MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Feb 09 2018, 9:53 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
O’Connor & Auersch                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard L. Mays,                                         February 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1705-CR-1142
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1308-MR-52124



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018            Page 1 of 8
[1]   Richard Mays (“Mays”) was convicted in Marion Superior Court of felony

      murder and Class A felony robbery.1 Mays was sentenced to sixty years in the

      Department of Correction. He now appeals and argues that his sentence is

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

      offender.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On April 8, 2013, Lori McKinney (“Lori”) drove to Friendly’s Bar in

      Indianapolis where she met Mays inside. The two stayed in the bar for a short

      time and then walked a couple blocks to Lori’s friend Paul Schafer’s (“Schafer”)

      house. Inside Schafer’s house, Lori and Mays met up with Zachary Ray

      (“Ray”) where they concocted a plan to get more money for drugs.


[4]   Lori, Mays, and Ray decided to head to Colonial Inn “[t]o hit a lick.” Tr. Vol.

      II, p. 19. Meaning, Lori would go inside the bar, flirt with a man, and then lure

      him outside where Mays and Ray would be waiting to rob him. The first

      attempt failed, when the man Lori lured out noticed Mays and Ray sitting in

      the back of Lori’s pick-up truck. Lori went back inside the bar where she met

      Michael Campbell (“Campbell”) who bought her a drink. Campbell wanted to

      leave with Lori and head to a nearby bar, so the two exited the Colonial Inn.




      1
        The court dismissed the Class A felony robbery conviction because of double jeopardy concerns. Tr. Vol.
      III, p. 2.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018           Page 2 of 8
[5]   As Lori and Campbell were walking towards Lori’s truck, Mays approached

      Campbell and punched him in the head. Campbell immediately fell to the

      pavement, and Ray began kicking him. The two men went through Campbell’s

      pockets, and Ray took his wallet while Mays grabbed his cell phone. Lori,

      Mays, and Ray got into Lori’s truck, and she drove the three of them away

      from the scene.


[6]   The next day, Lori received several calls from an unknown number. When she

      eventually answered the phone, she recognized Mays’s voice on the line. Mays

      was calling from Campbell’s phone. Lori asked Mays which one of the men hit

      Campbell, and Mays responded, “They call me ‘Knockout’ for a reason.” Tr.

      Vol. II, p. 39. Campbell was in the hospital for over thirty days. He never

      regained consciousness and passed away from his injuries on May 13, 2013.


[7]   On August 9, 2013, Mays was charged with felony murder and Class A felony

      robbery. After several continuances and delays, Mays’s two-day jury trial

      commenced on April 10, 2017. He was found guilty as charged. At the

      sentencing hearing on April 28, the trial court dismissed the Class A felony

      robbery count on double jeopardy concerns and sentenced Mays to sixty years

      in the Department of Correction.


[8]   Mays now appeals his sentence.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018   Page 3 of 8
                                      Discussion and Decision
[9]    Mays argues that his sixty-year sentence is inappropriate in light of the nature of

       the offense and the character of the offender. Specifically, Mays contends that

       his sentence is inappropriate because it was not foreseeable that a single punch

       could result in death. Indiana Appellate Rule 7(B) provides that “[t]he 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.”


[10]   In conducting our review, “[w]e do not look to determine if the sentence was

       appropriate; instead we look to make sure the sentence was not

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing

       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). Ultimately, our principal role is to leaven the outliers rather than

       necessarily achieve what is perceived as the correct result. Id. at 1225. Mays

       bears the burden to establish that his sentence is inappropriate. Grimes v. State,

       84 N.E.3d 635, 645 (Ind. Ct. App. 2017), trans. denied.


[11]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The

       advisory sentence for felony murder is fifty-five years, with a sentencing range




       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018   Page 4 of 8
       of forty-five to sixty-five years. Ind. Code § 35-50-2-3. Thus, Mays’s sixty-year

       sentence is five years more than the advisory.


[12]   Mays’s primary argument is that his sentence was inappropriate in light of the

       nature of the offense because Campbell dying as a result of Mays’s punch was

       not a foreseeable result. Mays cites to Nunn v. State, 601 N.E.2d 334 (Ind. 1992),

       and Maiden v. State, 477 N.E.2d 275 (Ind. 1985) to support his argument.


[13]   In Nunn, the defendant punched a female victim in the back of the head as he

       walked by her. 601 N.E.2d at 336. The victim later died from her injuries, and

       the defendant was charged with murder. On appeal, our supreme court held

       that the evidence was insufficient to sustain a murder conviction, and therefore

       directed the trial court to modify the defendant’s conviction to involuntary

       manslaughter. Id. at 339. The court explained, “Although under other

       circumstances, an intent to kill may be inferred from a single blow, we do not

       believe that it is established here.” Id.


[14]   In Maiden, the defendant punched his four-year-old son in the abdomen. 477

       N.E.2d at 276. The child died from his injuries and the defendant was charged

       with and convicted of voluntary manslaughter. On appeal, the defendant

       argued that he could not have known that a single blow would be fatal, and

       therefore the evidence was insufficient to show that he “knowingly” killed his

       son. Id. at 278. Our supreme court disagreed and noted, “we find that a person

       of reasonable judgment would know that a blow of the severity necessary to

       lacerate the pancreas would be fatal to small child.” Id. at 279.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018   Page 5 of 8
[15]   Mays contends that his case is similar to Nunn because he could not have

       envisioned that striking Campbell once would cause his death and distinguished

       from Maiden because Mays hit a grown man and not a child. However, neither

       Nunn nor Maiden dealt with a challenge to the length of a sentence nor was

       either defendant charged with felony murder. Also, as Mays acknowledges,

       “intent is not germane to his conviction” for felony murder. Appellant’s Br. at

       12. Because we find neither case persuasive, we turn to the nature of the offense

       and Mays’s character.


[16]   Mays was an active participant in the robbery, and he dealt the fatal blow. The

       trial court noted at sentencing, “I find it pretty deplorable that you’re luring

       people out . . . . [a]nd then jumping them and attempting to rob them for

       money.” Tr. Vol. III, p. 17. We agree. Also, the day after the attack, Mays

       bragged about striking Campbell when he told Lori, “They call me ‘Knockout’

       for a reason.” Tr. Vol. II, p. 39. Therefore, even though it may not have been

       foreseeable that Mays’s striking Campbell once would cause his death, he was

       not convicted for his intent. And his actions leading up to and during the

       commission of the crime do not demonstrate that his sentence was

       inappropriate in light of the nature of the offense.


[17]   What is most troubling about this case, however, is the character of the

       offender. As a juvenile, Mays was arrested eleven times and adjudicated

       delinquent on three misdemeanors. As an adult, Mays has been arrested thirty-

       two times, resulting in eleven misdemeanor convictions and five felony

       convictions. We acknowledge that many of these offenses involved alcohol or

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018   Page 6 of 8
       drugs; however, five of Mays’s prior convictions were for taking property that

       did not belong to him, and three were for battery. We find it concerning that

       these offenses share similarities with the underlying events leading to

       Campbell’s death.


[18]   Moreover, Mays’s record also contains several probation violations. His

       probation was revoked in 1996, 1999, twice in 2003, and 2005. Additionally,

       Mays was on probation when he committed the instant offense. Mays’s

       extensive criminal history and numerous probation violations indicate that

       leniency in sentencing has not had a deterrent effect. See Ford v. State, 718

       N.E.2d 1104, 1107 (Ind. 1999). And Mays’s repeated criminal behavior and

       disregard for the law demonstrates his less-than-admirable character and does

       not aid his inappropriateness argument. See Rutherford v. State, 866 N.E.2d 867,

       874 (Ind. Ct. App. 2007) (explaining that “although a record of arrests by itself

       is not evidence of a defendant’s criminal history, it is appropriate to consider

       such a record as a poor reflection on the defendant’s character . . . .”).


[19]   We commend Mays for the programs and classes he has completed while

       incarcerated, the remorse he has expressed, and his stated intent to rehabilitate

       himself. However, we cannot conclude that the trial court’s decision to impose

       a sixty-year sentence for Campbell’s murder is an “outlier” that should be

       reversed under our constitutional authority to review and revise sentences.

       Caraway v. State, 977 N.E.2d 469, 473 (Ind. Ct. App. 2012), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018   Page 7 of 8
                                                 Conclusion
[20]   Based on the facts and circumstances before us, we conclude that Mays has not

       met his burden of persuading us that his sixty-year sentence is inappropriate in

       light of the nature of the offense and the character of the offender. Accordingly,

       we affirm.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-CR-1142| February 9, 2018   Page 8 of 8
