                                                       Mar 11 2015, 10:20 am




      ATTORNEY FOR APPELLANT                     ATTORNEYS FOR APPELLEE
      P. Jeffrey Schlesinger                     Gregory F. Zoeller
      Appellate Public Defender                  Attorney General of Indiana
      Crown Point, Indiana
                                                 Richard C. Webster
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana



                                      IN THE
          COURT OF APPEALS OF INDIANA

      Matthew Marcus, II,                        March 11, 2015

      Appellant-Defendant,                       Court of Appeals Case No.
                                                 45A03-1407-CR-230
             v.                                  Appeal from the Lake Superior
                                                 Court
                                                 The Honorable Clarence D. Murray,
      State of Indiana,                          Judge
      Appellee-Plaintiff                         Cause No. 45G02-1011-MR-15




      Bailey, Judge.



                                  Case Summary
[1]   Matthew Marcus, II (“Marcus”) challenges the thirty-five year sentence

      imposed upon his plea of guilty to Voluntary Manslaughter, as a Class A
      felony.1 He purportedly raises a single issue of whether the sentence is

      manifestly unreasonable. We strike the brief, reprimand Marcus’s counsel, and

      remand for appointment of competent counsel to present a cogent argument on

      Marcus’s behalf.



                                Facts and Procedural History
[2]   The parties stipulated to the facts of the crime. On November 8, 2010, Marcus

      was at the residence of Tishwanda Reynolds (“Reynolds”). Reynolds refused

      Marcus’s sexual advances and Marcus choked Reynolds to death, using both

      his hands and a belt.


[3]   Reynolds was charged with Murder, but reached a plea agreement with the

      State. On May 6, 2014, Marcus pled guilty to Voluntary Manslaughter. He

      received the maximum sentence possible under the terms of the plea agreement,

      that is, thirty-five years. Counsel was appointed to represent Marcus in this

      appeal.



                                    Discussion and Decision
[4]   At the outset, we observe that there are gross deficiencies in Marcus’s appellate

      brief. Purportedly, a “manifestly unreasonable” sentence was imposed upon

      Marcus. Appellant’s Brief at 1. As a standard of review, counsel offers pre-




      1
          Ind. Code § 35-42-1-3. The offense is now a Level 2 felony.


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      2001 language of Indiana Appellate Rule 17(B), specifically: “A reviewing

      court will not revise a sentence authorized by statute except where such

      sentence is manifestly unreasonable in light of the nature of the offense and

      character of the offender.” Appellant’s Brief at 3. He further directs our

      attention to a quote from Evans v. State, 725 N.E.2d 850, 851 (Ind. 2000): “A

      sentence is manifestly unreasonable when it is clearly, plainly and obviously so.”

      (emphasis added.)


[5]   Counsel does not acknowledge that this Court may be asked to conduct an

      independent sentencing review pursuant to Indiana Appellate Rule 7(B). In the

      argument section of the brief, Counsel continues to refer to a sentence that, in

      his opinion, is “manifestly unreasonable” and he expresses what can best be

      described as his “belief” that the nature of the offense “should not have been

      treated” as an aggravating circumstance because one committing Voluntary

      Manslaughter is not acting under cool reflection. Appellant’s Brief at 4-5.

      Finally, Counsel requests relief of this Court consisting of a determination that

      the sentence is “manifestly unreasonable” together with a remand for the

      imposition of a twenty-five year sentence.


[6]   In 2008, Counsel represented Gregory Davis on appeal, raising two sentencing

      issues. Davis v. State, No. 45A03-0712-CR-557 (Ind. Ct. App. June 13, 2008).

      In part, Counsel argued that Davis’s sentence was “manifestly unreasonable.”

      Slip op. at 2. In companion footnotes, a panel of this Court reminded Counsel

      that the “manifestly unreasonable” standard is “incorrect and outdated” and

      directed Counsel to relevant authority, citing Indiana Appellate Rule 7(B) and

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      Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified in part on other

      grounds, 875 N.E.2d 218 (Ind. 2007). Slip op. at 2, n.3-4.


[7]   In 2014, a panel of this Court was obliged to restate the issue presented for

      appeal and again admonished Counsel that the “manifestly unreasonable”

      standard is obsolete: “The ‘manifestly unreasonable’ standard for reviewing

      sentences and Appellate Rule 17(B) were replaced eleven years ago with the

      ‘inappropriate’ standard under Appellate Rule 7(B). We urge counsel to be

      more careful in the future in preparing briefs to this court.” English v. State, No.

      45A04-1306-CR-322, slip op. at 1, n.1 (Ind. Ct. App. Feb. 14, 2014).


[8]   Again, in 2015, a panel of this Court responded to Counsel’s “manifestly

      unreasonable” argument by re-iterating: “The Indiana Supreme Court replaced

      this standard over a decade ago. The applicable rule is now found in Indiana

      Appellate Rule 7(B)[.]” Thompson v. State, No. 45A04-1405-CR-243, slip op. at

      2, n.1 (Ind. Ct. App. Jan. 7, 2015). As for the argument that the trial court was

      precluded from considering the nature and circumstances as an aggravator

      because the defendant was incapable of deliberation or premeditation when

      acting with sudden heat, the Court found the argument “entirely without

      merit.” Slip op. at 2, n.3.


[9]   Apparently oblivious to the direction of this Court and a decade of legal

      progression, Counsel yet again advocates for a review of his client’s sentence

      under the manifestly unreasonable standard. He wholly fails to present a

      cogent argument with citation to relevant authority. It is within our authority


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       to strike the brief, order the return of attorney’s fees, order Counsel to show

       cause why he should not be held in contempt of court, or refer the matter to the

       Supreme Court Disciplinary Commission. See Keeney v. State, 873 N.E.2d 187,

       190 (Ind. Ct. App. 2007). We strike the brief and remand the matter to the trial

       court for appointment of competent counsel.


[10]   Remanded with instructions.


       Robb, J., and Brown, J., concur.




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