MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D), this                      May 31 2017, 11:25 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                    CLERK
                                                                  Indiana Supreme Court
purpose of establishing the defense of res judicata,                 Court of Appeals
                                                                       and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Mary P. Lake                                           Curtis T. Hill, Jt.
LaPorte, Indiana                                       Attorney General of Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Martell J. Anderson,                                       May 31, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           46A03-1701-CR-108

        v.                                                 Appeal from the LaPorte Superior
                                                           Court
State of Indiana,                                          The Hon. Michael S. Bergerson,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           46D01-1211-MR-545




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017        Page 1 of 10
                                          Case Summary
[1]   In November of 2012, Appellant-Defendant Martell Anderson and three others

      participated in the robbery of Gerald Peters. During the robbery, Anderson

      struck Peters several times with a baseball bat, causing serious bodily injuries

      which proved fatal. The State initially charged Anderson with murder, felony

      murder, and Class A felony robbery that resulted in serious bodily injury.

      Ultimately, Anderson pled guilty to Class A felony robbery and agreed to

      cooperate in the prosecution of his codefendants in exchange for the dismissal

      of the murder and felony murder counts. In August of 2016, the trial court

      sentenced Anderson to fifty years of incarceration. In so doing, the trial court

      found that the aggravating circumstances far outweighed the mitigating.

      Anderson contends that the trial court abused its discretion in sentencing him

      and that his sentence is inappropriately harsh. Because we disagree with both

      contentions, we affirm.



                            Facts and Procedural History
[2]   On November 8, 2012, Anderson, along with Mjoseph Basford, Ryan Phelps,

      and Trevon Walker, went to the Michigan City home of sixty-nine-year-old

      Peters with the intent to rob him. Phelps planned to go inside and leave the

      backdoor open for the others to enter and take gold and televisions from Peters.

      Once the quartet was inside, Phelps lured Peters downstairs, where Basford

      struck him with a bottle, knocking him down. While others went upstairs to

      look for items to steal, Anderson stole one of Peters’s credit cards. When Peters

      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017   Page 2 of 10
      appeared to be attempting to get up, Anderson struck him multiple times with a

      baseball bat, causing serious bodily injury to which Peters eventually

      succumbed. Phelps turned on the gas stove in the kitchen in an attempt to blow

      up the house, and the quartet left in Peters’s car.


[3]   On November 8, 2012, the State charged Anderson with murder, felony

      murder, and Class A felony robbery that resulted in serious bodily injury. On

      November 14, 2013, Anderson pled guilty to Class A felony robbery pursuant

      to a plea agreement. The plea agreement provided that, in exchange for

      Anderson cooperating in the prosecution of his three codefendants and pleading

      guilty to Class A felony robbery, the State would dismiss the murder and felony

      murder charges. On December 31, 2015, following a sentencing hearing, the

      trial court rejected the plea agreement.


[4]   On January 20, 2016, the parties submitted a new plea agreement, which the

      trial court accepted. Once the terms of the new agreement were satisfied, the

      trial court held another sentencing hearing on August 17, 2016. The trial court

      found the following aggravating circumstances: (1) Anderson was in need of

      correctional and or rehabilitative treatment best provided by commitment to a

      penal facility; (2) Anderson was most responsible for the death of Peters; (3) a

      reduced or suspended sentence would depreciate the seriousness of the crime

      given Anderson’s responsibility; (4) the victim of the crime was at least sixty-

      five years of age; (5) Anderson used more force than necessary to commit Class

      A felony robbery; and (6) the brutality of the injuries, pain, and suffering

      endured by Peters before he died reflect a callous disregard for human life.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017   Page 3 of 10
[5]   The court found mitigating factors in Anderson’s age of sixteen at the time of

      the commission of the crime, lack of significant criminal history, guilty plea,

      and cooperation and assistance in the prosecution of his codefendants. The

      trial court additionally found that Anderson received a substantial benefit from

      his plea agreement which dismissed charges of murder and felony murder and

      that the aggravating circumstances far outweighed the mitigating

      circumstances. The trial court sentenced Anderson to fifty years of

      incarceration, stating in its sentencing order that

              [t]he court finds that the Aggravating circumstances far outweigh
              the Mitigating circumstances and hereby sentences the Defendant
              within the parameters of the Plea Agreement to the Indiana
              Department of Correction for a period of Fifty (50) years; fully
              executed and with none suspended. The Court is not imposing
              the maximum sentence because it disagrees with the decision of
              the Prosecuting Attorney to dismiss the Murder and Felony
              Murder charges; nor does the Court believe that the imposition of
              anything less than the maximum sentence would provide the
              rationale to justify the plea agreement.
              In its simplest terms, the maximum sentence within the
              parameters of the Plea Agreement is warranted under the
              circumstances.
      Conf. App. Vol. II p. 93. Anderson contends that the trial court abused its

      discretion in sentencing him and that his sentence is inappropriately harsh.


                                Discussion and Decision




      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017   Page 4 of 10
                                     I. Abuse of Discretion
[6]   Under our current sentencing scheme, “the trial court must enter a statement

      including reasonably detailed reasons or circumstances for imposing a

      particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the

      sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the

      decision is clearly against the logic and effect of the facts and circumstances.”

      Id.


[7]   A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at

      all[,]” (2) enters “a sentencing statement that explains reasons for imposing a

      sentence–including a finding of aggravating and mitigating factors if any–but

      the record does not support the reasons,” (3) enters a sentencing statement that

      “omits reasons that are clearly supported by the record and advanced for

      consideration,” or (4) considers reasons that “are improper as a matter of law.”

      Id. at 490-91. If the trial court has abused its discretion, we will remand for

      resentencing “if we cannot say with confidence that the trial court would have

      imposed the same sentence had it properly considered reasons that enjoy

      support in the record.” Id. at 491. However, the relative weight or value

      assignable to reasons properly found, or to those which should have been

      found, is not subject to review for abuse of discretion. Id. There is no

      requirement that a trial court generate a list of aggravating and mitigating

      circumstances, only that it state reasonably detailed reasons. Id. at 490. A

      single aggravating factor can support upper-level sentences. See Willey v. State,

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      712, N.E.2d 434, 446 (Ind. 1999) (stating that a single aggravating circumstance

      may be sufficient to support an enhanced sentence). Although material

      elements of the crime may not be considered as aggravating factors at

      sentencing, the particularized circumstances of the elements properly may be

      considered as such. See, e.g., McElroy v. State, 865 N.E.2d 584, 598-99 (Ind.

      2007); Scott v. State, 840 N.E.2d 376, 382 (Ind. Ct. App. 2006).


                               A. Aggravating Circumstances
[8]   As previously mentioned, the trial court found the following aggravating

      circumstances: (1) Anderson was in need of correctional and or rehabilitative

      treatment best provided by commitment to a penal facility; (2) Anderson was

      most responsible for the death of Peters; (3) a reduced or suspended sentence

      would depreciate the seriousness of the crime given Anderson’s responsibility;

      (4) the victim of the crime was at least sixty-five years of age; (5) Anderson used

      more force than necessary to commit Class A felony robbery; and (6) the

      brutality of the injuries, pain, and suffering endured by Peters before he died

      reflect a callous disregard for human life.


[9]   Anderson argues that we should “merge” aggravating circumstances (2), (5),

      and (6) because they are all encompassed by Indiana Code section 35-38-1-

      7.1(a)(1), which states: “The harm, injury, loss, or damage suffered by the

      victim of an offense was: (A) significant; and (B) greater than the elements

      necessary to prove the commission of the offense.” We find no abuse of

      discretion here. The question of whether Anderson used more force than

      necessary to establish Class A felony robbery is separate from the questions of
      Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017   Page 6 of 10
       whether he was primarily responsible for Peters’s death and his callous

       disregard for human life. Put another way, Anderson could easily have

       satisfied the statutory aggravating circumstance of greater force than necessary

       without being the only one who beat Peters with a baseball bat and without the

       beating being so brutal and unnecessary. In any event, even if we were to

       accept Anderson’s invitation to “merge” three of the six aggravating

       circumstances found by the trial court into one, Anderson has not shaken our

       confidence that the trial court’s sentence would be the same, given that “a single

       aggravating circumstance may be sufficient to support an enhanced sentence.”

       Willey, 712 N.E.2d at 446.


[10]   Anderson also argues that there was no evidence that he was in need of

       correctional or rehabilitative treatment that could best be provided by

       commitment to a penal facility. Anderson himself does not dispute the need for

       commitment to a penal facility, as he himself argued in favor of a thirty-year

       sentence, as opposed to the fifty-year sentence imposed by the trial court.

       Moreover, Anderson’s witness Dr. James Garbarino, Ph.D., testified that he

       had interviewed many men who had committed heinous crimes as teenagers

       who were rehabilitated following lengthy prison sentences. If anything, this

       evidence supports the conclusion that Anderson would likely benefit from a

       lengthy prison sentence.


                                  B. Mitigating Circumstances
[11]   Anderson does not argue that the trial court overlooked any significant

       mitigating circumstances, asserting only the trial court failed to give sufficient
       Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017   Page 7 of 10
       weight to his lack of significant criminal history, youth, and guilty plea.

       However, “trial courts no longer have any obligation to weigh aggravating and

       mitigating factors against each other when imposing a sentence.” Richardson v.

       State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009). The amount of weight given

       to mitigating factors is thus no longer a cognizable issue on appeal and cannot

       support an abuse of discretion claim. See Anglemyer, 868 N.E.2d at 491.

       Anderson has failed to establish that the trial court abused its discretion in

       sentencing him.


                             II. Appropriateness of Sentence
[12]   We “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.” Ind.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). “[W]hether 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). In addition to the “due consideration” we are required to give to the

       trial court’s sentencing decision, “we understand and recognize the unique

       Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017   Page 8 of 10
       perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

       866 N.E.2d 867, 873 (Ind. Ct. App. 2007). As mentioned, the trial court

       sentenced Anderson to a maximum sentence of fifty years of incarceration for

       Class A felony robbery resulting in serious bodily injury.


[13]   The nature of Anderson’s offense easily justifies his maximum sentence.

       Anderson was involved in a plan to rob the sixty-nine-year-old Peters, which

       involved luring him down into the basement and repeatedly beating him with a

       baseball bat. When Peters began to get up off the floor following a series of

       beatings, Anderson beat him to death with a baseball bat. In short, the nature

       of Anderson’s offense is that of appallingly senseless violence. Anderson’s

       Class A felony robbery conviction is based on facts that go way beyond the

       typical scenario in which a victim is punched or knocked down and has his or

       her wallet stolen. Anderson and his accomplices had many options for carrying

       out the robbery, but instead of breaking in while Peters was not at home, or,

       perhaps, tying him up to prevent his interference, Anderson chose to beat him

       to death. The nature of Anderson’s offense reasonably justifies his enhanced

       sentence.


[14]   Anderson’s character also justifies his enhanced sentence, being that of a highly

       dangerous person who, despite a stable upbringing and virtually no prior history

       of violence, went directly to bludgeoning an elderly man to death with a

       baseball bat during a robbery. Anderson argues that his guilty plea and

       cooperation with authorities are evidence of good character. Considering the

       very substantial benefit Anderson received in exchange for his plea and

       Court of Appeals of Indiana | Memorandum Decision 46A03-1701-CR-108 | May 31, 2017   Page 9 of 10
       cooperation, we disagree. The State dismissed murder and felony murder

       charges against Anderson; had Anderson been convicted of either charge, he

       was facing a maximum sentence of sixty-five years of incarceration. See Ind.

       Code §§ 35-50-2-3; 35-42-1-1. At the very least, Anderson lessened his potential

       exposure by the fifteen additional years of incarceration he could have received

       for murder or felony murder. Anderson’s character reasonably justifies his

       enhanced sentence. Anderson has failed to establish that his fifty-year sentence

       for Class A felony robbery is inappropriate considering the nature of his offense

       and his character.


[15]   We affirm the judgment of the trial court.


       Najam, J., and Riley, J., concur.




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