MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Nov 02 2018, 6:42 am

regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                  Curtis T. Hill, Jr.
Appellate Division                                      Attorney General of Indiana
Office of the Public Defender
                                                        Henry A. Flores, Jr.
Crown Point, Indiana                                    Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Melvin Ryan Bruce,                                      November 2, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1430
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G01-1708-MR-6



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018                Page 1 of 12
                                          Case Summary
[1]   Melvin R. Bruce (“Bruce”) appeals his conviction, following a plea agreement,

      for voluntary manslaughter, a Level 2 felony.1 We affirm.



                                                   Issues
[2]   Bruce raises two issues on appeal which we restate as follows:


                I.       Whether the trial court abused its discretion in sentencing.


                II.      Whether his sentence is inappropriate in light of the nature
                         of the offense and his character.


                               Facts and Procedural History
[3]   On August 29, 2017, Bruce was with his girlfriend, Temica Spencer

      (“Spencer”), at their residence in Lake County. Spencer’s twelve-year-old

      daughter and Bruce’s and Spencer’s one-year-old daughter were also present in

      the home. Bruce and Spencer got into a heated argument and exchanged

      threats. Spencer briefly left the argument and returned with a knife. Bruce

      “was frightened for his life, although not to the reasonable level of fear required

      to establish self defense.” Appellant’s App. Vol. II at 83. Bruce retrieved his




      1
          Ind. Code § 35-42-1-3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018   Page 2 of 12
      handgun and shot Spencer one time in the chest. Spencer died as a result of the

      gunshot wound.


[4]   The State charged Bruce with murder2 and sought an enhancement based on

      Bruce’s use of a firearm in the commission of the offense. 3 After the jury trial

      began, Bruce entered into a plea agreement under which he pled guilty to

      voluntary manslaughter. The agreement allowed the parties to argue for an

      appropriate sentence but capped sentencing to eighteen years of imprisonment.

      The plea agreement also provided that, at the time of sentencing, the State

      would dismiss the charge of murder and the firearm enhancement.


[5]   The court conducted a sentencing hearing on May 17, 2018. Bruce presented

      only one witness, his brother, William Bruce (“William”), who testified

      regarding Bruce’s good character and his remorse but also described Bruce’s

      and Spencer’s relationship as “volatile” “due to the alcohol.” Tr. at 147, 151.

      William further testified that Bruce’s two misdemeanor convictions were also

      “alcohol related.” Id. at 147. And, although William stated that Bruce gave his

      oldest child, Melvin Jr. (“Jr.”), whatever he required, William admitted that

      Bruce was $20,000 behind in child support payments for Jr. William testified

      that Bruce had “surrendered [to William his] parental rights” to his one-year-

      old daughter, and William now cares for that child. Id. at 157.




      2
          I.C. § 35-42-1-1(1).
      3
          I.C. § 35-50-2-11(d).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018   Page 3 of 12
[6]   Bruce asked the court to impose a fifteen-year sentence with eight years

      executed and placement in a community corrections work program. At the end

      of the sentencing hearing, the trial court noted the nature of the crime (killing in

      sudden heat), Bruce’s lack of prior felony convictions, Bruce’s support of family

      and friends, and Bruce’s lack of criminal history of violence. Id. at 181. The

      court also found that the fact that the killing took place while the two young

      children were in the home was an aggravator. The court found that the

      mitigating factors of no significant criminal history and pleading

      guilty/accepting responsibility were balanced out by the “nature and

      circumstances” of the crime. Id. at 184.


[7]   In its written sentencing order, the court found the mitigating factors to be: “(1)

      [Bruce] has no significant history of delinquency or criminal activity[, and] (2)

      [Bruce] has pled guilty and admitted responsibility.” Appellant’s App. Vol. II

      at 140. The court further found the following to be aggravators: “(1) The

      character of [Bruce] is violent and aggressive[, and] (2) [t]he crime of violence

      occurred within the family home” while the children were present. Id. at 141.

      The trial court sentenced Bruce to fifteen years executed in the Department of

      Correction (“DOC”), with 262 days of credit time. This appeal ensued.



                                Discussion and Decision
                          Abuse of Discretion in Sentencing
[8]   Bruce maintains that the trial court erred in sentencing him. Sentencing

      decisions lie within the sound discretion of the trial court. Cardwell v. State, 895
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018   Page 4 of 12
N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is

“clearly against the logic and effect of the facts and circumstances before the

court, or the reasonable, probable, and actual deductions to be drawn

therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation

omitted), trans. denied. A trial court abuses its discretion in sentencing if it does

any of the following:


          (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. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218 (Ind. 2007)). So long as a sentence is within the statutory

range, the trial court may impose it without regard to the existence of

aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. However, if

the trial court does find the existence of aggravating or mitigating factors, it

must give a statement of its reasons for selecting the sentence it imposes. Id. at

490. But the relative weight or value assignable to reasons properly found, or

those which should have been found, is not subject to review for abuse of

discretion, Gross, 22 N.E.3d at 869, and a trial court is under no obligation to

explain why a proposed mitigator does not exist or why the court found it to be

insignificant, Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans.

denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018   Page 5 of 12
[9]    Bruce contends the trial court abused its discretion by failing to find his

       remorse, the needs of his dependents, and the unlikelihood of his recidivism as

       mitigating circumstances. Because Bruce’s sentence is less than the advisory

       sentence, the trial court was under no obligation to consider mitigating or

       aggravating factors at all. Anglemyer, 868 N.E.2d at 489. Having chosen to do

       so, the trial court was “not obligated to accept as mitigating each of the

       circumstances proffered by the defendant.” Green v. State, 65 N.E.3d 620, 636

       (Ind. Ct. App. 2016), trans. denied. And the burden is on the defendant to

       establish that the trial court overlooked mitigating evidence that is both

       significant and clearly supported by the record. Id.


[10]   Bruce has failed to carry that burden. The trial court did find that Bruce’s

       acceptance of responsibility was a mitigating factor. But the only evidence

       Bruce cites in support of his alleged remorse4 is his testimony at sentencing that

       he “hate[s] [him]self for it.” Appellant’s Br. at 8. William also testified that

       Bruce was remorseful. However, the trial court was not required to give credit

       or weight to that testimony, nor was it required to explain why it did not find

       remorse to be a mitigating factor in this case. Sandleben, 22 N.E.3d at 796.

       Moreover, a trial court’s determination regarding whether a defendant is

       sincerely remorseful is “similar to a determination of credibility,” and




       4
         Bruce points to his lawyer’s statements that Bruce was “screaming, crying for help” and “holding
       [Spencer], cradling her, trying to encourage her to hang on.” Appellant’s Br. at 8. However, his lawyer’s
       statements are not evidence. And, although Bruce’s lawyer refers to “the testimony” on this point, Tr. at
       167, Bruce does not provide us with a citation to such testimony and our review of the transcript has not
       disclosed any such testimony.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018                 Page 6 of 12
       “[w]ithout evidence of some impermissible consideration by the court, we

       accept its determination of credibility.” Pickens v. State, 767 N.E.2d 530, 535

       (Ind. 2002).


[11]   Bruce also failed to carry his burden of establishing that an undue hardship to

       his dependents was a mitigating factor. Although William testified that Bruce

       had provided financial support for his mother in the past, the record also shows

       that Bruce’s one-year-old child is in the custody and care of William, and Bruce

       is in arrearage on child support in the amount of $20,000 for his oldest child, Jr.

       Moreover, a trial court does not abuse its discretion by failing to find hardship

       to dependents as a mitigating factor “absent special circumstances showing that

       the hardship to [the] dependents is ‘undue.’” Benefield v. State, 904 N.E.2d 239,

       247 (Ind. Ct. App. 2009) (citation omitted), trans. denied. Bruce failed to show

       any such “special circumstances.” The trial court did not abuse its discretion

       when it failed to find the needs of Bruce’s dependents as a mitigating factor, nor

       was it required to state its reason refusing to find that mitigating factor.

       Sandleben, 22 N.E.3d at 796.


[12]   And, Bruce has also failed to show that the court abused its discretion when it

       did not find that his character and attitude make it unlikely that he would

       commit another offense. Under Indiana law, likelihood of recidivism is one

       circumstance which a trial court may5 consider as a mitigating factor. I.C. § 35-



       5
        Thus, Bruce errs when he contends that this statute provides that a court “must” consider any factors as
       mitigating circumstances. I.C. § 35-38-1-7.1(b)(8).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018                Page 7 of 12
       38-1-7.1(b)(8). Here, the trial court did consider that factor and specifically

       rejected it as a mitigating circumstance. Tr. at 182-83. The trial court acted

       well within its discretion when it found that mitigating factor to be absent.

       Gross, 22 N.E.3d at 869.


[13]   Finally, Bruce asserts that there was no evidence to support the trial court’s

       conclusion that Bruce’s “violent and aggressive” character was an aggravating

       factor. He points to his lack of criminal history of violence and his own

       statement in his presentence investigation report that “he is someone who

       always walks away from a fight.” Appellant’s App. at 94. However, the trial

       court emphasized the violence of the crime in this case where Bruce, in fact, did

       not “walk away from” the fight but rather “killed the mother of [his] child.” Tr.

       at 180. The trial court noted that this violent crime was committed in the

       presence of Bruce’s one-year-old child and another twelve-year-old child, the

       latter of whom will remember the tragic events. Id. at 184. There was also

       evidence that Bruce and Spencer had a volatile relationship and, unlike the

       defendant in Long v. State, 865 N.E.2d 1031, 1036-37 (Ind. Ct. App. 2007), trans.

       denied, cited by Bruce, Bruce did have a history of multiple interactions with

       law enforcement over the years, including two misdemeanor convictions.

       Appellant’s App. Vol. II at 89-91. The weight and credibility the trial court

       chose to give this evidence is not subject to our review, Gross, 22 N.E.3d at 869,

       and the court was within its discretion when it concluded that Bruce’s violent

       and aggressive character was an aggravating circumstance.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018   Page 8 of 12
[14]   We note that the trial court did make some contradictory statements in

       sentencing, in that it noted that Bruce had “no violence in [his] record,” and

       “no history of this kind of violence.” Tr. at 182. However, even if the trial

       court did abuse its discretion in finding that Bruce had a violent and aggressive

       character which served as an aggravating factor, we would not remand this case

       for resentencing because, as we discuss below, Bruce’s sentence was not

       inappropriate. See, e.g., Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App.

       2013) (citations omitted) (holding that, even “if the trial court has abused its

       discretion in sentencing a defendant, we need not remand for resentencing if we

       conclude that the sentence imposed is not inappropriate”), trans. denied.


                                        Appellate Rule 7(B)
[15]   Bruce contends that his sentence is inappropriate in light of the nature of the

       offense and his character. Article 7, Sections 4 and 6 of the Indiana

       Constitution “authorize[] independent appellate review and revision of a

       sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

       Ct. App. 2007) (alteration original). This appellate authority is implemented

       through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of the nature of his offenses and his character. See Ind. Appellate Rule

       7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

       the trial court’s recognition or non-recognition of aggravators and mitigators as

       an initial guide to determining whether the sentence imposed was

       inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018   Page 9 of 12
       However, “a defendant must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.” Roush, 875

       N.E.2d at 812 (alteration original).


[16]   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, 895 N.E.2d at 1224. 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. The question is not whether another sentence is more

       appropriate, but rather whether the sentence imposed is inappropriate. King v.

       State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court

       “prevail[s] unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[17]   Bruce contends that the nature of the offense does not support the fifteen-year

       sentence.6 Our analysis of the nature of the offense begins with the advisory




       6
         Bruce had requested placement in Community Corrections but, in placing him in the DOC, the trial court
       stated that “any [suspended] or lesser sentence would depreciate the significance of this crime.” Tr. at 185.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018                 Page 10 of 12
       sentence, which was selected by the legislature as an appropriate sentence for

       the crime committed. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App. 2017).

       Here, Bruce’s sentence is two years less than the advisory sentence and it is the

       same number of years he requested at sentencing; this weighs in favor of the

       appropriateness of the sentence. Moreover, when considering the nature of the

       offense, we look at the defendant’s actions in comparison to the elements of the

       offense. Cannon v. State, 99 N.E.2d 274, 280 (Ind. Ct. App. 2018). Here, as the

       trial court noted, Bruce not only killed the mother of his child but did so in the

       presence of that young child and a second child. We cannot say Bruce’s

       sentence was inappropriate in light of the nature of the offense.


[18]   Bruce also maintains that the sentence is inappropriate in light of his character.

       In support of that claim, he points to his lack of felony convictions and the

       support of his friends and family. However, Bruce does have a criminal history.

       His presentence investigation report shows that he has been arrested multiple

       times over the years and he was convicted of carrying a handgun without a

       license, as a Class A misdemeanor, and public intoxication, as a Class B

       misdemeanor. Appellant’s App. Vol. II at 89-91. The report also shows that

       Bruce owes $20,000 in child support and $9,000 in taxes. Id. at 93. Bruce also

       admitted to drinking about a six-pack of beer every day since he was eighteen or




       To the extent Bruce challenges his placement rather than the length of his sentence, he has not pointed to any
       evidence that would convince us that his placement in the DOC is inappropriate. See e.g., Fonner v. State, 876
       N.E.2d 340, 344 (Ind. Ct. App. 2007) (noting that a defendant challenging the placement of a sentence under
       Rule 7(B) must convince us that the given placement is itself inappropriate, rather than show us that another
       placement might be more appropriate).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018                Page 11 of 12
       nineteen years old while he was in the military, but he has never completed a

       treatment program. Id. at 93-94. And Bruce’s brother testified that he believed

       Bruce’s alcohol consumption was related to Bruce’s past crimes and the cause

       of the volatile relationship between Bruce and Spencer. These facts weigh in

       favor of the appropriateness of the sentence.


[19]   Given Bruce’s “volatile” relationship with the victim, the violent and severe

       nature of the offense, the fact that it occurred in the presence of young children,

       and the existence of Bruce’s criminal history of misdemeanor convictions and

       problems with alcohol, we cannot say that his sentence—which is two years less

       than the advisory sentence and is the same length Bruce requested at

       sentencing—is inappropriate. Bruce has not pointed to evidence compelling

       enough to overcome the deference we owe to the trial court. Stephenson, 29

       N.E.3d at 122.


[20]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1430 | November 2, 2018   Page 12 of 12
