrated an abuse of the trial
court’s sentencing discretion.
Appropriateness [9] Harvey received the advisory sentence for his crime, see Ind. Code § 35-50-2-6,
but argues that it is too severe, due to his youth, background, recent benefits
from rehabilitation, and his family obligations. We may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). When determining whether a sentence is
inappropriate, we acknowledge that the advisory sentence “is the starting point
the Legislature has selected as an appropriate sentence for the crime
committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The
defendant has the burden of persuading us that his sentence is inappropriate.
Id. at 1080.
[10] The principal role of a Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We need not determine whether another sentence is more appropriate
but rather whether the sentence imposed is inappropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 5 of 7 [11] The nature of Harvey’s robbery of Howard is particularly heinous. Harvey
gained access to his victim because he had purchased food for Harvey. Harvey
struck Howard in his head in order to obtain his wallet and cellular phone. At
the sentencing hearing, the State submitted documentary evidence suggesting
that Howard had been seriously injured as a result of blows to his head.
Howard testified that, since the beating, he suffered more frequent seizures and
was anxious and lacked trust in others.
[12] As for Harvey’s character, there was evidence that he had been kind to his aunt.
His behavior as a citizen was not likewise becoming. In 2014, Harvey was
twice adjudicated a juvenile delinquent. In 2016, he was convicted of illegal
possession of alcohol and twice convicted of criminal trespass, all
misdemeanors. In 2017, he was convicted of criminal confinement, as a Level
5 felony, and failure to return to lawful detention, a Level 6 felony. He had
violated probation on multiple occasions and was, at the time of sentencing,
facing an additional charge for conversion.
[13] In sum, there is nothing known to us about the nature of the offense or the
character of the offender that militates toward a sentence less than the advisory
sentence imposed upon Harvey.
Conclusion [14] Harvey has not shown an abuse of the trial court’s sentencing discretion. His
sentence is not inappropriate.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 6 of 7 [15] Affirmed.
Crone, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 7 of 7