Melvin Macon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 5, 2016
• Docket: 45A05-1506-CR-707
• Status: Published

Opinion

MEMORANDUM DECISION FILED Apr 05 2016, 9:22 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Thomas W. Vanes Gregory F. Zoeller Crown Point, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Melvin Macon, April 5, 2016 Appellant-Defendant, Court of Appeals Case No. 45A05-1506-CR-707 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Clarence D. Appellee-Plaintiff. Murray, Judge Trial Court Cause No. 45G02-1309-FA-26

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016 Page 1 of 6 STATEMENT OF THE CASE

[1] Appellant-Defendant, Melvin Macon (Macon), appeals his sentence following

his guilty plea for two Counts of attempted aggravated battery, Class B felonies,

Ind. Code § 35-42-2-1.5 (2013).

[2] We affirm.

ISSUE

[3] Macon raises one issue on appeal, which we restate as follows: Whether his

sentence was inappropriate in light of the nature of the offense and his

character.

FACTS AND PROCEDURAL HISTORY

[4] On July 24, 2013, while responding to a report of shots fired in the area,

Officers Sergio Garcia and Donya Rimmer of the Gary Police Department,

both wearing full police uniform and traveling in a fully marked police cruiser,

observed a man, later identified as Macon, carrying a handgun equipped with a

laser sight. The officers ordered Macon to stop. Instead of stopping, Macon

pointed his handgun at the officers’ vehicle and fired several shots. Macon fled

and was later apprehended.

[5] On September 5, 2013, the State filed an Information charging Macon with two

Counts of attempted murder, Class A felonies; two Counts of attempted

aggravated battery, Class B felonies; and two Counts of attempted battery by

means of a deadly weapon, Class C felonies. On February 11, 2015, Macon

Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016 Page 2 of 6 pled guilty to both Counts of attempted aggravated battery, and, pursuant to the

terms of the plea agreement, the State dismissed the remaining Counts and

agreed that Macon’s sentences would run concurrently.

[6] At a sentencing hearing on May 20, 2015, the trial court found the

circumstances of the crime to be a “significant aggravator” because there were

multiple victims, the victims were police officers engaged in their lawful duties,

and Macon’s handgun was equipped with a laser sight. (Transcript p. 33). In

addition, the trial court identified Macon’s criminal history and his “numerous

write-ups” in Lake County Jail since being incarcerated for the present offense

as aggravators. (Tr. pp. 33-34). As for mitigating circumstances, the trial court

noted Macon’s guilty plea, his expressions of remorse, the fact that he

completed the 12-step chemical dependency program, and his history of mental

illness or learning disabilities. At the conclusion of the hearing, the trial court

sentenced Macon to 14 years of imprisonment for each Count, with two years

suspended to probation, to be served concurrently.

[7] Macon now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] Macon argues that his sentence is inappropriate in light of the nature of the

offense and his character. It is well settled that “sentencing is principally a

discretionary function in which the trial court’s judgment should receive

considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

Although a trial court may have acted within its lawful discretion in

Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016 Page 3 of 6 determining a sentence, our court may revise the sentence if, “after due

consideration of the trial court’s decision, [we] find[ ] that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” Appellate Rule 7(B). With respect to Appellate Rule 7(B),

“[t]he principal role of appellate 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, 895 N.E.2d at 1225. Ultimately,

“whether 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.” Id. at 1224. In making this determination, we focus on the length of the

aggregate sentence and the manner in which it is to be served. Id. The

defendant bears the burden of proving that his sentence is inappropriate. Reid v.

State, 876 N.E.2d 1114, 1116 (Ind. 2007).

[9] As to the nature of the offense, we note that Macon repeatedly shot at two fully

uniformed police officers in their marked squad vehicle. We believe that this

aggravator alone could have justified the trial court’s sentence. As our supreme

court noted,

Police officers routinely risk their lives in the sometimes high stakes gamble of protecting society. They do a job that we all want and need done, though few of us possess the bravery and skill to do. They ask for little in return, but they do ask for some protection.

Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016 Page 4 of 6 Salyers v. State, 862 N.E.2d 650, 654 (Ind. 2007); see also Petruso v. State, 441

N.E.2d 446, 450 (Ind. 1982) (finding the fact that the defendant attempted to

murder a police officer who was performing his duties was a proper

aggravator); Mendoza v. State, 869 N.E.2d 546, 557 (Ind. Ct. App. 2007)

(affirming the defendant’s maximum sentence solely based on the nature of the

offense because the defendant “repeatedly fired a loaded revolver at two officers

who were in full uniforms, performing their duties.”), trans. denied. However, in

addition, Macon was utilizing a laser sight, a sophisticated device designed to

increase the lethal capabilities of a weapon system, which he aimed at multiple

victims, thereby increasing and multiplying the ensued mayhem.

[10] Turning to Macon’s character, we note that Macon had multiple violent

offenses in the past. Macon had a prior misdemeanor conviction for battery

and a juvenile adjudication for battery resulting in bodily injury. Macon

incurred at least 14 conduct violations while incarcerated for the present

offense, including two instances of refusing to obey the lawful request of jail

staff; two instances of fighting with other inmates; assault or attempted assault,

and/or battery or attempted battery on correction officers, jail staff, or fellow

inmates; and fights or threats to harm, either verbally or physically, against

correction officers, jail staff, or fellow inmates. This certainly demonstrates

Macon’s disregard for the law, disrespect for lawful authority, and repeated

violent behavior. Macon claims that the trial court did not consider the “sad

circumstances of [his] upbringing.” (Appellant’s Br. p. 5). We, however, note

that even if the trial court gave his unfortunate childhood any weight, it would

Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016 Page 5 of 6 have been “in the very low range,” if at all. Houser v. State, 823 N.E.2d 693, 700

(Ind. 2005). Accordingly, considering Macon’s unchanged violent behavior

and the malicious circumstances of his offense, we conclude that Macon failed

to persuade us that the trial court’s sentencing decision was inappropriate.

CONCLUSION

[11] Based on the foregoing, we hold that Macon’s sentence was not inappropriate.

[12] Affirmed.

[13] Kirsch, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016 Page 6 of 6