MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 27 2019, 11:12 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. Navarre, Florida Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Wilbert T. Sturgis, November 27, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-PC-898 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff. Alevizos, Judge Trial Court Cause No. 46C01-0409-MR-129
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 1 of 8 Case Summary [1] Wilbert T. Sturgis (“Sturgis”) appeals his sixty-year sentence for Murder, a
felony.1 We affirm.
Issues [2] Sturgis presents two issues for review:
I. Whether the trial court abused its sentencing discretion in its consideration of aggravating and mitigating circumstances; and
II. Whether the sixty-year sentence is inappropriate.
Facts and Procedural History [3] The following facts are taken from the unpublished memorandum decision of
the direct appeal:
On the morning of September 20, 2004, teenager Barbara Day was dismissed early from Michigan City High School because of an earlier altercation she had with another teenager known only by his nickname, “Spider.” Tr. p. 324. Day went to her home in Michigan City and was joined there by at least eight other individuals, including twenty-six-year-old Sturgis. Day came up with a plan, to which everyone agreed, to go to the westside of Michigan City to look for Spider and to fight him.
1 Ind. Code § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 2 of 8 The group at Day’s house agreed to go to a school bus stop near 9th and Willard in Michigan City at about the time the bus was scheduled to drop off students. The group drove there in two cars, with Sturgis riding in a car driven by Natasha Harris. After arriving at the intersection, the group parked and got out of the cars. Day believed she saw Spider’s cousin in a group of boys that included fifteen-year-old Blake Kelly walking along the sidewalk.
Day approached the group of boys and began asking Spider’s supposed cousin where he was. This boy denied knowing where Spider was. Kelly then told Day and her friends that they were not going to “jump him,” and Day told him to be quiet because he had nothing to do with it. Id. at 330. One of Day’s cousins, Willie Martin, began threatening to fight Kelly but Day told him to leave Kelly alone.
While Day and her group were arguing with Kelly and his group, Sturgis walked up to Kelly and shot him in the jaw with a handgun. Kelly was unarmed, as was everyone else in the two groups besides Sturgis. This initial shot did not kill Kelly. Sturgis then put the handgun up against the side of Kelly’s head and shot him again, this time killing him. Police soon obtained several statements identifying Sturgis as Kelly’s killer, and they obtained a warrant for Sturgis’s arrest.
On September 21, 2004, Sturgis turned himself into the Gary Police Department. … Initially during [an] unrecorded interview, Sturgis said he had been out of town when Kelly was shot so he could not have done it. He later retracted that statement, however, and admitted to what had happened.
Sturgis v. State, 46A03-0506-CR-00304, WL 5749798, Slip op. at 1-2 (Ind. Ct.
App. Sept. 30, 2015).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 3 of 8 [4] Sturgis was charged with Murder and Kidnapping. At the conclusion of his
trial on April 14, 2005, a jury found him guilty of Murder but not guilty of
Kidnapping. He was sentenced to sixty-five years imprisonment.
[5] Sturgis appealed, raising four issues: whether the prosecutor committed
misconduct during voir dire; whether his police statement was inadmissible;
whether the trial court abused its sentencing discretion; and whether his sixty-
five-year sentence was inappropriate. See id. at 1. Sturgis’s conviction and
sentence were affirmed. Id.
[6] On April 12, 2013, Sturgis filed a petition for post-conviction relief, which was
amended on December 5, 2016, and again on April 28, 2017. One claim made
by Sturgis was that his trial counsel was ineffective during the sentencing
hearing for failing to argue that Sturgis’s remorse was a mitigating factor.
Sturgis was granted partial post-conviction relief, in that the post-conviction
court ordered that Sturgis be resentenced. Sturgis appealed, contending that his
trial counsel had also been ineffective during the evidentiary phase of trial, for
failure to object to Sturgis standing trial while shackled. This Court affirmed
the post-conviction judgment. Sturgis v. State, 46A03-1711-PC-2652 (Ind. Ct.
App. June 15, 2018).
[7] On March 22, 2019, Sturgis was resentenced. The trial court found as
aggravating factors: Sturgis had a criminal history; he was on parole at the time
he committed the murder; and the murder was committed in the presence of
children. The trial court recognized Sturgis’s cooperation with police as a “very
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 4 of 8 slight mitigating factor,” observing that Sturgis had failed to “take full
responsibility at the time.” (App. Vol. III, pg. 9.) Also, the trial court
recognized Sturgis’s remorse as a mitigating factor. Concluding that the
aggravators outweighed the mitigators, the trial court imposed upon Sturgis a
sentence of sixty years imprisonment. He now appeals.
Discussion and Decision Abuse of Discretion [8] Sturgis contends that the trial court abused its discretion by failing to “give
more weight to Mr. Sturgis’s cooperation in turning himself into the police,
giving a statement to police and his remorse at the re-sentencing hearing.”
Appellant’s Brief at 12.
[9] The sentencing scheme in effect at the time of a criminal offense is controlling.
See Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007). In 2004, sentencing in
Indiana was governed by a “presumptive” scheme; that is, the legislature had
prescribed “standard” or “presumptive” sentences for each crime, allowing the
sentencing court limited discretion to enhance a sentence for aggravating
circumstances or reduce a sentence for mitigating circumstances. Francis v.
State, 817 N.E.2d 235, 237 (Ind. 2004). Pursuant to Indiana Code Section 35-
50-2-3, the presumptive sentence for a murder committed in 2004 was fifty-five
years, with a minimum sentence of forty-five years and a maximum sentence of
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 5 of 8 sixty-five years.2 When Sturgis was resentenced, he received a sentence five
years above the presumptive sentence.
[10] Under the presumptive sentencing scheme, if the court relied on aggravating or
mitigating circumstances to deviate from the presumptive sentence, the court
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 27 2019, 11:12 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. Navarre, Florida Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Wilbert T. Sturgis, November 27, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-PC-898 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff. Alevizos, Judge Trial Court Cause No. 46C01-0409-MR-129
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 1 of 8 Case Summary [1] Wilbert T. Sturgis (“Sturgis”) appeals his sixty-year sentence for Murder, a
felony.1 We affirm.
Issues [2] Sturgis presents two issues for review:
I. Whether the trial court abused its sentencing discretion in its consideration of aggravating and mitigating circumstances; and
II. Whether the sixty-year sentence is inappropriate.
Facts and Procedural History [3] The following facts are taken from the unpublished memorandum decision of
the direct appeal:
On the morning of September 20, 2004, teenager Barbara Day was dismissed early from Michigan City High School because of an earlier altercation she had with another teenager known only by his nickname, “Spider.” Tr. p. 324. Day went to her home in Michigan City and was joined there by at least eight other individuals, including twenty-six-year-old Sturgis. Day came up with a plan, to which everyone agreed, to go to the westside of Michigan City to look for Spider and to fight him.
1 Ind. Code § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 2 of 8 The group at Day’s house agreed to go to a school bus stop near 9th and Willard in Michigan City at about the time the bus was scheduled to drop off students. The group drove there in two cars, with Sturgis riding in a car driven by Natasha Harris. After arriving at the intersection, the group parked and got out of the cars. Day believed she saw Spider’s cousin in a group of boys that included fifteen-year-old Blake Kelly walking along the sidewalk.
Day approached the group of boys and began asking Spider’s supposed cousin where he was. This boy denied knowing where Spider was. Kelly then told Day and her friends that they were not going to “jump him,” and Day told him to be quiet because he had nothing to do with it. Id. at 330. One of Day’s cousins, Willie Martin, began threatening to fight Kelly but Day told him to leave Kelly alone.
While Day and her group were arguing with Kelly and his group, Sturgis walked up to Kelly and shot him in the jaw with a handgun. Kelly was unarmed, as was everyone else in the two groups besides Sturgis. This initial shot did not kill Kelly. Sturgis then put the handgun up against the side of Kelly’s head and shot him again, this time killing him. Police soon obtained several statements identifying Sturgis as Kelly’s killer, and they obtained a warrant for Sturgis’s arrest.
On September 21, 2004, Sturgis turned himself into the Gary Police Department. … Initially during [an] unrecorded interview, Sturgis said he had been out of town when Kelly was shot so he could not have done it. He later retracted that statement, however, and admitted to what had happened.
Sturgis v. State, 46A03-0506-CR-00304, WL 5749798, Slip op. at 1-2 (Ind. Ct.
App. Sept. 30, 2015).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 3 of 8 [4] Sturgis was charged with Murder and Kidnapping. At the conclusion of his
trial on April 14, 2005, a jury found him guilty of Murder but not guilty of
Kidnapping. He was sentenced to sixty-five years imprisonment.
[5] Sturgis appealed, raising four issues: whether the prosecutor committed
misconduct during voir dire; whether his police statement was inadmissible;
whether the trial court abused its sentencing discretion; and whether his sixty-
five-year sentence was inappropriate. See id. at 1. Sturgis’s conviction and
sentence were affirmed. Id.
[6] On April 12, 2013, Sturgis filed a petition for post-conviction relief, which was
amended on December 5, 2016, and again on April 28, 2017. One claim made
by Sturgis was that his trial counsel was ineffective during the sentencing
hearing for failing to argue that Sturgis’s remorse was a mitigating factor.
Sturgis was granted partial post-conviction relief, in that the post-conviction
court ordered that Sturgis be resentenced. Sturgis appealed, contending that his
trial counsel had also been ineffective during the evidentiary phase of trial, for
failure to object to Sturgis standing trial while shackled. This Court affirmed
the post-conviction judgment. Sturgis v. State, 46A03-1711-PC-2652 (Ind. Ct.
App. June 15, 2018).
[7] On March 22, 2019, Sturgis was resentenced. The trial court found as
aggravating factors: Sturgis had a criminal history; he was on parole at the time
he committed the murder; and the murder was committed in the presence of
children. The trial court recognized Sturgis’s cooperation with police as a “very
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 4 of 8 slight mitigating factor,” observing that Sturgis had failed to “take full
responsibility at the time.” (App. Vol. III, pg. 9.) Also, the trial court
recognized Sturgis’s remorse as a mitigating factor. Concluding that the
aggravators outweighed the mitigators, the trial court imposed upon Sturgis a
sentence of sixty years imprisonment. He now appeals.
Discussion and Decision Abuse of Discretion [8] Sturgis contends that the trial court abused its discretion by failing to “give
more weight to Mr. Sturgis’s cooperation in turning himself into the police,
giving a statement to police and his remorse at the re-sentencing hearing.”
Appellant’s Brief at 12.
[9] The sentencing scheme in effect at the time of a criminal offense is controlling.
See Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007). In 2004, sentencing in
Indiana was governed by a “presumptive” scheme; that is, the legislature had
prescribed “standard” or “presumptive” sentences for each crime, allowing the
sentencing court limited discretion to enhance a sentence for aggravating
circumstances or reduce a sentence for mitigating circumstances. Francis v.
State, 817 N.E.2d 235, 237 (Ind. 2004). Pursuant to Indiana Code Section 35-
50-2-3, the presumptive sentence for a murder committed in 2004 was fifty-five
years, with a minimum sentence of forty-five years and a maximum sentence of
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 5 of 8 sixty-five years.2 When Sturgis was resentenced, he received a sentence five
years above the presumptive sentence.
[10] Under the presumptive sentencing scheme, if the court relied on aggravating or
mitigating circumstances to deviate from the presumptive sentence, the court
was required to “(1) identify all significant mitigating and aggravating
circumstances; (2) state the specific reason why each circumstance has been
determined to be mitigating or aggravating; and (3) articulate the court’s
evaluation and balancing of circumstances.” Francis, 817 N.E.2d at 237. When
a sentence greater than the presumptive was challenged on appeal, the
reviewing court would examine the record for an adequate explanation of the
reasons for the sentence imposed. Id. If the reviewing court found “irregularity
in the lower court’s sentencing decision,” the court could elect among options,
including “to remand to the trial court for a clarification or new sentencing
determination, to affirm the sentence if the error is harmless, or to reweigh the
proper aggravating and mitigating circumstances independently at the appellate
level.” Id. at 238.
2 On June 24, 2004, the Supreme Court of the United States handed down Blakely v. Washington, 542 U.S. 296, 301 (2004), holding that the Sixth Amendment right to a jury trial required that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Smylie v. State, 823 N.E.2d 679 (Ind. 2005), our Indiana Supreme Court held that the Indiana sentencing scheme violated the Sixth Amendment as explained in Blakely. The Legislature responded and, effective April 25, 2005, the sentencing statutes were amended to replace presumptive sentences with advisory sentences. The sentencing court was authorized, within its discretion, to impose any sentence within the statutory range. Robertson, 871 N.E.2d at 283.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 6 of 8 [11] Here, the trial court identified aggravating and mitigating circumstances
supported by the evidence. Sturgis does not claim that the trial court omitted a
mitigating circumstance, improperly found an aggravating circumstance, or
failed to provide an adequate sentencing statement. In short, he does not
identify “irregularity in the sentencing decision,” see id., such that reweighing
the circumstances would be warranted.3
Appropriateness of Sentence [12] 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.” Under the presumptive statutory scheme,
the presumptive sentence was the starting point the Legislature selected as an
appropriate sentence for the crime committed. Ruiz v. State, 818 N.E.2d 927,
929 (Ind. 2004).
[13] As for the nature of the offense, Sturgis fired multiple shots into an unarmed
teenager. He killed the fifteen-year-old victim in the presence of other children.
[14] As for his character, Sturgis has a criminal history (including armed robbery
and possession of cocaine), a history of substance abuse, and past affiliation
3 After enactment of the advisory sentencing scheme, a trial court no longer has an obligation to “weigh” aggravating circumstances against mitigating circumstances when deciding what sentence to impose, unlike the pre-Blakely regime. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). However, as we have observed, Sturgis was sentenced under the presumptive sentencing scheme.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 7 of 8 with a street gang. He was on parole when he committed the murder. He
expressed remorse, and his decision to surrender to police reflects favorably on
his character. However, Sturgis surrendered after a warrant was issued for his
arrest and he initially claimed that he could not have committed the murder
because he was out of town.
[15] Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B) warranting appellate revision.
Accordingly, we decline to disturb the sentence imposed by the trial court.
Conclusion [16] Sturgis has not shown that the trial court abused its sentencing discretion. His
sixty-year sentence for Murder is not inappropriate.
[17] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019 Page 8 of 8