MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Sep 16 2015, 9:07 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
Sean P. Hilgendorf                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jermaine Munn, Jr.,                                      September 16, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1503-CR-96
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1406-MR-7



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015   Page 1 of 7
[1]   In 2014, Appellee-Plaintiff the State of Indiana (“the State”) charged Appellant-

      Defendant Jermaine Munn, Jr. with murder and Class B felony robbery. Munn

      pled guilty to murder. Pursuant to the plea agreement, the State dropped the

      robbery charge and left sentencing to the trial court’s discretion. The trial court

      sentenced Munn to a sixty-five-year executed term. Munn appeals, arguing that

      his sentence is inappropriate. We affirm the trial court’s sentence.



                            Facts and Procedural History
[2]   On April 16, 2014, then-sixteen-year-old Munn and his friend, Shane Williams,

      agreed to rob Nathan Hall of marijuana and money. The plan was for Williams

      to pretend to purchase marijuana from Hall and for Munn to arrive at the

      transaction location and act as if he were robbing both men. Williams

      contacted Hall and the two agreed to meet in order for Williams to purchase

      marijuana from Hall. Once Williams and Hall met, Munn approached the two

      carrying a 9mm handgun. Munn demanded property from Williams and Hall

      and pointed the handgun at Hall’s face. Hall then began emptying his pockets

      and stated, “Shane, are you going to do me this way?” App. p. 62. Munn then

      stated, “he knows your name?”, and shot Hall once in the face, killing him.

      App. p. 62. Munn and Williams then took marijuana and $80.00 in cash from

      Hall and fled the scene.


[3]   On June 11, 2014, the State charged Munn with murder and Class B felony

      robbery. On October 13, 2014, Munn entered into a plea agreement with the

      State whereby Munn would plead guilty to murder and, in return, the State

      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015   Page 2 of 7
      would dismiss the robbery charge. With regard to sentencing, the plea

      agreement read as follows:


              The parties will be free to argue at sentencing.
                                                 ***

              [T]he Defendant has been advised, and understands, that the
              possible penalty for Murder, a felony, is imprisonment for a
              period of between forty-five (45) years and sixty-five (65) years
              with the advisory sentence being fifty-five (55) years….

              I understand that I have a right to appeal my sentence if there is
              an open plea. An open plea is an agreement which leaves my
              sentence to the Judge’s discretion. As a condition of entering this
              plea agreement I knowingly and voluntarily agree to waive my
              right to appeal my sentence on the basis that it is erroneous or for
              any other reason so long as the Judge sentences me within the
              terms of my plea agreement.


      App. pp. 17-18. On March 6, 2015, the trial court sentenced Munn to sixty-five

      years imprisonment.



                                 Discussion and Decision
                       I. Waiver of Right to Appeal Sentence
[4]   The State argues that Munn waived the right to appeal his sentence pursuant to

      his plea agreement. However, the plea agreement states that Munn retained the

      right to appeal his sentence in the event of an open plea. A plea agreement

      where the issue of sentencing is left to the trial court’s discretion is often



      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015   Page 3 of 7
      referred to as an “open plea,” i.e. where the sentence is not fixed by the plea

      agreement. Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004).


[5]   In this case, unlike the cases cited by the State, the plea agreement was open as

      it did not cap Munn’s potential sentence and allowed the parties to make

      arguments at the sentencing hearing. The State even acknowledges in its brief

      that “[s]entencing was left to the trial court’s discretion.” Appellee’s Br. p. 1.

      Accordingly, we conclude that Munn did not waive the right to appeal his

      sentence.


                             II. Appropriateness of Sentence
[6]   Munn contends that his sixty-five-year sentence is inappropriate in light of the

      nature of his offense and his character. “Ind. Appellate Rule 7(B) empowers us

      to independently review and revise sentences authorized by statute if, after due

      consideration, we find the trial court’s decision inappropriate in light of the

      nature of the offense and the character of the offender.” Anderson v. State, 989

      N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “An appellant bears the

      burden of showing both prongs of the inquiry favor revision of [his] sentence.”

      Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “We must give

      ‘deference to a trial court’s sentencing decision, both because Rule 7(B) requires

      us to give due consideration to that decision and because we understand and

      recognize the unique perspective a trial court brings to its sentencing

      decisions.’” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting

      Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.).


      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015   Page 4 of 7
[7]   The nature of Munn’s senseless offense does nothing to convince us that his

      sentence is inappropriate. Munn shot an unarmed eighteen-year-old man in the

      face from point-blank range. Munn was under no threat when he took this

      action. Despite Munn’s argument that the murder was a spur-of-the-moment

      decision, it was committed part-and-parcel to a premeditated robbery

      coordinated between Munn and Williams ahead of time and was intended to

      silence Hall from incriminating them in the robbery.


[8]   Munn’s only argument regarding his character is that the trial court should have

      considered his age as a mitigating factor. Despite his young age, Munn has

      amassed an extensive criminal history which reflects poorly on his character.

      Munn had his first run-in with law enforcement in 2010 at the age of fourteen

      when he was arrested for theft. In the subsequent three-and-a-half years, before

      committing the instant crime, Munn committed numerous offenses including

      disorderly conduct, theft, resisting law enforcement, false informing,

      intimidation, burglary, possession of marijuana, and various juvenile status

      offenses. On the same day Munn robbed and murdered Hall, Munn was

      arrested for an unrelated burglary and possession of marijuana.


[9]   We do not agree with Munn’s argument that his character is any less heinous

      due to his age.


              As we stated in Sensback v. State, 720 N.E.2d 1160, 1164 (Ind.
              1999), “Age is neither a statutory nor a per se mitigating factor.
              There are cunning children and there are naïve adults.” In other
              words, focusing on chronological age, while often a shorthand
              for measuring culpability, is frequently not the end of the inquiry

      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015   Page 5 of 7
               for people in their teens and early twenties. See Ellis v. State, 736
               N.E.2d 731, 736 (Ind. 2000). There are both relatively old
               offenders who seem clueless and relatively young ones who
               appear hardened and purposeful.


       Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). Based on Munn’s extensive

       criminal history and the callous and indifferent nature by which he committed

       the instant crime, it seems clear that he falls into the latter category of hardened

       and purposeful criminals. Accordingly, we find that Munn’s sentence was not

       inappropriate in light of the nature of his offense and character.


[10]   The judgment of the trial court is affirmed.


       May, J., concurs.


       Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015   Page 6 of 7
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Jermaine Munn, Jr.,                                      Court of Appeals Case No.
                                                                71A04-1503-CR-96
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Crone, Judge, dissenting.


[11]   Although the plea agreement’s waiver clause is inartfully drafted, I believe that

       it is valid and should preclude Munn from appealing his sentence. In essence,

       the clause states, “I understand that I have a right to appeal my sentence if there

       is an open plea, but I agree to waive that right as long as the judge sentences me

       within the terms of my plea agreement.” There was an open plea, and the

       judge sentenced Munn within the terms of his plea agreement. Consequently, I

       would find that Munn has waived his right to appeal his sentence and dismiss

       this appeal. Waiver notwithstanding, I agree with the majority’s Rule 7(B)

       analysis.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-96 | September 16, 2015   Page 7 of 7
