                                                                                 FILED
                                                                            Jan 06 2020, 10:06 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Paul G. Stracci                                            Curtis T. Hill, Jr.
      J. Michael Woods                                           Attorney General of Indiana
      Stracci Law Group, P.C.                                    J.T. Whitehead
      Crown Point, Indiana                                       Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Marcus Lee McCain,                                         January 6, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-1113
              v.                                                 Appeal from the
                                                                 Lake Superior Court
      State of Indiana,                                          The Honorable
      Appellee-Plaintiff                                         Samuel L. Cappas, Judge
                                                                 Trial Court Cause No.
                                                                 45G04-1708-MR-6



      Vaidik, Judge.



                                            Case Summary
[1]   The State charged Marcus Lee McCain with murder for shooting a man in the

      head in a Gary restaurant, an incident that was captured on surveillance video.

      The State also filed a firearm enhancement, alleging that McCain used a

      firearm in the commission of murder. McCain argued self-defense during trial

      Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020                            Page 1 of 20
      but requested a voluntary-manslaughter instruction at the end of trial.

      Thereafter, the jury found McCain guilty of voluntary manslaughter, and the

      trial court found that the firearm enhancement applied. The court then

      sentenced McCain to forty-five years: twenty-seven years for voluntary

      manslaughter enhanced by eighteen years for using a firearm.


[2]   McCain now appeals. He first argues that the trial court erred in imposing the

      firearm enhancement because he was acquitted of the offense (murder) that was

      alleged in the charging information for the enhancement. Because McCain

      doesn’t dispute that (1) voluntary manslaughter is an offense that qualifies for

      the firearm enhancement, (2) voluntary manslaughter is simply murder

      mitigated by evidence of sudden heat, (3) he used a firearm to kill the victim,

      and (4) he is the one who asked for the voluntary-manslaughter instruction at

      the end of trial, we conclude that the court did not err in imposing the firearm

      enhancement. McCain also argues that the court impermissibly enhanced his

      sentence based upon its personal disagreement with the jury’s verdict. Given

      that the court made it clear that it disagreed with the jury’s verdict and found as

      an aggravator that the killing was “cold blooded” and “callous”—which is

      directly at odds with the jury’s finding of sudden heat and therefore an

      improper aggravator as a matter of law—we choose to exercise our authority to

      review and revise sentences and remand this case with instructions for the court

      to sentence McCain to thirty-five years: twenty-five years for voluntary

      manslaughter enhanced by ten years for using a firearm.




      Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020        Page 2 of 20
                             Facts and Procedural History
[3]   In the early morning hours of August 5, 2017, McCain, his cousin, and his

      girlfriend went to Philly Steaks and Fresh Lemonade in Gary. McCain lived in

      Wisconsin but was visiting family in Indiana. Although it was after midnight,

      there were several people in the restaurant at the time, including two young

      children. After McCain and his girlfriend placed their orders and were waiting

      for their food, Marcel Harris and two other men walked into the restaurant.

      According to McCain, he had “never met them a day in [his] life.” Tr. Vol. VI

      p. 224. Two patrons, a husband and wife, noted that the atmosphere of the

      restaurant changed when the three men walked in. McCain observed that one

      of the men with Harris had a gun in his pocket and that Harris was “mean-

      mugging” him. Tr. Vol. VII p. 29. When Harris walked outside the restaurant,

      McCain followed him. The two exchanged words outside, and Harris re-

      entered the restaurant and positioned himself at the door. Meanwhile, McCain

      got his cousin from the car, and the two walked back inside the restaurant. As

      soon as McCain walked back inside, an argument ensued between Harris and

      McCain, with Harris pushing McCain. As shown on the restaurant’s video-

      surveillance system, McCain then grabbed a gun from his cousin’s hand. See

      Ex. 53 (DVD). According to McCain, after he grabbed the gun Harris told his

      friend with the gun to “[s]hoot that shit.” Tr. Vol. VII p. 7. At this point,

      McCain thought that “it was [Harris’s] life or [his] life.” Id. McCain then

      shoved Harris several feet, walked up to him, and pushed the gun into the side

      of his head. See Ex. 53. When Harris appeared to swat away the gun, McCain


      Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020      Page 3 of 20
      shot him in the temple at close range, killing him. Id. McCain, his girlfriend,

      and his cousin ran out of the restaurant. Id.


[4]   Officers from the Gary Police Department responded shortly after the shooting.

      They obtained still images of McCain from the restaurant’s video-surveillance

      system and broadcasted them on Chicago news stations. Shortly thereafter,

      someone from Wisconsin identified McCain as the shooter.


[5]   On August 10, the State charged McCain with murder. Appellant’s App. Vol.

      II p. 27. About a month later, the State added a firearm enhancement:


              Marcus Lee McCain did knowingly or intentionally use a firearm
              in the commission of the offense of Murder, contrary to I.C. 35-
              50-2-11(d).


      Id. at 41. Indiana Code section 35-50-2-11(d) provides, in relevant part:


              The state may seek, on a page separate from the rest of a
              charging instrument, to have a person who allegedly committed
              an offense sentenced to an additional fixed term of imprisonment
              if the state can show beyond a reasonable doubt that the person
              knowingly or intentionally used a firearm in the commission of
              the offense.


      (Emphases added). An “offense” is defined as (1) a felony under Indiana Code

      article 35-42 that results in death or serious bodily injury; (2) kidnapping; or (3)

      criminal confinement as a Level 2 or 3 felony. Id. at (b).


[6]   A four-day jury trial was held in December 2018. During opening statements,

      defense counsel asked the jury to find that McCain acted in self-defense. See Tr.

      Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020        Page 4 of 20
      Vol. III p. 63. McCain testified in his own defense that he was “scared” when

      Harris walked into the restaurant and pushed him and that he grabbed his

      cousin’s gun because he was “scared.” Tr. Vol. VII pp. 5, 6.


[7]   After presentation of the evidence, the trial court held a conference with the

      attorneys to discuss final jury instructions. Defense counsel asked the trial court

      to instruct the jury on Level 2 felony voluntary manslaughter as a lesser-

      included offense of murder. Id. at 71-73; see also Ind. Code § 35-42-1-3

      (providing that a person who knowingly or intentionally kills another human

      being while acting under sudden heat commits voluntary manslaughter and

      explaining that sudden heat is a mitigating factor that reduces what otherwise

      would be murder to voluntary manslaughter). The State did not object. During

      closing arguments, defense counsel mainly argued self-defense, only briefly

      mentioning sudden heat. Tr. Vol. VII pp. 129, 130. After closing arguments,

      the trial court read final instructions to the jury.


[8]   Thereafter, the jury found McCain guilty of voluntary manslaughter. McCain

      then “waive[d] jury trial” on the firearm enhancement, and the jury was

      excused. Id. at 166. As the trial court was about ready to start the firearm-

      enhancement phase, the State pointed out that the charging information for the

      enhancement alleged that McCain used a firearm in the commission of murder,

      not voluntary manslaughter. However, the State argued that this did not matter

      because voluntary manslaughter was “still a qualifying offense” under Section

      35-50-2-11(b). Id. at 164. The State then asked the court if it should amend the

      charging information to say voluntary manslaughter instead of murder.

      Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020        Page 5 of 20
       Defense counsel argued that it did not receive fair notice that the State was

       going to pursue the firearm enhancement for voluntary manslaughter and asked

       the court to find McCain “not guilty on the enhancement.” Id. at 170. The trial

       court took the matter under advisement.


[9]    In later announcing its decision, the trial court stated that the issue was whether

       McCain “had notice to be able to prepare a defense” and that McCain indeed

       had notice, as he was the one who asked for the voluntary-manslaughter

       instruction at the end of trial, voluntary manslaughter is an inherently included

       offense of murder, and defense counsel conceded that he had no defense to the

       firearm enhancement if McCain was convicted of murder. Id. at 186. Finding

       that there was “no blind-siding here that took place if [McCain] got convicted

       of voluntary manslaughter,” the court entered judgment of conviction against

       McCain on the firearm enhancement. Id. at 187. Also during this time, the

       court made several comments that it disagreed with the jury’s verdict, saying,

       for example, “It was the clearest case of . . . cold-blooded murder I’ve seen in

       high definition in 32 years” and “[t]he voluntary manslaughter verdict was a

       gift.” Id. at 186.


[10]   McCain’s sentencing hearing was held in April 2019. At the hearing, the trial

       court continued to make comments that it disagreed with the jury’s verdict,

       saying, for example, “The words that the video spoke to me w[ere] cold

       blooded and callous” and “that was the cleanest cut video I have ever seen of

       my impression of a murder.” Tr. Vol. VIII pp. 49, 51. The court identified

       numerous aggravators: (1) the shooting took place in a public environment with

       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020       Page 6 of 20
fourteen people in close proximity; (2) there were two children present during

the shooting; (3) the defendant endangered at least one other person who was

within the trajectory of the bullet a couple of seconds before the shooting; (4)

Harris “was shot at point-blank range with the gun placed to [his] temple”; (5)

the nature of the shooting was “particularly cold-blooded and callous despite

the fact that [McCain] was convicted of Voluntary Manslaughter wherein heat

of passion was found to be a mitigating circumstance”; (6) McCain has a

criminal history, including two felony convictions; (7) McCain has previously

been incarcerated for thirty days, “which has failed to deter him from a life of

crime”; (8) McCain has seven to eight contacts with the criminal-justice system,

“which reflect adversely on [his] character in that he is not able to live a law-

abiding life;” (9) a Facebook post from McCain adversely reflects on his

character, as it shows that he invites “violence or conflict”: “ni**as kno fu**ing

wit me sh** can get wicked”; and (10) McCain is in need of correctional or

rehabilitative treatment that can only be provided by a penal facility.

Appellant’s App. Vol. III pp. 142-43; Tr. Vol. VIII p. 48; Sentencing Ex. A.

The court identified several mitigators: (1) McCain expressed remorse; (2)

approximately thirty people submitted letters on McCain’s behalf; however, the

court didn’t give this much weight because some of the letters described

McCain as “peacemaking” but he didn’t use those skills on the night of the

shooting; (3) McCain has a two-year-old child; however, the court didn’t give

this much weight either because McCain wasn’t court-ordered to pay support

for his child; and (4) McCain completed some courses in jail, which was

“somewhat of a mitigating factor.” Appellant’s App. Vol. III pp. 143-44; Tr.

Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020        Page 7 of 20
       Vol. VIII pp. 45-47. Although McCain proffered other mitigators, the court

       rejected them. See Appellant’s App. Vol. III pp. 143-44 (rejecting the proposed

       mitigators that the crime is unlikely to recur, that McCain is likely to respond

       favorably to short-term imprisonment, and that McCain accepted

       responsibility). Near the end of its sentencing order, the court included the

       following statement:


               For the record, . . . the high-definition video, from the Court’s
               perspective, depicts a cold-blooded callous execution type
               shooting. The Court acknowledges that the jury found the
               defendant guilty of Voluntary Manslaughter. To be clear, the
               Court is not assessing this sentencing as that of a murder case or
               using the factors of a murder to elevate the sentence of Voluntary
               Manslaughter. In other words, the Court is not punishing the
               defendant for the crime of Murder in the Voluntary
               Manslaughter sentence. However, the manner in which the
               defendant used the gun in such a callous nature as depicted in the
               video, speaks for itself.


       Id. at 144. Finding that the aggravators “substantially” outweigh the mitigators,

       Tr. Vol. VIII p. 54, the court sentenced McCain to twenty-seven years for

       voluntary manslaughter (three years shy of the maximum, see Ind. Code § 35-

       50-2-4.5) enhanced by eighteen years for using a firearm (two years shy of the

       maximum, see I.C. § 35-50-2-11(g)), for a total sentence of forty-five years

       (which is the minimum sentence for murder, see Ind. Code § 35-50-2-3).


[11]   McCain now appeals.




       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020      Page 8 of 20
                                   Discussion and Decision
                                     I. Firearm Enhancement
[12]   McCain first contends that the trial court erred in imposing the firearm

       enhancement because he was acquitted of the offense (murder) that was alleged

       in the charging information for the enhancement. As set forth above, the

       charging information for the firearm enhancement provides as follows:


               Marcus Lee McCain did knowingly or intentionally use a firearm
               in the commission of the offense of Murder, contrary to I.C. 35-
               50-2-11(d).


       Id. at 42. McCain argues that because the State specifically used “Murder” in

       the charging information—as opposed to using the general statutory language

       of “a felony under IC 35-42 that resulted in death or serious bodily injury”—

       and McCain was acquitted of murder, the court could not impose the firearm

       enhancement. Appellant’s Br. pp. 17-18.


[13]   McCain makes various arguments why we should vacate his firearm

       enhancement. We find no merit to any of them. Notably, McCain doesn’t

       dispute that (1) voluntary manslaughter qualifies for the firearm enhancement

       under Section 35-50-2-11(b) because it is “a felony under IC 35-42 that resulted

       in death”; (2) voluntary manslaughter is simply murder mitigated by evidence

       of sudden heat, see, e.g., Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018), reh’g

       denied, cert. denied; and (3) he used a firearm to kill Harris. To the extent

       McCain claims he didn’t have notice that the State was going to pursue the


       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020         Page 9 of 20
       firearm enhancement for voluntary manslaughter, he is the one who asked for

       the voluntary-manslaughter instruction at the final-instructions conference. Up

       until that point, this was a murder/self-defense case only. The trial court did

       not err in imposing the firearm enhancement.1


                                                II. Sentencing
[14]   McCain next contends that the trial court “impermissibly enhanced [his]

       sentence based on an offense for which [he] was acquitted.” Appellant’s Br. p.

       34. “While a trial judge is not prohibited from expressing his personal

       disagreement with a jury’s verdict, a trial judge is prohibited from enhancing a

       defendant’s sentence based upon his personal disagreement with the verdict.”

       Hamman v. State, 504 N.E.2d 276, 278 (Ind. 1987). It is no secret here that the

       trial judge disagreed with the jury’s verdict. After the jury was excused, the

       judge made several comments about the jury’s voluntary-manslaughter verdict:


                    • “I didn’t see any sudden heat. It was the clearest case of,
                      I’d say, cold-blooded murder I’ve seen in high definition in
                      32 years. The only sudden heat comes in from your
                      client’s testimony that he was angry, which I don’t know
                      that I believe to be credible.” Tr. Vol. VII pp. 186-87.

                    • “The voluntary manslaughter verdict was a gift.” Id. at
                      187.




       1
        Although this argument could have been avoided if the State had simply alleged in the firearm-
       enhancement charging information that McCain knowingly or intentionally used a firearm in the
       commission of “a felony under IC 35-42 that resulted in death or serious bodily injury,” we find no error
       given the facts of this case.

       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020                             Page 10 of 20
                    • “I don’t know what your defense is. Your client is on
                      video with a gun shooting the victim in the head at point-
                      blank range. . . . Whether you want to call it voluntary
                      manslaughter or murder, that’s up to you.” Id.

                    • “[I]t’s the most perfectly placed shot you can put to kill
                      somebody. The words that the video spoke to me w[ere]
                      cold blooded and callous.” Tr. Vol. VIII p. 49.

                    • Describing the video as “the cleanest cut video I have ever
                      seen of my impression of a murder.” Id. at 51.

                    • “Mr. McCain, your attorneys did their job for you and
                      minimized your exposure to prison time by obtaining a
                      voluntary manslaughter verdict for you. But when I look
                      at the video, it appears to me to be an execution-type
                      killing.” Id. at 53.

[15]   Notwithstanding these comments, the judge included a statement at the end of

       its sentencing order that although the video “depicted a cold-blooded callous

       execution type shooting,” he was “not punishing McCain for the crime of

       Murder in the Voluntary Manslaughter sentence.” But the judge did punish

       McCain for the crime of murder, at least in part. Sudden heat exists when a

       defendant is provoked by anger, rage, resentment, or terror to a degree sufficient

       to obscure the reason of an ordinary person, prevent deliberation and

       premeditation, and render the defendant incapable of cool reflection. Brantley,

       91 N.E.3d at 572. Although the jury found the existence of sudden heat, the

       judge found as an aggravator that the killing was “cold-blooded” and “callous.”

       The judge’s finding that the killing was “cold-blooded” is clearly at odds with

       the jury’s finding that the killing was done in sudden heat. When a jury finds a

       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020         Page 11 of 20
       defendant guilty of voluntary manslaughter, aggravators like “cold-blooded”

       and “callous” are improper as a matter of law. In addition, we note that the

       judge crafted its sentence so that McCain was sentenced to exactly forty-five

       years, the minimum sentence for murder. It is apparent that the judge

       enhanced McCain’s sentence, in part, to compensate for what he believed to be

       an erroneous verdict. See Gambill v. State, 436 N.E.2d 301, 305 (Ind. 1982).


[16]   When a trial court relies on an improper aggravator, an appellate court has

       several options, including (1) remanding the case to the trial court for a new

       sentencing determination or (2) exercising our authority to review and revise

       the sentence pursuant to Indiana Appellate Rule 7(B). Windhorst v. State, 868

       N.E.2d 504, 507 (Ind. 2007), reh’g denied. We find that the first option is not

       appropriate here given the trial judge’s outspoken disagreement with the jury’s

       verdict. See Phelps v. State, 24 N.E.3d 525, 528 (Ind. Ct. App. 2015) (“We

       believe, however, that the presence of aggravating circumstances justifying an

       enhanced sentence does not wash away the stain left by a trial court’s blatant

       disagreement with the jury verdict at sentencing.”). Accordingly, we choose the

       second option.


[17]   McCain asks us to reduce his sentence to the advisory term of seventeen-and-a-

       half years for voluntary manslaughter and the minimum enhancement of five

       years for using a firearm, for a total sentence of twenty-two-and-a-half years.

       We think a reduction is appropriate, but not one that significant.




       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020     Page 12 of 20
[18]   We agree with McCain that his criminal history is not particularly weighty or

       similar to the present offense to justify an enhanced sentence. Although

       McCain, who was thirty years old at the time of sentencing, has prior

       convictions, they are mostly related to marijuana (two felonies for

       manufacture/deliver THC, one misdemeanor for possession of THC, and one

       misdemeanor for disorderly conduct). In addition, McCain’s longest period of

       incarceration before the shooting was thirty days. But what is particularly

       troubling about this shooting is that it occurred in a restaurant with numerous

       people present, including two young children. Moreover, as the trial court

       noted, although Harris was the first to push McCain, McCain had several

       opportunities to leave the restaurant but didn’t. See Appellant’s App. Vol. III p.

       143 (“[T]he defendant had three (3) opportunities to leave the restaurant and

       use his ‘peace making skills’ to avoid the killing of the victim, which the

       defendant failed to avoid.”). These circumstances justify an enhanced sentence.

       We therefore remand this case with instructions that McCain’s sentence be

       vacated and that the trial court sentence him to thirty-five years: twenty-five

       years for voluntary manslaughter enhanced by ten years for using a firearm.


[19]   Affirmed in part, reversed and remanded in part.


       Najam, J., concurs.


       Tavitas, J., concurring in part and dissenting in part, with separate opinion.




       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020      Page 13 of 20
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Marcus Lee McCain,                                         Court of Appeals Case No.
                                                                  19A-CR-1113
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Tavitas, Judge, concurring in part and dissenting in part.


[20]   I respectfully concur in part and dissent in part.


[21]   I agree with the outcome of the majority’s decision regarding the gun

       enhancement. There was a variance here between the charging information

       and the evidence presented. Our Supreme Court has held:


               Because the charging information advises a defendant of the
               accusations against him, the allegations in the pleading and the
               evidence used at trial must be consistent with one another.
               Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992). A
               variance is an essential difference between the two. Mitchem v.
               State, 685 N.E.2d 671, 677 (Ind. 1997). Not all variances,
               however, are fatal. Id. Relief is required only if the variance (1)
               misled the defendant in preparing a defense, resulting in
               prejudice, or (2) leaves the defendant vulnerable to future
               prosecution under the same evidence. Winn v. State, 748 N.E.2d
               352, 356 (Ind. 2001).


       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020                    Page 14 of 20
       Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014).


[22]   Both murder and voluntary manslaughter fell within the offenses listed in the

       gun enhancement statute. Moreover, McCain requested the voluntary

       manslaughter instruction as a lesser included offense of murder. McCain

       should not have been surprised or misled by the variance, and his defenses did

       not change. The variance also did not leave McCain vulnerable to future

       prosecution under the same evidence.


[23]   As for the reduction in McCain’s sentence, I respectfully disagree. I

       acknowledge the trial court’s statements, which are quoted in the majority’s

       opinion. The trial court, however, also stated in its sentencing order:


               The Court acknowledges that the jury found the defendant guilty
               of Voluntary Manslaughter. To be clear, the Court is not
               assessing this sentencing as that of a murder case or using the
               factors of a murder to elevate the sentence of Voluntary
               Manslaughter. In other words, the Court is not punishing the
               defendant for the crime of Murder in the Voluntary
               Manslaughter sentence. However, the manner in which the
               defendant used the gun in such a callous nature as depicted in the
               video, speaks for itself.


       Appellant’s App. Vol. III p. 147. In determining McCain’s sentence, the trial

       court specifically identified numerous aggravators and several mitigators and

       found that the aggravators outweighed the mitigators. The trial court then

       sentenced McCain to a total of forty-five years in the DOC, which is five years

       less than the maximum possible sentence.



       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020       Page 15 of 20
[24]   The majority relies on Gambill v. State, 436 N.E.2d 301 (Ind. 1982), which I find

       distinguishable. In Gambill, although the defendant was charged with murder,

       he was convicted of voluntary manslaughter. At sentencing, the trial court

       stated:


                 “I think that there are some statutory aggravating circumstances.
                 I think that the evidence shows that the defendant is in need of
                 correctional or rehabilitative treatment that can be best provided
                 by his commitment to a penal facility, and I think an imposition
                 of a reduced sentence or a suspension of the sentence and
                 imposition of probation would depreciate the seriousness of the
                 crime. So, there are those things here in my judgment.


                 “* * * I think the facts of the occurrence justify, and the evidence
                 would justify a conviction of murder. I think in fact that was the
                 offense committed. The jury, as it had a right to do, returned a
                 verdict of voluntary manslaughter for whatever reason, and I
                 think it was not the right verdict. Further than that I think the
                 police did an exemplary job of developing this case.”


       Gambill, 436 N.E.2d at 304.


[25]   Our Supreme Court took issue with the trial court’s sentencing because the trial

       court’s statement was “deficient in that it merely repeats the conclusory

       language of Ind. Code s 35-4.1-4-3 (35-50-1A-3) (Burns 1979) without stating

       the facts through which the conclusions were reached.” Id.


                 The trial court’s statement of reasons for imposing an enhanced
                 sentence fails to provide this Court with facts enabling it to draw
                 a conclusion as to the reasonableness of the sentence. More
                 importantly, it also manifests that the trial court enhanced the
                 sentence by reason of a consideration that is beyond the pale of
       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020          Page 16 of 20
               his authority. * * * * * It is clear that the trial court enhanced the
               sentence to compensate for what he believed to be an erroneous
               verdict. In so doing, he invaded the province of the jury.


       Id. at 304-05.


[26]   Unlike Gambill, this trial court entered a very detailed sentencing statement with

       numerous valid aggravators. The trial court also specifically stated that it was

       “not assessing this sentencing as that of a murder case or using the factors of a

       murder to elevate the sentence of Voluntary Manslaughter.” Appellant’s App.

       Vol. III p. 147. Accordingly, I find Gambill distinguishable.


[27]   I find this case is more like our Supreme Court’s opinion in Wilson v. State, 458

       N.E.2d 654, 656 (Ind. 1984), which our Supreme Court decided after Gambill.

       As in Gambill, the defendant in Wilson was charged with murder and convicted

       of voluntary manslaughter. At sentencing, the trial court stated:


               “All right, Mr. Wilson, stand to the microphone. This was a
               brutal killing. You face, when you went into trial, you faced a
               maximum of sixty (60) years for this, minimum of thirty (30)
               years.


               Your lawyer performed brillantly (sic) and got you substantially
               less. It does not change the brutal nature of this killing. To give
               the minimum sentence in this case would be a terrible thing for
               me to do. It would be a terrible thing to you. It would be a
               terrible thing to me. I couldn’t live with myself do (sic) that.


               Now, there are a number of things that we have to do to filter out
               the personal feelings in sentencing. There shouldn’t be any
               vindictiveness on my part when I sentence you; so we establish
       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020         Page 17 of 20
        standards to filter out those personal feelings from the sentencing
        process.


        There are two (2) aggravating factors I find[:] one that was
        imposition of a reduced sentence would depreciate the
        seriousness of the crime; and the other aggravating factor is that
        the victim of the crime was infirm in that she was an unarmed
        woman in a confrontation with an armed man.


        There are no mitigating factors.


        The finding that the jury made on sudden heat was an attribute to
        your lawyer. He is so good that that jury just couldn’t find
        against him on those facts except voluntary manslaughter, and
        they gave you every benefit of every possible break they could
        look for and find. But there are no mitigating factors.


        I’m not taking it into consideration perceived perjury as was
        approved in Wolf v. State, perceived perjury has to be so blatant
        and so clear on the record that . . . there can be no argument
        about it. That’s not necessarily the case here. And again you get
        the benefit of the doubt because it is not clear perjury.


        In assessing additional penalty for the aggravating factors, I find
        that additional five (5) years to the presumptive sentence is
        adequate. For that reason, you’re now sentenced to the
        Department of Corrections for classification and confinement in
        a maximum security facility for a period of fifteen (15) years.
        Costs are assessed against the defendant.


        There are no mitigating factors. There are two (2) aggravating
        factors that I have previously mentioned.”


Wilson, 458 N.E.2d at 655-56.

Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020       Page 18 of 20
[28]   On appeal, our Supreme Court held:


               In the case now before us the judge does entertain a degree of
               skepticism regarding the evidence of sudden heat and the success
               which defense counsel had with the jury through use of his
               persuasive talents. He is not however so resolutely opposed to
               the jury verdict as was the case in Gambill. Consequently we find
               that the statements of the trial judge were within the proper scope
               of his authority to make an evaluative statement of the
               circumstances surrounding the crime, and did not constitute an
               invasion of the province of the jury or render the enhancement
               suspect.


       Id. at 656.


[29]   As in Wilson, although the trial court did make some statements expressing

       skepticism of the voluntary manslaughter conviction, I find nothing improper

       regarding the trial court’s actual sentencing of McCain. Discussing the brutal

       nature of McCain’s offense is part of the review the trial court may properly

       perform; the trial court may consider the nature of the offense in imposing a

       sentence. See Ind. Code 35-38-1-7.1(c); Gomillia v. State, 13 N.E.3d 846, 853

       (Ind. 2014) (“Generally, the nature and circumstances of a crime is a proper

       aggravating circumstance.”). The trial court was very specific regarding the

       aggravators and mitigators in this case. The trial court made it clear that it was

       following the law and basing the sentence upon those aggravators and

       mitigators. As in Wilson, given the nature and circumstances of this voluntary

       manslaughter offense, McCain’s prior two felony convictions, and the other

       proper aggravators and mitigators, I do not find that the trial court abused its


       Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020      Page 19 of 20
discretion, especially in light of the fact that the trial court did not impose the

maximum sentence. Moreover, I do not find this sentence inappropriate. I

would affirm.




Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020        Page 20 of 20
