MEMORANDUM DECISION                                                          FILED
                                                                        Apr 05 2016, 9:22 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
                                                                              and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Thomas W. Vanes                                           Gregory F. Zoeller
Crown Point, Indiana                                      Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melvin Macon,                                             April 5, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A05-1506-CR-707
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Clarence D.
Appellee-Plaintiff.                                       Murray, Judge
                                                          Trial Court Cause No.
                                                          45G02-1309-FA-26



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016              Page 1 of 6
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Melvin Macon (Macon), appeals his sentence following

      his guilty plea for two Counts of attempted aggravated battery, Class B felonies,

      Ind. Code § 35-42-2-1.5 (2013).


[2]   We affirm.


                                                     ISSUE

[3]   Macon raises one issue on appeal, which we restate as follows: Whether his

      sentence was inappropriate in light of the nature of the offense and his

      character.


                           FACTS AND PROCEDURAL HISTORY

[4]   On July 24, 2013, while responding to a report of shots fired in the area,

      Officers Sergio Garcia and Donya Rimmer of the Gary Police Department,

      both wearing full police uniform and traveling in a fully marked police cruiser,

      observed a man, later identified as Macon, carrying a handgun equipped with a

      laser sight. The officers ordered Macon to stop. Instead of stopping, Macon

      pointed his handgun at the officers’ vehicle and fired several shots. Macon fled

      and was later apprehended.


[5]   On September 5, 2013, the State filed an Information charging Macon with two

      Counts of attempted murder, Class A felonies; two Counts of attempted

      aggravated battery, Class B felonies; and two Counts of attempted battery by

      means of a deadly weapon, Class C felonies. On February 11, 2015, Macon

      Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016   Page 2 of 6
      pled guilty to both Counts of attempted aggravated battery, and, pursuant to the

      terms of the plea agreement, the State dismissed the remaining Counts and

      agreed that Macon’s sentences would run concurrently.


[6]   At a sentencing hearing on May 20, 2015, the trial court found the

      circumstances of the crime to be a “significant aggravator” because there were

      multiple victims, the victims were police officers engaged in their lawful duties,

      and Macon’s handgun was equipped with a laser sight. (Transcript p. 33). In

      addition, the trial court identified Macon’s criminal history and his “numerous

      write-ups” in Lake County Jail since being incarcerated for the present offense

      as aggravators. (Tr. pp. 33-34). As for mitigating circumstances, the trial court

      noted Macon’s guilty plea, his expressions of remorse, the fact that he

      completed the 12-step chemical dependency program, and his history of mental

      illness or learning disabilities. At the conclusion of the hearing, the trial court

      sentenced Macon to 14 years of imprisonment for each Count, with two years

      suspended to probation, to be served concurrently.


[7]   Macon now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[8]   Macon argues that his sentence is inappropriate in light of the nature of the

      offense and his character. It is well settled that “sentencing is principally a

      discretionary function in which the trial court’s judgment should receive

      considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

      Although a trial court may have acted within its lawful discretion in

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      determining a sentence, our court may revise the sentence 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.” Appellate Rule 7(B). With respect to Appellate Rule 7(B),

      “[t]he principal role of appellate 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, 895 N.E.2d at 1225. Ultimately,

      “whether we regard a sentence as appropriate at the end of the day turns on our

      sense of the culpability of the defendant, the severity of the crime, the damage

      done to others, and myriad other factors that come to light in a given

      case.” Id. at 1224. In making this determination, we focus on the length of the

      aggregate sentence and the manner in which it is to be served. Id. The

      defendant bears the burden of proving that his sentence is inappropriate. Reid v.

      State, 876 N.E.2d 1114, 1116 (Ind. 2007).


[9]   As to the nature of the offense, we note that Macon repeatedly shot at two fully

      uniformed police officers in their marked squad vehicle. We believe that this

      aggravator alone could have justified the trial court’s sentence. As our supreme

      court noted,


              Police officers routinely risk their lives in the sometimes high
              stakes gamble of protecting society. They do a job that we all
              want and need done, though few of us possess the bravery and
              skill to do. They ask for little in return, but they do ask for some
              protection.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016   Page 4 of 6
       Salyers v. State, 862 N.E.2d 650, 654 (Ind. 2007); see also Petruso v. State, 441

       N.E.2d 446, 450 (Ind. 1982) (finding the fact that the defendant attempted to

       murder a police officer who was performing his duties was a proper

       aggravator); Mendoza v. State, 869 N.E.2d 546, 557 (Ind. Ct. App. 2007)

       (affirming the defendant’s maximum sentence solely based on the nature of the

       offense because the defendant “repeatedly fired a loaded revolver at two officers

       who were in full uniforms, performing their duties.”), trans. denied. However, in

       addition, Macon was utilizing a laser sight, a sophisticated device designed to

       increase the lethal capabilities of a weapon system, which he aimed at multiple

       victims, thereby increasing and multiplying the ensued mayhem.


[10]   Turning to Macon’s character, we note that Macon had multiple violent

       offenses in the past. Macon had a prior misdemeanor conviction for battery

       and a juvenile adjudication for battery resulting in bodily injury. Macon

       incurred at least 14 conduct violations while incarcerated for the present

       offense, including two instances of refusing to obey the lawful request of jail

       staff; two instances of fighting with other inmates; assault or attempted assault,

       and/or battery or attempted battery on correction officers, jail staff, or fellow

       inmates; and fights or threats to harm, either verbally or physically, against

       correction officers, jail staff, or fellow inmates. This certainly demonstrates

       Macon’s disregard for the law, disrespect for lawful authority, and repeated

       violent behavior. Macon claims that the trial court did not consider the “sad

       circumstances of [his] upbringing.” (Appellant’s Br. p. 5). We, however, note

       that even if the trial court gave his unfortunate childhood any weight, it would


       Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016   Page 5 of 6
       have been “in the very low range,” if at all. Houser v. State, 823 N.E.2d 693, 700

       (Ind. 2005). Accordingly, considering Macon’s unchanged violent behavior

       and the malicious circumstances of his offense, we conclude that Macon failed

       to persuade us that the trial court’s sentencing decision was inappropriate.


                                               CONCLUSION

[11]   Based on the foregoing, we hold that Macon’s sentence was not inappropriate.


[12]   Affirmed.


[13]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 45A05-1506-CR-707 | April 5, 2016   Page 6 of 6
