MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                             Aug 29 2016, 6:04 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                         CLERK
                                                              Indiana Supreme Court
court except for the purpose of establishing                     Court of Appeals
                                                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                    Gregory F. Zoeller
Crown Point, Indiana                                     Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyler Matthew McAfee,                                    August 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1602-CR-431
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1503-MR-1



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 1 of 12
                                       Statement of the Case
[1]   Tyler Matthew McAfee (“McAfee”) appeals his sentence imposed following his

      guilty plea to Level 5 felony reckless homicide1 and Level 6 felony criminal

      recklessness.2 The trial court sentenced McAfee to five years for his Level 5

      felony reckless homicide conviction and one and one-half years for his Level 6

      felony criminal recklessness conviction, and it ordered that the two sentences be

      served consecutively. McAfee now appeals his sentence, arguing that his

      aggregate six and one-half year sentence is inappropriate. Concluding that

      McAfee has failed to show that his sentence is inappropriate, we affirm his

      sentence.


[2]   Affirmed.


                                                     Issue
                 Whether McAfee’s sentence is inappropriate pursuant to Indiana
                 Appellate Rule 7(B).
                                                     Facts
[3]   On March 3, 2015, McAfee stabbed and killed Alton Bradley (“Bradley”) and

      stabbed and injured Matthew Smolek (“Smolek”). The facts of McAfee’s

      crimes are set out in the following stipulated factual basis, to which McAfee

      and the State agreed when he pled guilty:




      1
          IND. CODE § 35-42-1-5.
      2
          I.C. § 35-42-2-2.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 2 of 12
        3. That on March 3, 2015, TYLER MATTHEW MCAFEE was
        driving a vehicle with three passengers in the area of 142nd
        Avenue and Lauerman Road in Cedar Lake, Lake County,
        Indiana.

        4. Throughout the time that TYLER MATTHEW MCAFEE
        was driving the vehicle on that date, TYLER MATTHEW
        MCAFEE had possession of a stainless steel, double edged knife
        that measured approximately ten (10) inches in length with a
        blade that was approximately five and a half (5½) inches in
        length and a handle that was wrapped in black electrician’s tape.

        5. On said date and said location, victims Alton Bradley
        (deceased) and Matthew Smolek were walking in the roadway
        when there was a two-car vehicle crash involving cars driven by
        TYLER MATTHEW MCAFEE and Dakota Young.

        6. Matthew Smolek broke a passenger side window of the car
        TYLER MATTHEW MCAFEE was driving by using his
        flashlight.

        7. All of the passengers of TYLER MATTHEW MCAFEE’S
        car fled the scene.

        8. Following the car accident, there was a verbal altercation that
        escalated into a physical altercation.

        9. At a point in the tumult, TYLER MATTHEW MCAFEE
        grabbed the knife in [his] driver’s door compartment.

        10. A physical struggle ensued in the road in the area of the
        accident that involved TYLER MATTHEW MCAFEE and
        Matthew Smolek with other individuals in the immediate area
        who were unknown to TYLER MATTHEW MCAFEE.

        11. A neutral third party looked out the window and saw a group
        of five or six people physically interacting in the street.




Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 3 of 12
              12. Alton Bradley was one of those people, and at some point, he
              made a quick movement to intervene, causing him to come close
              to TYLER MATTHEW MCAFEE.

              13. Around this time, TYLER MATTHEW MCAFEE was
              swinging the knife in a wild, uncontrolled fashion, and stabbed
              both Matthew Smolek and Alton Bradley.

              14. Alton Bradley suffered three stab wounds, one to the chest
              under the right clavicle which penetrated the lung and
              brachiocephalic artery, a second superficial wound of the back, in
              the upper thoracic spine area, and a third superficial wound to
              the posterior left shoulder.

              15. Matthew Smolek suffered two stab wounds, one under the
              left arm and one on the left side of his chest.

              16. As a result of the single puncture wound to his chest, Alton
              Bradley died.

              17. Matthew Smolek suffered serious injury, including a deep
              laceration requiring stitches.


      (App. 84-85).


[4]   The State initially charged McAfee with murder and Level 3 felony aggravated

      battery. The State later filed an amended charging information, adding counts

      of Level 2 felony voluntary manslaughter; Level 5 felony involuntary

      manslaughter; Level 5 felony reckless homicide; and Level 6 felony criminal

      recklessness.


[5]   Thereafter, in November 2015, McAfee entered into a written plea agreement,

      in which he agreed to plead guilty to Level 5 felony reckless homicide and

      Level 6 felony criminal recklessness in exchange for the State’s dismissal of the

      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 4 of 12
      remaining four charges. The parties agreed that sentencing would be open to

      the trial court’s discretion. The parties also agreed to the stipulated factual

      basis, as set forth above. During the guilty plea hearing, McAfee pled guilty to

      the Level 5 felony reckless homicide and Level 6 felony criminal recklessness

      charges, and the trial court took the pleas under advisement.


[6]   Prior to sentencing, the trial court received multiple support letters from

      McAfee’s family and numerous letters from Bradley’s family and friends. On

      the day of the January 26, 2016 sentencing hearing, McAfee filed a sentencing

      memorandum in which he attached post-crime excerpts of Facebook comments

      from Bradley’s family and friends that he contended “indicate[d] there was

      much more to the situation than police reports had disclosed and newspapers

      [had] reported.” (App. 91). McAfee also discussed the nature of his offenses

      and suggested that he had acted in self-defense. He claimed that the car in front

      of him “slammed on its brakes directly in front of [him,]” causing him to hit the

      other car. (App. 93). He also asserted that “[t]here [wa]s not one iota of

      evidence that indicate[d] that [he] in any way acted aggressively toward any

      individual” until after Smolek broke his car window and after the altercation

      with the other individuals. (App. 98). McAfee also attached an affidavit from a

      person who witnessed part of the events of the crimes. McAfee asked the trial

      court to consider certain mitigating factors, including his guilty plea, his

      acceptance of responsibility, and the fact that he had “acted under strong

      provocation.” (App. 96). He also argued that his prior felony offense should

      not be considered as an aggravating factor because it was “completely unrelated


      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 5 of 12
      to the nature and circumstances of the event resulting in [McAfee’s] pleas of

      guilt in this case.” (App. 97). McAfee requested that the trial court sentence

      him to concurrent advisory terms for each felony (or an aggregate sentence of

      three years) and to suspend all but the time he had already served in pretrial

      incarceration and place him on probation.


[7]   During the sentencing hearing, both parties presented evidence, including

      witnesses and exhibits, that focused on the facts surrounding the nature of the

      offenses and the facts leading up to the night of the crimes. For example, the

      State questioned McAfee’s claim that the vehicle in front of McAfee’s vehicle

      intentionally stopped and caused him to hit the other vehicle. After McAfee’s

      father made reference to McAfee acting in self-defense and asserted that there

      was no evidence regarding his son’s intent, the trial court had McAfee’s counsel

      clarify that McAfee understood that he was waiving a claim of self-defense by

      pleading guilty. Additionally, the State introduced copies of files from

      McAfee’s cell phone, which included: (1) texts messages, which were sent the

      evening before the crimes, stating that he and three others were “[b]outta f***

      up half of [C]edar [L]ake[;]” and (2) a “selfie” photograph, which was taken on

      the morning of the crimes, of McAfee holding up the knife used in the crimes.

      (State’s Sent. Ex. 1 at 7); (Tr. 79).


[8]   When sentencing McAfee, the trial court explained that it would determine “an

      appropriate sentence given the nature and circumstances of the event that

      occurred and the character of the defendant, [which were] two broad factors



      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 6 of 12
      that [it] would consider for any particular sentence.” (Tr. 114). The trial court,

      when addressing the nature of the case, stated:


              I believe it’s quite clear that the contact, the accident or the
              incident that took place when these cars collide[d] or something
              occurred was not happenstance. You being in Cedar Lake, I
              think it’s quite clear, is not just [you] happen to be driving around
              . . . What I do gather here is that this is no happenstance
              encounter. You were there for a particular purpose in my
              guesstimate is that that particular purpose has something to do
              with the occupants in one or both cars that were involved here.

      (Tr. 112-13). The trial court acknowledged that Smolek had broken McAfee’s

      car window, but it also pointed out that McAfee had been carrying a knife that

      he ultimately used and that resulted in the death of seventeen-year-old Bradley

      and serious injury to Smolek. The trial court stated that while McAfee’s actions

      may have had “unintended consequences, all this was preventable[.]” (Tr.

      117).


[9]   When discussing McAfee’s character and aggravating circumstances, the trial

      court gave significant weight to his criminal history. The trial court pointed out

      that McAfee, who was nineteen years old when he committed the current

      offenses, had been convicted of Class D felony theft just two years prior. The

      trial court noted that McAfee had pled guilty to the theft charge in exchange for

      the dismissal of a Class B felony robbery resulting in bodily injury charge. The

      trial court also noted that, although McAfee had this one conviction only, it

      “would never ignore that because of the short gap in time from the time

      [McAfee] w[as] eventually released from that case to the time [he] kill[ed]

      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 7 of 12
       somebody.” (Tr. 116). The trial court stated that it had shown McAfee “great

       leniency in allowing that robbery to go do[w]n[] to a theft” and “[f]urther

       leniency by allowing [him] to serve that out . . . at home.” (Tr. 116). The trial

       court found that the leniency shown to McAfee had “absolutely no deterrent

       effect” on him and his “future criminal conduct[,]” and it determined that this

       was an aggravating circumstance. (Tr. 116). In regard to mitigating

       circumstances, the trial court recognized McAfee’s guilty plea and his

       admission of responsibility as such.


[10]   The trial court imposed a five (5) year sentence for McAfee’s Level 5 felony

       reckless homicide conviction and a one and one-half (1½) year sentence for his

       Level 6 felony criminal recklessness conviction. Additionally, the trial court,

       noting that McAfee’s actions involved two separate victims, ordered that these

       sentences be served consecutively in the Department of Correction. McAfee

       now appeals.


                                                   Decision
[11]   McAfee contends that his aggregate six and one-half year sentence for his Level

       5 felony reckless homicide and Level 6 felony criminal recklessness convictions

       is inappropriate. He requests this Court to reduce both of his sentences to the

       advisory terms and to order that they be served concurrently, resulting in an

       “aggregate sentence of three years, with a portion to be served on probation.”

       (McAfee’s Br. 10).




       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 8 of 12
[12]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is

       inappropriate ultimately turns on “the culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case.” Id. at 1224.


[13]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, McAfee pled guilty to Level 5 felony reckless homicide and Level 6

       felony criminal recklessness. A Level 5 felony has a range of one (1) to six (6)

       years with an advisory sentence of three (3) years. I.C. § 35-50-2-6(b). A Level

       6 felony has a range of six (6) months to two and one-half (2½) years with an

       advisory sentence of one (1) year. I.C. § 35-50-2-7(b). The trial court imposed a

       five (5) year sentence for McAfee’s Level 5 felony reckless homicide conviction

       and a one and one-half (1½) year sentence for his Level 6 felony criminal

       recklessness conviction. Due to the existence of two separate victims, the trial

       court ordered that the two sentences be served consecutively.


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[14]   The nature of McAfee’s offenses involved him waving a knife at individuals

       that resulted in the death of one young man and serious injury to another.

       McAfee acknowledges that his offenses resulted in “a tragedy for all those

       involved and their families.” (McAfee’s Br. 7). Nevertheless, he seems to

       minimize the nature of the offense and contends that his aggregate sentence is

       inappropriate because Smolek, Bradley, and the individuals in the other car

       “instigated the confrontation with [him.]” (McAfee’s Br. 7). He suggests that

       he committed his reckless homicide and criminal recklessness offenses because

       “[w]hat began as an automobile collision when the car in front of [him]

       suddenly came to a stop, quickly escalated to a violent confrontation when

       Smolek bashed McAfee’s car windows in with a flashlight” and five individuals

       “physically attacked him.” (McAfee’s Br. 7, 8). The trial court, however,

       considered these asserted facts when sentencing McAfee, and it recognized

       McAfee’s role and actions that resulted in Bradley’s death and Smolek’s injury.


[15]   Turning to McAfee’s character, we—as did the trial court—acknowledge that

       McAfee accepted responsibility and pled guilty. McAfee contends that his

       character should be reviewed favorably because he had support from family and

       a job. While that is commendable, we note that the trial court took his family

       support into consideration, recognizing that “[s]upport [wa]s a big deal because

       certainly support is something [McAfee] w[ould] need when [he is] eventually

       out of incarceration.” (Tr. 112). The trial court also recognized that “many

       times . . . notwithstanding that support, people still continue to screw up.” (Tr.

       112).


       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 10 of 12
[16]   McAfee also contends that his criminal history “should not hold great

       aggravating weight in evaluation of his character” because it was “unrelated to

       the current offenses.” (McAfee’s Br. 10). We disagree. First, to the extent that

       McAfee appears to be challenging the weight the trial court gave to his criminal

       history, such an argument is not subject to appellate review. See Anglemeyer v.

       State, 868 N.E.2d 482, 491 (Ind. 2007) (holding that the relative weight or value

       assignable to aggravating circumstances is not subject to review for abuse of

       discretion), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Moreover, the trial

       court explained why it considered McAfee’s prior conviction to be a significant

       aggravating circumstance and a negative reflection of his character.

       Specifically, the trial court explained that it had shown “great leniency” with

       his prior conviction and sentence, yet McAfee had disregarded that chance and,

       less than two years later, had ended up killing a person. (Tr. 116). The trial

       court stated that McAfee “ha[d] no business being back here again” and that his

       prior sentence was the trial court’s “effort to try to rehabilitate [him].” (Tr.

       118). Aside from this disregard for the law and failure to reform, the

       presentence investigation report also reveals that McAfee has a history of daily

       marijuana use from the time he was fifteen years old until just prior to his

       arrest.


[17]   Lastly, McAfee asserts—without analysis—that his crimes were “essentially a

       single episode of criminal conduct” and should have been ordered to be served

       concurrently. (McAfee’s Br. 9). Because McAfee makes no cogent argument to

       support this assertion, he has waived appellate review of the argument. See Ind.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-431 | August 29, 2016   Page 11 of 12
       Appellate Rule 46(A)(8)(a). Waiver notwithstanding, the presence of multiple

       victims is an aggravating circumstance that justifies the imposition of

       consecutive sentences. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)

       (explaining that “[w]hether the counts involve one or multiple victims is highly

       relevant to the decision to impose consecutive sentences”). Accordingly, we

       reject his assertion that the trial court’s imposition of consecutive sentences was

       inappropriate.


[18]   McAfee has not persuaded us that his aggregate six and one-half year sentence

       for his Level 5 felony reckless homicide and Level 6 felony criminal

       recklessness convictions is inappropriate. Therefore, we affirm the trial court’s

       sentence.


[19]   Affirmed.


       Bradford, J., and Altice, J., concur.




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