MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                              May 22 2020, 10:04 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
P. Jeffrey Schlesinger                                   Steven J. Hosler
Office of the Public Defender                            Deputy Attorney General
Appellate Division                                       Indianapolis, Indiana
Crown Point, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marquise Marcel Harvey,                                  May 22, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-12
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D. Murray,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G02-1807-F2-20



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020                      Page 1 of 7
                                             Case Summary
[1]   Marquise Marcel Harvey (“Harvey”) pled guilty to one count of Robbery, as a

      Level 5 felony,1 and was sentenced to three years imprisonment. On appeal, he

      challenges the sentence, contending that the trial court abused its sentencing

      discretion and that his sentence is inappropriate. We affirm.



                                   Facts and Procedural History
[2]   On June 30, 2018, Trace Howard (“Howard”) purchased a meal for Harvey,

      who was a stranger to Howard. Harvey rewarded Howard’s generosity by

      striking him in the head and stealing Howard’s wallet and cellular phone.


[3]   On July 3, 2018, the State filed several charges against Harvey, related to his

      conduct against Howard, including a charge of Robbery, as a Level 2 felony.

      The State later alleged Harvey to be a habitual offender. As a result of plea

      negotiations between the State and Harvey, the State filed an amended

      Information, charging Harvey with Robbery, as a Level 5 felony. Harvey pled

      guilty to that charge. On December 2, 2019, he was sentenced to three years

      imprisonment, which is the advisory sentence for a Level 5 felony2 but the

      maximum sentence permitted by the plea agreement. Harvey now appeals.




      1
          Ind. Code § 35-42-5-1.
      2
       See I.C. § 35-50-2-6, providing that a person convicted of a Level 5 felony faces a sentence of one to six
      years, with three years as the advisory sentence.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020                           Page 2 of 7
                                Discussion and Decision
                                       Abuse of Discretion
[4]   Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007). So long as the sentence is within the statutory range, the trial

      court may impose it without regard to the existence of aggravating or mitigating

      factors. Id. at 489. However, if the trial court does find the existence of

      aggravating or mitigating factors, it must give a statement of its reasons for

      selecting the sentence it imposes. Id. at 490. The relative weight or value

      assignable to reasons properly found, or those which should have been found, is

      not subject to review for abuse of discretion. Id.


[5]   An abuse of discretion will be found where the decision is clearly against the

      logic and effect of the facts and circumstances before the court or the

      reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial

      court may abuse its discretion in a number of ways, including: (1) failing to

      enter a sentencing statement at all; (2) entering a sentencing statement that

      includes aggravating and mitigating factors that are unsupported by the record;

      (3) entering a sentencing statement that omits reasons that are clearly supported

      by the record; or (4) entering a sentencing statement that includes reasons that

      are improper as a matter of law. Id. at 490-91.


[6]   Here, the trial court entered a sentencing statement recognizing four

      aggravators: the severity of the victim’s beating, Harvey’s criminal history, his

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020    Page 3 of 7
      violation of probation, and his pending criminal charge. The trial court

      recognized a single mitigator, Harvey’s decision to plead guilty, thereby

      preserving judicial resources and taxpayer funds. Harvey now argues that the

      trial court abused its discretion by failing to include as mitigating circumstances

      his difficult childhood, his youth (twenty years of age), the hardship his

      imprisonment would cause his aunt, and his maturation during his most recent

      incarceration.


[7]   “When a defendant alleges that the trial court failed to identify or find a

      mitigating circumstance, the defendant must establish that the mitigating

      evidence is both significant and clearly supported by the record.” Corbett v.

      State, 764 N.E.2d 622, 630 (Ind. 2002). “Age is neither a statutory nor a per se

      mitigating factor.” Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). As for

      Harvey’s background, his aunt, Alice Locket (“Locket”), testified that she had

      raised Harvey after his parents abandoned him in infancy. According to

      Locket, Harvey had a good childhood, one free from abuse and neglect. She

      testified that she had undergone cancer treatment in 2011 and Harvey’s

      assistance had been invaluable. Locket also opined that Harvey had benefited

      from recent rehabilitative efforts, describing him as “mature, rational, and

      compassionate.” (Tr. Vol. III, pg. 8.) Locket’s testimony did not establish that

      Harvey had endured abuse or suggest that he provided necessary assistance to a

      dependent on an ongoing basis. In closing, Harvey’s attorney argued that he

      had recently exhibited increased signs of maturity, yet he conceded that Harvey

      had been unable to comply with conditions of probation in the past.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020    Page 4 of 7
[8]    On this record, we cannot say that the trial court overlooked evidence of

       mitigation that is “both significant and clearly supported by the record.”

       Corbett, 764 N.E.2d at 630. Harvey has not demonstrated an abuse of the trial

       court’s sentencing discretion.


                                           Appropriateness
[9]    Harvey received the advisory sentence for his crime, see Ind. Code § 35-50-2-6,

       but argues that it is too severe, due to his youth, background, recent benefits

       from rehabilitation, and his family obligations. 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). 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 v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The

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

       Id. at 1080.


[10]   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). We need not determine whether another sentence is more appropriate

       but rather whether the sentence imposed is inappropriate. Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012), reh’g denied.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020   Page 5 of 7
[11]   The nature of Harvey’s robbery of Howard is particularly heinous. Harvey

       gained access to his victim because he had purchased food for Harvey. Harvey

       struck Howard in his head in order to obtain his wallet and cellular phone. At

       the sentencing hearing, the State submitted documentary evidence suggesting

       that Howard had been seriously injured as a result of blows to his head.

       Howard testified that, since the beating, he suffered more frequent seizures and

       was anxious and lacked trust in others.


[12]   As for Harvey’s character, there was evidence that he had been kind to his aunt.

       His behavior as a citizen was not likewise becoming. In 2014, Harvey was

       twice adjudicated a juvenile delinquent. In 2016, he was convicted of illegal

       possession of alcohol and twice convicted of criminal trespass, all

       misdemeanors. In 2017, he was convicted of criminal confinement, as a Level

       5 felony, and failure to return to lawful detention, a Level 6 felony. He had

       violated probation on multiple occasions and was, at the time of sentencing,

       facing an additional charge for conversion.


[13]   In sum, there is nothing known to us about the nature of the offense or the

       character of the offender that militates toward a sentence less than the advisory

       sentence imposed upon Harvey.



                                               Conclusion
[14]   Harvey has not shown an abuse of the trial court’s sentencing discretion. His

       sentence is not inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020   Page 6 of 7
[15]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020   Page 7 of 7
