                                                                           FILED
                                                                       Dec 17 2019, 7:05 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Darren Bedwell                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana                                     Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tyler Miller,                                             December 17, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-768
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Grant Hawkins,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G05-1601-MR-2267



Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019                           Page 1 of 9
[1]   Tyler Miller appeals his sentence for murder, attempted robbery as a level 5

      felony, and robbery as a level 3 felony. He also requests a corrected abstract of

      judgment and sentencing order. We affirm and remand.


                                       Facts and Procedural History

[2]   On January 15, 2016, Khushwinder Singh was working as a clerk at the

      Cumberland Express Mart. Brittany Thompson, who planned to begin working

      at the store the following day, was also present. At approximately 7:00 p.m., a

      man entered the store, purchased a cigar, and left. A few minutes later, Miller

      and a third man entered the store, displayed firearms, and stated they were

      robbing the store. Singh was on the phone, “said something in his language,”

      and set the phone down. Transcript Volume II at 119. Miller shot Singh, the

      bullet perforated Singh’s heart, and Singh grabbed his chest and dropped to the

      floor. The men told Thompson to open the register, she was not able to open it,

      and the men left the store. Singh died within minutes as a result of the gunshot

      wound.


[3]   At approximately 7:51 p.m., Miller used his phone to access a news article

      titled “Man dies in far east side shooting.” State’s Exhibit 141. At

      approximately 9:20 p.m., Miller and one of the other men entered a Rich Oil

      station on Brookville Road, and one of the men commanded the store clerk to

      open the register and struck him on the head with a gun. The clerk opened the

      register, and the men took the cash and exited the store. The police located the


      Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019      Page 2 of 9
      vehicle in which the men had fled at 9:32 p.m., set up a perimeter, and soon

      afterwards apprehended the three men.


[4]   On January 20, 2016, the State charged Miller with: Count I, murder; Count II,

      felony murder; Count III, attempted robbery resulting in serious bodily injury

      as a level 2 felony; Count IV, robbery resulting in bodily injury as a level 3

      felony; and Count V, battery by means of a deadly weapon as a level 5 felony.

      The jury found him guilty as charged.


[5]   The court entered judgments of conviction for murder under Count I, robbery

      as a level 5 felony as a lesser included offense under Count III, and robbery as a

      level 3 robbery under Count IV. At sentencing, the prosecutor asked for a

      sentence of sixty years for the murder and an aggregate sentence of seventy-five

      years and argued Miller was the person who shot Singh. Miller’s counsel asked

      for the minimum sentence on each count and concurrent sentences and argued

      that Miller was seventeen years old when the crimes occurred, had no prior

      convictions, graduated from high school, was employed, and was the primary

      caretaker for his mother. The court stated that Miller was the shooter, the

      shooting was needless, and that, given that he had no prior convictions, was a

      high school graduate, and was employed, it was sentencing him to the advisory

      for murder. The court noted that Miller was involved with the robbery within

      two hours of the shooting and sentenced him to consecutive sentences of fifty-

      five years on Count I, five years on Count III, and twelve years on Count IV,

      for an aggregate sentence of 72 years.



      Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019       Page 3 of 9
                                                   Discussion

                                                          I.

[6]   Miller presents two arguments with respect to Count III: the abstract of

      judgment and sentencing order should be corrected to reflect his attempted

      robbery conviction, and his sentence should be reduced in light of Ind. Code §

      35-50-2-1.3.

      A. Correction of Abstract of Judgment and Sentencing Order on Count III

[7]   Miller observes the trial court’s sentencing order and abstract of judgment show

      a conviction for robbery under Count III but that the jury found him guilty of

      attempted robbery. The State charged Miller with attempted robbery under

      Count III, the court instructed the jury on attempted robbery, and the jury

      found him guilty of attempted robbery. We remand for an amended abstract of

      judgment and sentencing order which reflect Miller’s conviction for attempted

      robbery as a level 5 felony under Count III.

      B. Ind. Code § 35-50-2-1.3

[8]   Miller argues that Ind. Code § 35-50-2-1.3(c) prohibited the trial court from

      imposing a sentence above the advisory for his conviction for attempted robbery

      as a level 5 felony under Count III because it ordered that the sentence be

      served consecutive to his other sentences. Ind. Code § 35-50-2-1.3(c) provides:

      “In imposing . . . consecutive sentences for felony convictions that are not




      Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019       Page 4 of 9
      crimes of violence (as defined in IC 35-50-1-2(a))[1] arising out of an episode of

      criminal conduct,[2] in accordance with IC 35-50-1-2 . . . a court is required to

      use the appropriate advisory sentence in imposing a consecutive sentence . . . .”

[9]   We observe that Ind. Code § 35-50-2-1.3(c), referring to the use of “the

      appropriate advisory sentence,” is merely a reference to a former version of Ind.

      Code § 35-50-1-2(c) which capped consecutive sentences for an episode of non-

      violent criminal conduct at “the advisory sentence for a felony which is one (1)

      class of felony higher than the most serious of the felonies for which the person

      has been convicted.” Ind. Code § 35-50-1-2(c) (2014) (emphasis added)

      (subsequently amended). In Robertson v. State, the Indiana Supreme Court

      clarified that Ind. Code § 35-50-2-1.3(c) “was not meant to impose additional

      restrictions on a trial court’s ability to impose consecutive sentences” beyond

      those outlined in Ind. Code § 35-50-1-2(c). 3 871 N.E.2d 280, 285-286 (Ind.

      2007). Effective July 1, 2015, Ind. Code § 35-50-1-2(c) was amended and no

      longer refers to an “advisory sentence.” See Pub. L. No. 238-2015, § 16 (eff.




      1
        Ind. Code § 35-50-1-2(a) provides “‘crime of violence’ means the following: (1) Murder . . . (13) Robbery as
      a Level 2 felony or a Level 3 felony . . . .”
      2
       Ind. Code § 35-50-1-2(b) provides “‘episode of criminal conduct’ means offenses or a connected series of
      offenses that are closely related in time, place, and circumstance.”
      3
        See also Tyler v. State, 903 N.E.2d 463, 468 n.5 (Ind. 2009) (noting the defendant’s claim that the trial court
      erred by running enhanced sentences consecutively and that it had rejected a similar claim in Robertson);
      Pittman v. State, 885 N.E.2d 1246, 1260 n.2 (Ind. 2008) (noting Robertson’s holding that Ind. Code § 35-50-2-
      1.3(c) “permits nonadvisory terms to be ordered consecutively”); Freyn v. State, 884 N.E.2d 901, 902-903
      (Ind. Ct. App. 2008) (noting Robertson and holding that Ind. Code § 35-50-2-1.3 did not prohibit a consecutive
      sentence in excess of the advisory for the defendant’s conviction for domestic battery as a class D felony
      where the defendant did not allege the sentence was limited by Ind. Code § 35-50-1-2).

      Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019                                 Page 5 of 9
       July 1, 2015). Instead, Ind. Code § 35-50-1-2(c) now provides that the

       consecutive sentence for an episode of non-violent criminal conduct “shall not

       exceed the period described in subsection (d).” See id. Ind. Code § 35-50-1-2(d)

       also does not refer to advisory sentences, and it does not limit the total of the

       consecutive terms of imprisonment to which a defendant is sentenced for felony

       convictions arising out of an episode of criminal conduct where the most

       serious crime for which the defendant is sentenced is murder. The language of

       Ind. Code § 35-50-2-1.3(c) to which Miller points appears to be rendered

       obsolete by the current wording of Ind. Code § 35-50-1-2(c). To the extent the

       language of Ind. Code § 35-50-2-1.3(c) was not rendered obsolete, we note that,

       in light of Robertson, the phrase “the appropriate advisory sentence” in Ind.

       Code § 35-50-2-1.3(c) is a reference to Ind. Code § 35-50-1-2(c) and (d) and that

       those sections do not prohibit the trial court’s sentence here under Count III.

                                                          II.


[10]   Miller further claims his aggregate sentence of seventy-two years is

       inappropriate in light of the nature of the offenses and his character. He argues

       that he was seventeen years old at the time of the offenses, he will be seventy-

       one years old at his earliest possible release date, imprisonment shortens an

       inmate’s life expectancy, and in practical terms his sentence is one of life

       imprisonment. He states there is no question that the circumstances of the

       offenses were grave but argues that, while the robberies were planned, the

       murder was not planned and the sudden shooting of Singh was the impulsive



       Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019        Page 6 of 9
       act of a juvenile. He further argues he had no criminal history before this case,

       held a job, and provided care for his mother.


[11]   The State maintains that Miller’s sentence is not inappropriate and notes he

       received the advisory sentence for murder and less than the maximum for

       robbery and attempted robbery, and that Miller’s senseless and unjustifiable

       murder and attempted robbery of Singh and subsequent robbery at the Rich Oil

       station do not warrant a reduced sentence. It argues Miller killed Singh in a

       cold, cruel, and senseless manner and, instead of showing any sort of remorse,

       robbed another gas station a few hours later. It also argues that Miller’s age

       does not warrant a revision of his sentence.


[12]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

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

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[13]   Ind. Code § 35-50-2-3 provides that a person who commits murder shall be

       imprisoned for a fixed term of between forty-five and sixty-five years with the

       advisory sentence being fifty-five years. Ind. Code § 35-50-2-5 provides that a

       person who commits a level 3 felony shall be imprisoned for a fixed term of

       between three and sixteen years with the advisory sentence being nine years.

       Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall


       Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019         Page 7 of 9
       be imprisoned for a fixed term between one and six years with the advisory

       sentence being three years.


[14]   Our review of the nature of the offense reveals that, at approximately 7:00 p.m.,

       Miller and another man entered the Cumberland Express Mart displaying

       firearms. After Singh set his phone down, Miller shot him in the chest, killing

       him. At about 7:50 p.m., Miller accessed a news article regarding the murder of

       Singh. At approximately 9:20 p.m., Miller and another man entered the Rich

       Oil station, struck and threatened the store clerk, and took cash from the

       register. Miller’s murder of Singh was senseless. Even after the first attempted

       robbery resulted in Miller killing Singh, Miller went on to participate in the

       armed robbery of the Rich Oil station.


[15]   Our review of the character of the offender reveals that Miller was born on

       March 17, 1998, and according to the presentence investigation report (“PSI”),

       graduated from high school in 2016, admitted to being suspended due to

       fighting, and was charged with battery resulting in bodily injury as a class A

       misdemeanor in March 2017 but the charge was dismissed. Miller committed

       the offenses in this case approximately two months prior to his eighteenth

       birthday. The PSI also states that he had been employed bussing tables for

       approximately four months prior to his arrest and reported working at least part

       time all twelve months prior to his arrest. The Indiana risk assessment tool

       places Miller in the high risk to reoffend category in the domains of

       neighborhood problems and peer associations. Miller’s mother wrote a letter

       stating that, when she became extremely ill, he took a lot of responsibility as her

       Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019      Page 8 of 9
       in-home caretaker. Miller received the advisory sentence for murder and

       consecutive sentences, which were enhanced but not to the statutory

       maximums, for robbery and attempted robbery. After due consideration, we

       conclude that Miller has not sustained his burden of establishing that his

       sentence is inappropriate.


                                                    Conclusion

[16]   We remand with instructions to enter an amended sentencing order and

       abstract of judgment which reflect Miller’s conviction for attempted robbery as

       a level 5 felony under Count III. We affirm Miller’s sentence.


[17]   Affirmed and remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-768 | December 17, 2019     Page 9 of 9
