                                                 Dec 10 2014, 10:09 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

LISA M. JOHNSON                              GREGORY F. ZOELLER
Brownsburg, Indiana                          Attorney General of Indiana

                                             JUSTIN F. ROEBEL
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

DONTA LEGG,                                  )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 49A02-1404-CR-279
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Sheila A. Carlisle, Judge
                          Cause No. 49G03-1310-MR-65942



                                 December 10, 2014

                             OPINION–FOR PUBLICATION

BAKER, Judge
          In this case, a sixteen-year-old was tried as an adult and convicted of murder. The

defendant requested to be sentenced under the alternative sentencing scheme for juvenile

offenders, but the trial court denied the request and sentenced him as an adult. As an

issue of first impression, we find that the trial court did not abuse its discretion in finding

that the nature of the offense and the character of the offender rendered sentencing under

the alternative sentencing scheme unsuitable in this case.

          Donta Legg appeals the sentence imposed by the trial court after Legg was

convicted of Murder,1 a felony, and Carrying a Handgun Without a License, 2 a class A

misdemeanor. Legg argues that the trial court should have sentenced him under the

alternative sentencing scheme applicable to juvenile offenders sentenced as adults and

that the sentence is inappropriate in light of the nature of the offense and his character.

Finding no error, we affirm.

                                            FACTS

          The victim, nineteen-year-old Darren Kirk, lived with his mother, Trisha Kirk, and

his two brothers, two-year-old A.K. and seventeen-year-old M.K. On September 20,

2013, someone knocked on their door at approximately 11:00 p.m. Trisha answered the

door and saw sixteen-year-old Legg standing on the front porch. Legg was there to see

Darren. She called for Darren, who went outside with Legg.




1
    Ind. Code § 35-42-1-1.
2
    Ind. Code § 35-47-2-1.
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      Trisha remained inside until she heard a commotion on the porch. She observed

Darren wrestling with a man, who was never identified, and Legg standing next to the

porch. M.K. also heard the commotion, ran out onto the porch, and tried to pull the

unidentified man off of Darren.

      Darren yelled, “He’s got a gun. He’s got a gun.” Tr. p. 67. The unidentified man

pulled a gun out of his waistband and handed it to Legg, instructing Legg to “Pop that

ni***r.” Id. at 68. Legg took one or two steps back, raised the gun, and shot Darren

once. M.K. stepped back into the house and Darren followed him. Darren stumbled, fell

to the ground, and died. Legg fled the scene. On November 3, 2013, the State charged

Legg as an adult with murder and class A misdemeanor carrying a handgun without a

license. A jury trial was held on February 3 and 4, 2014, and a jury found Legg guilty as

charged.

      The trial court held a sentencing hearing on March 27, 2014. The trial court found

the following aggravating factors: Legg’s history as a juvenile offender, his failure to

complete probation and a suspended commitment related to his last case, his marijuana

abuse, the nature and circumstances of the offense, and the fact that he committed the

offense in the presence of children. The trial court found as mitigating circumstances

Legg’s age, upbringing, and issues with schooling. After weighing aggravators and

mitigators, the trial court concluded that they balanced and imposed concurrent executed

terms of fifty-five years for murder and one year for carrying a handgun without a



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license.     The trial court declined to sentence Legg under the alternative sentencing

scheme for juveniles tried as adults. Legg now appeals.

                                DISCUSSION AND DECISION

       Legg argues that the fifty-five-year sentence imposed by the trial court is

inappropriate in light of the nature of the offenses and his character. Indiana Appellate

Rule 7(B) provides that this Court may revise a sentence if it is inappropriate in light of

the nature of the offense and the character of the offender. We must “conduct [this]

review with substantial deference and give ‘due consideration’ to the trial court’s

decision—since the ‘principal role of [our] review is to attempt to leaven the outliers,’

and not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274,

1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

(internal citations omitted).

       An adult who is convicted of murder is eligible for a sentence between forty-five

and sixty-five years, with an advisory term of fifty-five years. Ind. Code § 35-50-2-3.

Here, Legg was sentenced to the advisory term.

       The General Assembly has also provided an alternative sentencing scheme for

juveniles who are waived into adult court and convicted as adults. Indiana Code section

31-30-4-2 provides as follows:

       (a)      Subject to subsection (c), if:
                (1)   an offender is:
                      (A) less than eighteen (18) years of age;



                                            4
             (B)    waived to a court with criminal jurisdiction under IC 31-30-3
                    because the offender committed an act that would be a felony
                    if committed by an adult; and
             (C) convicted of committing the felony or enters a plea of guilty
                    to committing the felony; or
      (2)    an offender is:
             (A) less than eighteen (18) years of age;
             (B) charged with a felony over which a juvenile court does not
                    have jurisdiction under IC 31-30-1-4; and
             (C) convicted of committing the felony by a court with criminal
                    jurisdiction or enters a plea of guilty to committing the felony
                    with the court;
      the court may, upon its own motion, a motion of the prosecuting attorney,
      or a motion of the offender’s legal representative, impose a sentence upon
      the conviction of the offender under this chapter.
(b)   If a court elects to impose a sentence upon conviction of an offender under
      subsection (a) and, before the offender is sentenced, the department of
      correction determines that there is space available for the offender in a
      juvenile facility of the division of youth services of the department, the
      sentencing court may:
      (1)    impose an appropriate criminal sentence on the offender under IC
             35-50-2;
      (2)    suspend the criminal sentence imposed, notwithstanding IC 35-50-2-
             2 (before its repeal), IC 35-50-2-2.1, and IC 35-50-2-2.2;
      (3)    order the offender to be placed into the custody of the department of
             correction to be placed in the juvenile facility of the division of
             youth services; and
      (4)    provide that the successful completion of the placement of the
             offender in the juvenile facility is a condition of the suspended
             criminal sentence.
(c)   The court may not impose a sentence on an offender under subsection (a)
      until:
      (1)    the prosecuting attorney has notified the victim of the felony of the
             possible imposition of a sentence on the offender under this chapter;
             and
      (2)    either:
             (A) the probation department of the court has conducted a
                     presentence investigation concerning the offender and
                     reported its findings to the court; or


                                     5
                     (B)    the department of correction has conducted a diagnostic
                            evaluation of the offender and reported its findings to the
                            court.

(Emphases added).       For reasons explained below, the trial court determined that

application of the alternative sentencing scheme is not appropriate in this case.

       Turning to the nature of Legg’s offenses, we observe that he went to the residence

of Darren, a friend, late at night, knocked on the door, and asked Darren to come outside.

Legg knew that there were two juveniles inside the house. Legg’s accomplice began

physically fighting with Darren and eventually handed a gun to Legg and instructed him

to shoot Darren. Legg complied. There was a seventeen-year-old present on the porch

and a two-year-old present in the house when he shot the weapon. Legg has continued to

refuse to identify his accomplice. When questioned by the police, Legg repeatedly lied

about the events of that night.

       As to Legg’s character, we note, as did the trial court, his young age at the time he

committed these offenses. But we also note that at the age of sixteen, he had already

accumulated four true findings of juvenile delinquency, two of which would have been

felonies had he been convicted as an adult. He had also already failed probation and a

suspended commitment. While Legg had a challenging upbringing, the record reveals

that he had multiple extended family members in his life who loved and cared for him.

Legg had a learning disability, but the record does not reflect a nexus between that

disability and his propensity for breaking the law. And while Legg struggled in school,

part of those struggles stem from his failure to attend on a regular basis. He has been

                                             6
suspended for failing to attend school and admitted that he “didn’t work often” on his

school assignments. Presentence Investigation Report p. 8.

       Having considered all of the aggravators and mitigators in significant depth, the

trial court found as follows:     “considering all of those things, both the mitigating

circumstances and the aggravating circumstances and your character, conduct, and

condition as you sit here today, the Court does not believe that sentencing you under the

alternative sentencing statute for juveniles is appropriate in your case.” Tr. p. 455. As

noted above, the General Assembly has crafted the alternative sentencing statute as a

discretionary tool for trial courts. When the alternative sentencing statute applies, as it

does here, a trial court may choose to apply it, the necessary corollary being that it may

also choose not to apply it.

       This appears to be a case of first impression, as we have been unable to find other

cases interpreting the alternative sentencing statute. The statute itself offers no guidance

regarding when the alternative sentencing scheme should be implemented. It is well

established that the purpose of the juvenile justice system is rehabilitation so that the

juvenile will not become a criminal as an adult. C.B. v. State, 988 N.E.2d 379, 383 (Ind.

Ct. App. 2013). Under certain statutorily delineated circumstances, the juvenile court

may waive jurisdiction over a juvenile offender:

       Upon motion of the prosecuting attorney and after full investigation and
       hearing, the juvenile court may waive jurisdiction if it finds that:
       (1)    the child is charged with an act that is a felony:
              (A) that is heinous or aggravated, with greater weight given to
                      acts against the person than to acts against property; or

                                             7
                 (B)      that is a part of a repetitive pattern of delinquent acts, even
                          though less serious;
       (2)       the child was at least fourteen (14) years of age when the act charged
                 was allegedly committed;
       (3)       there is probable cause to believe that the child committed the act;
       (4)       the child is beyond rehabilitation under the juvenile justice system;
                 and
       (5)       it is in the best interests of the safety and welfare of the community
                 that the child stand trial as an adult.

Ind. Code § 31-30-3-2. The General Assembly has not provided factors such as these to

determine when the alternative sentencing scheme should be implemented, but we find

these factors to be instructive. We do not hold that trial courts are required to consider

these factors, nor do we hold that the State is required to prove that these factors are in

play to warrant the implementation of the alternative sentencing scheme, but these are

good examples of the kinds of criteria a trial court may consider in reaching its decision

on this issue.

       In this case, the trial court explained that the reason it chose not to apply the

alternative sentencing scheme was based on the nature of Legg’s offense as well as his

character. The trial court explicitly found that Legg was charged with a heinous act—

murder, in front of a juvenile—and that this act was part of a repetitive pattern of other

delinquent acts. Legg was sixteen years old when he committed the act, and he was

convicted by a jury. The trial court implicitly found, based upon these facts, that Legg is

beyond rehabilitation under the juvenile justice system.            Likewise, the trial court

implicitly found that the safety and welfare of the community dictate sentencing as an



                                                8
adult. Based upon the facts and circumstances of this case, we find that the trial court did

not abuse its discretion by making this decision.

       We acknowledge that Legg is a young offender. We also acknowledge that Legg

has been faced with many obstacles in his short life. But we must also consider the

nature of the crime he committed here. He took the life of another person—a friend—in

the presence of that person’s family. He has already shown a propensity for skipping

school and breaking the law. Under these circumstances, we do not think that the

advisory term of fifty-five years is inappropriate in light of the nature of the offenses and

Legg’s character. Cf. Fuller v. State, 9 N.E.3d 653, 659 (Ind. 2014) (revising a 150-year

sentence for a fifteen-year-old who had been convicted of two counts of murder and one

count of robbery to concurrent, maximum terms of 65 years for the murder convictions

and to a consecutive, enhanced 20-year term for robbery); Brown v. State, 10 N.E.3d 1, 8

(Ind. 2014) (revising a 150-year sentence for a sixteen-year-old who had been convicted

of two counts of murder and one count of robbery to concurrent, enhanced terms of 60

years for the murder convictions and a consecutive, enhanced 20-year term for robbery).

       The judgment of the trial court is affirmed.

MAY, J., and BARNES, J., concur.




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