MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         FILED
court except for the purpose of establishing                        May 29 2019, 10:02 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Lemon                                        Curtis T. Hill, Jr.
Knox, Indiana                                           Attorney General of Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Matthew Schutz,                                         May 29, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2626
        v.                                              Appeal from the
                                                        Starke Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Kim Hall, Judge
                                                        Trial Court Cause No.
                                                        75C01-1701-MR-1



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019                 Page 1 of 14
[1]   Matthew Schutz (“Schutz”) was convicted of murder1 after a jury trial and was

      sentenced to sixty-five years. On appeal, he raises two issues, which we restate

      as:


                 I.    Whether the State presented sufficient evidence to rebut
                 Schutz’s claim of self-defense; and


                 II.      Whether Schutz’s sixty-five-year sentence is inappropriate.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On January 17, 2017, Laureen Schutz (“Laureen”), Schutz’s wife, agreed to

      drive to Valparaiso with Keanna Knight (“Knight”) to pick up Knight’s fiancé,

      Bradley White (“White”). Tr. Vol. 3 at 13-14. Knight was pregnant with

      White’s child. Id. at 13, 53. Laureen and White were good friends, and Schutz

      was jealous of their friendship. Id. at 82. Knight and Laureen were

      accompanied on their drive to Valparaiso by Laureen Manns (“Manns”),2

      Emily Clemons (“Clemons”), and Sarah Orr (“Orr”). Id. at 18. During the

      drive, Laureen told Knight that she wanted White to fix things at her and

      Schutz’s home, including a collapsed bathroom floor, an inoperative water

      pump, and damaged flooring, carpeting, and drywall. Id. at 15.




      1
          See Ind. Code § 35-42-1-1.
      2
          Manns is also referred to as “Lori” Manns. Tr. Vol. 3 at 16.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 2 of 14
[4]   After they picked up White in Valparaiso, they drove to his mother’s residence,

      where White had parked his Toyota pickup truck. Id. at 19. White retrieved

      tools from his pickup truck to make the repairs that Laureen had requested. Id.

      19-20. White owned a two-inch pocket knife, which he often stowed above the

      visor or in the glovebox of his pickup truck or wore on his waistband. Id.


[5]   Around dusk, White and Knight drove to Laureen and Schutz’s home in North

      Judson. Id. at 21. They entered the home, where they found Schutz, Laureen,

      Clemons, Orr, and Manns. Id. Schutz greeted White with tears and a hug,

      saying, “Where have you been? I needed you a couple of days ago.” Id. at 22.

      Everyone sat in the same small room. Id. Schutz had taken a large amount of

      Klonopin, an anti-anxiety medication, and Suboxone, a pain killer, before

      White and Knight arrived. Id. at 24, 82, 246.


[6]   Schutz began arguing with Laureen about “Peggy,” their former roommate. Id.

      at 23. After Peggy moved out of Schutz’s home, she accused Schutz of trying

      to have “sneaky relations” with her. Id. Schutz was angry with Laureen

      because she had declined Schutz’s request to arrange a phone call with Peggy’s

      boyfriend, Corey. Id. at 23-24. Schutz wanted to assure Corey that he had

      made no sexual overtures to Peggy. Id. at 23. Schutz also wanted to remind

      Corey that he and Peggy owed Schutz money. Id.


[7]   Eventually, Schutz directed his anger toward everyone in the room. Id. at 24.

      After White assured Schutz that Schutz could call Corey tomorrow, Schutz

      became angry with White for “butting in.” Id. at 25. Schutz began threatening


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 3 of 14
      everyone in the room. He screamed that by the end of the night, everyone

      would be “six feet under” and that he knew people who would come over to

      “shoot down the house.” Id. at 26. Schutz directed several threats at White,

      saying, “How much do you want to bet that you will be six-foot [sic] under by

      the end of the night?” Id. at 27-28. Though angered, White remained calm. Id.

      at 28. White said he wanted to leave with Knight but decided to stay to protect

      Laureen and Orr. Id. at 29. Laureen also persuaded White and Knight to stay

      because they were her friends. Id. White tried to calm Schutz down and told

      Schutz that he still wanted to be Schutz’s friend. Id. at 83-84. Later, Schutz

      and Laureen “got into a really high-pitched argument.” Id. at 28.


[8]   At one point, White tried to redirect the conversation toward his offer to make

      repairs to the home. Id. at 29. He went outside to retrieve tools, including a

      hammer. Id. at 29-30. When he re-entered the home, White offered the

      hammer to Schutz and asked Schutz if the hammer was needed to repair the

      water pump, but Schutz ignored White. Id. Schutz often taunted White,

      calling him a “mama’s boy.” Id. at 31. One of the times that Schutz said that

      “everybody would be six feet under,” Schutz pointed directly at Knight. Id. As

      tensions between White and Schutz reached the boiling point, White tore off

      his shirt, which Knight interpreted as an aggressive gesture, but Knight and

      Clemons were able to calm White down. Id. at 30. White went outside to his

      pickup truck to retrieve another shirt and then re-entered the home. Id. Even

      though Schutz’s verbal provocations angered White, he “took it in.” Id. at 31.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 4 of 14
[9]   White went outside another time to defuse the situation. Id. at 32. While

      White was outside, Schutz went to a back room and returned wearing a hoodie

      with his hands tucked in the hoodie; he then pulled out a nine-inch hunter’s

      knife that had a curved and serrated six-inch blade. Id. at 33. When White

      returned to the house, he did not have a knife or other object in his hand. Id. at

      32. When White saw Schutz’s knife, he told Schutz that Schutz was making

      him nervous and asked Schutz to put the knife away. Id. at 33. Schutz refused.

      Id. at 34. As Schutz and White slowly approached each other, Schutz said, “I

      could stab you in the heart right now,” and White said, “Do it.” Id. at 35.

      Laureen then jumped between Schutz and White. Id. at 34. Schutz was still

      holding his knife, but White was not holding his pocketknife as it remained

      hooked to his waistband. Id. at 36, 87. Moments after Laureen jumped

      between Schutz and White, Schutz swung the knife around Laureen and

      stabbed White in the upper right torso. Id. at 37. The knife made a loud

      popping sound as Schutz stabbed White with enough force to fully plunge the

      six-inch serrated blade into White’s chest. Id. at 37, 229-30.3 The knife

      perforated White’s subclavian artery and nerves. Id. at 229. When Schutz

      removed the knife, blood began to spray from White’s chest. Id. at 38. White

      stumbled out of the house and continued to stumble until he collapsed about

      two houses away from Laureen and Schutz’s home. Id. An ambulance arrived




      3
       Thomas Soziok, the forensic pathologist who performed the autopsy on White, testified that there was
      complete penetration of the entire knife blade all the way to the hilt because at the wound entry there was a
      bruise shaped like the hilt of the knife. Tr. Vol. 3 at 230.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019                       Page 5 of 14
       about fifteen minutes later and transported White to the hospital where White

       died. Id. at 39-41. An autopsy confirmed that the stab wound caused White’s

       death. Id. at 231.


[10]   On January 24, 2017, the State filed an information charging Schutz with

       murder under Indiana Code section 35-42-1-1(1), and on February 7, 2017 it

       filed an amended information. Appellant’s App. Vol. 2 at 17-18. Schutz’s jury

       trial commenced on July 30, 2018, during which he raised a claim of self-

       defense. Id. at 12-13; Tr. Vol. 3 at 66; Tr. Vol. 4 at 35-36, 49, 58, 60, 100. The

       jury returned a guilty verdict on August 22, 2018. Appellant’s App. Vol. 2 at 12-

       13, 29; Tr. Vol. 4 at 161-62.


[11]   At the October 3, 2018 sentencing hearing, the State asked the trial court to

       impose the advisory sentence of fifty-five years for Schutz’s murder conviction.

       Tr. Vol. 4 at 187. Schutz asked the trial court to impose a sentence between

       forty-five and fifty-five years. Id. at 191. On October 3, 2018, the trial court

       imposed the maximum sixty-five-year sentence allowed by statute. Appellant’s

       App. Vol. 2 at 30-35. As mitigating factors, the trial court cited Schutz’s mental

       illness; Schutz had been diagnosed with fourteen separate mental illnesses,

       including Explosive Disorder, Conduct Disorder, Paranoia, and Anti-Social

       Personality Disorder. Id. at 32-33. The trial court also cited Schutz’s minimal

       criminal history as a mitigating factor. Id. at 31. Schutz’s criminal record

       included two convictions from the State of New York, a 2002 felony battery

       conviction and a 2009 misdemeanor petit larceny conviction, a 2013 Starke

       County felony conviction for battery resulting in bodily injury to a person less
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 6 of 14
       than fourteen years old, and a 2013 misdemeanor battery resulting in bodily

       injury charge that was dismissed. Appellant’s Conf. App. Vol. 3 at 6-7.


[12]   The trial court found five aggravating factors. First, even though the trial court

       had found Schutz’s mental illness was a mitigating factor, it found his refusal to

       seek voluntary treatment for his mental illness as an aggravating factor.4

       Appellant’s App. Vol. 2 at 32. Second, even though the trial court found that

       Schutz’s criminal history was a mitigating factor, it found the fact that one of

       his crimes involved violence against a child was an aggravating factor. Id.

       Third, it cited Schutz’s intentional abuse of prescription medication. Id. at 33.

       Fourth, the trial court noted Schutz’s threats to the others the night of the

       murder. Id. at 34. Under this aggravating factor, the trial court also noted that

       Schutz killed White while White was unarmed. Id. Fifth, the trial court cited

       Schutz’s lack of appreciation of human life as an aggravating factor, which the

       trial court concluded made Schutz “the most dangerous of all criminal

       defendants.” Id. The trial court found that the aggravating factors outweighed

       the mitigating factors and imposed the sixty-five-year sentence. Id. Schutz now

       appeals.




       4
        From the age of seven until nineteen, Schutz resided in mental health hospitals in the State of New York.
       Appellant’s Conf. App. Vol. 3 at 8, 10. We presume these were involuntary placements, but the record is silent
       on this.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019                       Page 7 of 14
                                         Discussion and Decision

                       I.       Rebutting Schutz’s Claim of Self-Defense
[13]   Schutz claims the State failed to rebut his claim of self-defense, contending that

       there “is substantial evidence in the record to show that Schutz acted in self-

       defense.” Appellant’s Br. at 8. He cites testimony from two defense witnesses,

       Laureen and Clemons, to support his argument. Schutz goes even further in

       arguing that there “was no evidence in the case to negate [Schutz’s] claims of

       self-defense.” Appellant’s Br. at 6, 10 (emphasis added). Schutz, however, does

       not acknowledge the substantial evidence showing that he did not act in self-

       defense. Also, Schutz creates a misleading impression when he claims that all

       witnesses “indicated that [White] was armed with a hammer and his knives

       during the incident.” Id. at 9. Orr testified that White was not armed. Tr. Vol.

       3 at 87. While Knight testified that White had his two-inch pocketknife with

       him during the evening of the incident, she testified that White never removed

       the pocketknife from his waistband and held it for use as a weapon. Id. at 36.5


[14]   Thus, Schutz ignores our well-settled standard of review, which requires us to

       review a challenge to the sufficiency of evidence to rebut a claim of self-defense




       5
         Indiana Appellate Rule 22(C) requires that “[a]ny factual statement shall be supported by a citation to the
       volume and page where it appears in an Appendix, and if not contained in an Appendix, to the volume and
       page it appears in the Transcript or exhibits[.]” Schutz’s statement of facts contains no citation to the
       Appendix or Transcript, and while Schutz provides citations to some factual assertions in his argument,
       twenty other factual assertions are not supported with adequate citations. In addition, Schutz does not
       provide citations to the Record to confirm that he did, in fact, raise a claim of self-defense at trial, the
       centerpiece of his trial strategy and this appeal. See Galvan v. State, 877 N.E.2d 213, 215 (Ind. Ct. App. 2007)
       (appeal dismissed for flagrant violations of the appellate rules).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019                        Page 8 of 14
       the same way we review any claim of insufficient evidence. Ervin v. State, 114

       N.E.3d 888, 895 (Ind. Ct. App. 2018), trans. denied.6 We neither reweigh the

       evidence nor judge the credibility of the witnesses. Id. We consider only the

       probative evidence and reasonable inferences supporting the trial court’s

       decision. Id. We will affirm a conviction if there is substantial evidence of

       probative value such that a reasonable trier of fact could have concluded the

       defendant was guilty beyond a reasonable doubt. Id.


[15]   Indiana’s self-defense statute provides:


                A person: (1) is justified in using reasonable force, including
                deadly force, against any other person; and (2) does not have a
                duty to retreat; if the person reasonably believes that the force is
                necessary to prevent or terminate the other person’s unlawful
                entry of or attack on the person’s dwelling, curtilage, or occupied
                motor vehicle.


       Ind. Code § 35-41-3-2(d).


                To prevail on such claims, a defendant must show he: (1) was in
                a place where he had a right to be; (2) did not provoke, instigate,
                or participate willingly in the violence; and (3) had a reasonable
                fear of death or great bodily harm. When a claim of self-defense
                is raised and finds support in the evidence, the State bears the
                burden of negating at least one of the necessary elements.




       6
        Ind. Appellate Rule 46(A)(6)(b) requires that the facts shall be presented in “accordance with the standard
       of review appropriate to the judgment or order being appealed.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019                      Page 9 of 14
       Ervin, 114 N.E.3d at 896 (internal citations omitted).


[16]   Here, the State rebutted Schutz’s claim of self-defense by showing that Schutz

       did provoke, instigate, or participate willingly in the violence and that he did

       not have a reasonable fear of death or great bodily harm. See Wilson v. State,

       770 N.E.2d 799, 800 (Ind. 2002). White came to Schutz’s home to repair

       flooring, dry wall, and a water pump. Tr. Vol. 3 at 19-20. Soon after White and

       Knight arrived at the home, Schutz began threatening everyone present,

       claiming that before the end of the evening everyone would be “six feet under”

       and that he knew people who would come over to “shoot down the house.” Id.

       at 26. Schutz shouted several of these threats directly at White, saying, “How

       much do you want to bet that you will be six foot [sic] under by the end of the

       night?” and “I could stab you in the heart right now.” Id. at 28. He also

       provoked the situation by taunting White, calling him a “mama’s boy.” Id. at

       31. White made several efforts to defuse the situation. He tried to steer the

       conversation toward topics that would not upset Schutz. Id. at 29. He stepped

       outside to ease tensions with Schutz. Id. at 31-32. Even when the argument

       became heated, White assured Schutz that he wanted to remain friends. Id. at

       83-84. When Schutz brandished the hunting knife, White told Schutz that he

       was making him nervous and asked Schutz to put the knife away, but Schutz

       refused. Id. at 33-34. Moreover, this evidence establishing that Schutz

       provoked the confrontation also negates Schutz’s claim that he did not willingly

       participate in the violence. See Wilson, 770 N.E.2d at 800.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 10 of 14
[17]   The State also rebutted Schutz’s claim that he had a reasonable fear of death or

       great bodily harm. See id. It did so, in part, through the evidence cited in the

       previous paragraph that shows that Schutz, not White, provoked the fight.

       Moreover, even when Schutz stabbed White, White had not reached for his

       pocketknife; it remained hooked on his waistband. Tr. Vol. 3 at 36.

       Accordingly, the State presented sufficient evidence to negate Schutz’s claim of

       self-defense, and we thus affirm Schutz’s conviction for murder.


                                     II.     Inappropriate Sentence
[18]   Schutz also argues that his sixty-five-year sentence is inappropriate under

       Indiana Constitution Article VII, sections 4 and 6 and Indiana Appellate Rule

       7(B). Indiana Appellate Rule 7(B) allows us to revise a sentence if, after due

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

       considering the nature of the offense and the character of the offender.

       Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (2007). The “nature of offense” compares the defendant’s actions with the

       required showing to sustain a conviction under the charged offense, Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the “character of the offender”

       permits a broader consideration of the defendant’s character. Anderson v. State,

       989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied.


[19]   We consider not only the aggravators and mitigators found by the trial court but

       also any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852,

       856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our goal is


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 11 of 14
       to determine whether the appellant’s sentence is inappropriate, not whether

       some other sentence would be more appropriate. Conley v. State, 972 N.E.2d

       864, 876 (Ind. 2012). “Such deference should prevail 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). When we

       review a sentence, we seek to leaven the outliers, not to achieve a perceived

       correct result. Cardwell, 895 N.E.2d at 1225. When considering the nature of

       the offense, the advisory sentence is the starting point in our analysis. Holloway

       v. State, 950 N.E.2d 803, 806 (Ind. Ct. App. 2011).


[20]   Under the nature of offense prong, Schutz claims his sentence is inappropriate

       because his crime is not among the worst of offenses. See Buchanan v. State, 767

       N.E.2d 967, 973 (Ind. 2002); see also Wells v. State, 904 N.E.2d 265, 274 (Ind.

       Ct. App. 2009), trans. denied. He argues that “there was nothing particularly

       egregious about his conduct above and beyond what generally is necessary to

       establish these crimes.” Appellant’s Br. at 12. We disagree.


[21]   Schutz’s attack on the unarmed White was preceded by threats to everyone in

       the home, not just White, that by the end of the evening they would be “six feet

       under” and that he knew people who would come over to “shoot down the

       house.” Tr. Vol. 3 at 26. Schutz directed several threats at White, including,

       saying, “How much do you want to bet that you will be six foot [sic] under by

       the end of the night?” and “I could stab you in the heart right now.” Id. at 27.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 12 of 14
       Schutz ignored White’s pleas that he wanted to remain friends with Schutz. Id.

       at 83-84. When Schutz thrust the six-inch, serrated knife blade into White’s

       torso, the force of the stabbing was so strong that the knife blade plunged its full

       six inches into White’s torso, stopped only by the hilt of the knife. The wound

       was so severe that once the blade was removed, blood sprayed everywhere, and

       White collapsed moments later. Even though no murder is routine, Schutz’s

       crime was especially grisly and showed a palpable disregard of human life.

       Thus, Schutz’s crime was well beyond “what generally is necessary to establish

       these crimes.” See Appellant’s Br. at 12.


[22]   Moreover, describing an offense as amongst the “worst” is not a guideline to

       determine if a worse offender could be imagined. See Buchanan, 767 N.E.2d at

       973. It is always possible to hypothesize a significantly more despicable

       scenario. Id. Although maximum sentences are ordinarily appropriate for the

       worst offenders, we refer generally to the class of offenses and offenders that

       warrant the maximum punishment, and such a class encompasses a variety of

       offenses and offenders. Id. Under this standard, Schutz’s offense qualifies as

       being among the worst of crimes. Schutz has not presented compelling

       evidence that depicts his crime in a positive light because his crime was not

       accompanied by restraint and lack of brutality. See Stephenson, 29 N.E.3d at

       122. Schutz’s sentence was not inappropriate in light of the nature of the

       offense.


[23]   Schutz’s sentence is also not inappropriate under the character of the offender

       prong. His criminal record includes a conviction for battery causing injury to a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 13 of 14
       child. Appellant’s Conf. App. Vol 3 at 6-7. Although Schutz’s mental illnesses

       arouse sympathy, his refusal to seek treatment does not and does not attest to a

       virtuous character. See Stephenson, 29 N.E.3d at 122. Accordingly, Schutz’s

       maximum sixty-five-year sentence is not inappropriate.


[24]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2626 | May 29, 2019   Page 14 of 14
