Martel D. Cross v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 25, 2013
• Docket: 45A05-1207-CR-369
• Status: Unpublished

Opinion

FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Feb 25 2013, 9:44 am any court except for the purpose of establishing the defense of res judicata, CLERK collateral estoppel, or the law of the case. of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER GREGORY F. ZOELLER Public Defender Attorney General of Indiana Crown Point, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

MARTEL D. CROSS, ) ) Appellant-Defendant, ) ) vs. ) No. 45A05-1207-CR-369 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No. 45G01-1101-MR-1

February 25, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

Martel D. Cross (“Cross”) pleaded guilty to Voluntary Manslaughter, as a Class A

felony.1 He was sentenced to thirty years imprisonment. Cross now appeals, raising for our

review the sole issue of whether the trial court abused its discretion when, in sentencing him,

it did not find certain facts to be mitigators.

We affirm.

Facts and Procedural History

On December 30, 2010, Cross shot and killed Cory Toddle with a .25-caliber handgun

at a gas station in Lake County.

On January 4, 2011, the State charged Cross with Murder, a felony.

On May 11, 2012, Cross and the State entered into a plea agreement, whereby the

State agreed to dismiss the charge of Murder, and Cross agreed to plead guilty to Voluntary

Manslaughter. The parties stipulated to the relevant facts and agreed that the parties would

argue the length of Cross’s sentence before the court, but that in no case would Cross be

sentenced to more than thirty-five years imprisonment. The trial court accepted the plea

agreement the same day.

On June 14, 2012, a sentencing hearing was conducted. At the conclusion of the

hearing, the trial court sentenced Cross to thirty years imprisonment.

This appeal ensued.

Discussion and Decision

1 Ind. Code § 35-42-1-3.

2 Cross appeals his sentence, contending that the trial court abused its discretion when it

did not find the existence of certain facts as mitigators, and requests that we reverse the

sentencing order and remand for resentencing.

“So long as the sentence is within the statutory range, it is subject to review only for

abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other

grounds, 875 N.E.2d 218 (Ind. 2007). This includes the finding of an aggravating

circumstance and the omission of finding proffered mitigating circumstances. Id. at 490-91.

When imposing a sentence for a felony, the trial court must enter “a sentencing statement that

includes a reasonably detailed recitation of its reasons for imposing a particular sentence.”

Id. at 491. Even where a trial court abuses its discretion in failing to find certain mitigators,

however, where that error is harmless because the court would have imposed the same

sentence, we will not reverse. Deloney v. State, 938 N.E.2d 724, 733 (Ind. Ct. App. 2010),

trans. denied.

Here, Cross was convicted of Voluntary Manslaughter, as a Class A felony. That

offense carries a sentencing range of twenty to fifty years imprisonment, with an advisory

sentence of thirty years. I.C. § 35-50-2-4. Here, the plea agreement limited the trial court’s

sentencing discretion to between twenty and thirty-five years imprisonment. Despite finding

the existence of several aggravating factors, the trial court sentenced Cross to the statutory

advisory term of thirty years imprisonment and found no reason for deviation downward.

Our review of the record does not indicate that the trial court abused its discretion in

rejecting Cross’s proffered mitigators, nor that, had the trial court taken those factors into

3 account, it would have reached a different result.

Cross proffered mitigators of his young age, difficult childhood, and expression of

remorse. As to the last of these, we observe that the trial court apparently gave some

minimal weight to Cross’s expression of remorse, saying that it could only hope his remorse

was sincere. As to Cross’s young age (twenty-three years old at the time of sentencing) and

family circumstances, we first note that “‘[a]ge is neither a statutory nor a per se mitigating

factor.’” Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004) (quoting Monegan v.

State, 756 N.E.2d 499, 504 (Ind. 2001)). The trial court observed that Cross had a substantial

criminal history, including parole and probation violations stretching to his late teens. The

trial court also observed that Cross determined as a teenager to leave the care of his paternal

aunt, who ensured Cross’s attendance at school and proper conduct, for care with his less-

restrictive maternal grandmother, where Cross and numerous relatives engaged in drug- and

gang-related activity. We thus cannot conclude that the trial court abused its discretion when

it did not find Cross’s proffered mitigators of his young age and difficult childhood.

We therefore affirm the trial court’s imposition of a thirty-year sentence.

Affirmed.

VAIDIK, J., and BROWN, J., concur.