MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 14 2015, 8:31 am 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 Mark A. Bates Gregory F. Zoeller Appellate Public Defender Attorney General of Indiana Lake County Public Defender Richard C. Webster Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Matthew Marcus II, October 14, 2015 Appellant-Defendant, Court of Appeals Case No. 45A03-1407-CR-230 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff. Murray, Judge Trial Court Cause No. 45G02-1011-MR-15
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 1 of 6 [1] Matthew Marcus II pleaded guilty to voluntary manslaughter, 1 a Class A
felony, and was sentenced to thirty-five years executed. He appeals and raises
the following restated issue for our review: whether his sentence was
inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm.
Facts and Procedural History [3] The stipulated facts of the crime establish that, on November 8, 2010, Marcus
was a guest of the victim, Tishwanda Reynolds, at her residence located in Lake
County, Indiana. Marcus attempted to initiate sexual contact with Reynolds,
but she refused his advances. Marcus became angry and strangled her with his
belt and his hands, which caused Reynolds’s death.
[4] The State charged Marcus with murder and later amended the information to
add an additional count of voluntary manslaughter. Marcus and the State
entered into a plea agreement, in which Marcus would plead guilty to Class A
felony voluntary manslaughter, and the State would dismiss the murder charge.
The parties agreed that each party would be free to argue their respective
positions as to the sentence to be imposed, and the sentence was to be capped at
a term of thirty-five years. At the guilty plea hearing, Marcus entered a plea of
1 See Ind. Code § 35-42-1-3.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 2 of 6 guilty to voluntary manslaughter as a Class A felony, and the stipulated facts
were accepted as the factual basis for the plea. The trial court accepted the plea
agreement.
[5] At sentencing, Marcus’s father and his aunt testified on his behalf. Reynolds’s
mother, sister, and cousin testified regarding the impact they had experienced
based on Marcus’s killing of Reynolds. Marcus argued as mitigating factors
that he had no criminal history, he was remorseful, the crime was the result of a
situation unlikely to reoccur, he pleaded guilty and cooperated with the police,
and he called 911 to report his crime. The State argued as aggravating factors
that the crime was brutal in nature as Marcus used both his belt and hands to
strangle the victim, the killing occurred in front of Reynolds’s infant son, and
after the killing, Marcus did not immediately call 911, but rather, called his
family members in Indianapolis.
[6] The trial court found as mitigating factors that Marcus had no criminal history,
he admitted his guilt by pleading guilty and saved the time and expense of a
trial, and he expressed remorse for his crime. The trial court found as
aggravating factors the nature and circumstances of the crime, characterizing
the crime to be cold-blooded and ruthless. The trial court then sentenced
Marcus to thirty-five years executed in the Department of Correction. Marcus
now appeals.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 3 of 6 Discussion and Decision [7] Marcus argues his sentence is inappropriate. Under Indiana Appellate Rule
7(B), “we may revise any sentence authorized by statute if we deem it to be
inappropriate in light of the nature of the offense and the character of the
offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). The
question under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the
defendant’s burden on appeal to persuade the reviewing court that the sentence
imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,
133 (Ind. Ct. App. 2012), trans. denied.
[8] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that
come to light in a given case.” Id. at 1224.
[9] Marcus pleaded guilty to voluntary manslaughter as a Class A felony. A person
who commits a Class A felony shall be imprisoned for a fixed term of between
twenty and fifty years, with the advisory sentence being thirty years. Ind. Code
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 4 of 6 § 35-50-2-4. Here, pursuant to the plea agreement between Marcus and the
State, Marcus agreed that his possible sentenced would be capped at thirty-five
years. At sentencing, the trial court imposed the cap of thirty-five years as
Marcus’s sentence.
[10] As to the nature of the offense, Marcus contends that his sentence is
inappropriate because the nature of the killing did not warrant the sentence
imposed as his ability to reason was “obscured,” and he was not capable of
“acting deliberately.”2 Appellant’s Br. at 9. Here, the nature of the offense is that
Marcus killed Reynolds in her home, where he was a guest, and in the presence
of her infant son. Marcus strangled Reynolds with his belt and with his hands
because she refused him when he tried to initiate sex with her. Choking
Reynolds with both his belt and his hands was more than was necessary to
complete the crime and demonstrates the brutality involved in the crime. This
was a crime that did not happen in an instant and required significant force to
2 We note that, although not argued as an abuse of discretion, Marcus’s argument is interspersed with contentions that the trial court found an “inappropriate aggravator” when it referred to the nature of the offense as “cold blooded” and “ruthless.” Appellant’s Br. at 8, 9, 10. As our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be analyzed separately. See Anglemyer v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 14 2015, 8:31 am 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 Mark A. Bates Gregory F. Zoeller Appellate Public Defender Attorney General of Indiana Lake County Public Defender Richard C. Webster Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Matthew Marcus II, October 14, 2015 Appellant-Defendant, Court of Appeals Case No. 45A03-1407-CR-230 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff. Murray, Judge Trial Court Cause No. 45G02-1011-MR-15
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 1 of 6 [1] Matthew Marcus II pleaded guilty to voluntary manslaughter, 1 a Class A
felony, and was sentenced to thirty-five years executed. He appeals and raises
the following restated issue for our review: whether his sentence was
inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm.
Facts and Procedural History [3] The stipulated facts of the crime establish that, on November 8, 2010, Marcus
was a guest of the victim, Tishwanda Reynolds, at her residence located in Lake
County, Indiana. Marcus attempted to initiate sexual contact with Reynolds,
but she refused his advances. Marcus became angry and strangled her with his
belt and his hands, which caused Reynolds’s death.
[4] The State charged Marcus with murder and later amended the information to
add an additional count of voluntary manslaughter. Marcus and the State
entered into a plea agreement, in which Marcus would plead guilty to Class A
felony voluntary manslaughter, and the State would dismiss the murder charge.
The parties agreed that each party would be free to argue their respective
positions as to the sentence to be imposed, and the sentence was to be capped at
a term of thirty-five years. At the guilty plea hearing, Marcus entered a plea of
1 See Ind. Code § 35-42-1-3.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 2 of 6 guilty to voluntary manslaughter as a Class A felony, and the stipulated facts
were accepted as the factual basis for the plea. The trial court accepted the plea
agreement.
[5] At sentencing, Marcus’s father and his aunt testified on his behalf. Reynolds’s
mother, sister, and cousin testified regarding the impact they had experienced
based on Marcus’s killing of Reynolds. Marcus argued as mitigating factors
that he had no criminal history, he was remorseful, the crime was the result of a
situation unlikely to reoccur, he pleaded guilty and cooperated with the police,
and he called 911 to report his crime. The State argued as aggravating factors
that the crime was brutal in nature as Marcus used both his belt and hands to
strangle the victim, the killing occurred in front of Reynolds’s infant son, and
after the killing, Marcus did not immediately call 911, but rather, called his
family members in Indianapolis.
[6] The trial court found as mitigating factors that Marcus had no criminal history,
he admitted his guilt by pleading guilty and saved the time and expense of a
trial, and he expressed remorse for his crime. The trial court found as
aggravating factors the nature and circumstances of the crime, characterizing
the crime to be cold-blooded and ruthless. The trial court then sentenced
Marcus to thirty-five years executed in the Department of Correction. Marcus
now appeals.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 3 of 6 Discussion and Decision [7] Marcus argues his sentence is inappropriate. Under Indiana Appellate Rule
7(B), “we may revise any sentence authorized by statute if we deem it to be
inappropriate in light of the nature of the offense and the character of the
offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). The
question under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the
defendant’s burden on appeal to persuade the reviewing court that the sentence
imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,
133 (Ind. Ct. App. 2012), trans. denied.
[8] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that
come to light in a given case.” Id. at 1224.
[9] Marcus pleaded guilty to voluntary manslaughter as a Class A felony. A person
who commits a Class A felony shall be imprisoned for a fixed term of between
twenty and fifty years, with the advisory sentence being thirty years. Ind. Code
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 4 of 6 § 35-50-2-4. Here, pursuant to the plea agreement between Marcus and the
State, Marcus agreed that his possible sentenced would be capped at thirty-five
years. At sentencing, the trial court imposed the cap of thirty-five years as
Marcus’s sentence.
[10] As to the nature of the offense, Marcus contends that his sentence is
inappropriate because the nature of the killing did not warrant the sentence
imposed as his ability to reason was “obscured,” and he was not capable of
“acting deliberately.”2 Appellant’s Br. at 9. Here, the nature of the offense is that
Marcus killed Reynolds in her home, where he was a guest, and in the presence
of her infant son. Marcus strangled Reynolds with his belt and with his hands
because she refused him when he tried to initiate sex with her. Choking
Reynolds with both his belt and his hands was more than was necessary to
complete the crime and demonstrates the brutality involved in the crime. This
was a crime that did not happen in an instant and required significant force to
2 We note that, although not argued as an abuse of discretion, Marcus’s argument is interspersed with contentions that the trial court found an “inappropriate aggravator” when it referred to the nature of the offense as “cold blooded” and “ruthless.” Appellant’s Br. at 8, 9, 10. As our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be analyzed separately. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). We, therefore, take this opportunity to, again, clarify that an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). An abuse of discretion at sentencing occurs when the trial court “fails to enter a sentencing statement . . . enters a sentencing statement that explains reasons for imposing a sentence but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law.” Anglemyer, 868 N.E.2d at 490.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 5 of 6 accomplish. We, therefore, conclude that the nature of the offense does not
establish that Marcus’s sentence was inappropriate.
[11] As to his character, the evidence showed that Marcus did not have a prior
criminal history, that he pleaded guilty, and that he showed remorse for his
crime. However, the fact that, when Reynolds refused to have sex with him,
Marcus became so angry that he strangled her to death demonstrates poor
character on Marcus’s behalf. We conclude that Marcus’s character does not
show that his sentence is inappropriate, especially in light of the fact that in
order to demonstrate that his sentence is inappropriate, Marcus was required to
establish that his sentence is inappropriate in light of both the nature of the
offense and the character of the offender. See Williams v. State, 891 N.E.2d 621,
633 (Ind. Ct. App. 2008) (“revision of a sentence under Indiana Appellate Rule
7(B) requires the appellant to demonstrate that his sentence is inappropriate in
light of both the nature of his offenses and his character”) (emphasis in original).
We do not find Marcus’s sentence to be inappropriate in light of both the nature
of the offense and his character.
[12] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015 Page 6 of 6