MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Sep 28 2018, 10:50 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scotty R. Irvin,                                         September 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-856
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff.                                      Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-1612-MR-9



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-856 | September 28, 2018                Page 1 of 6
[1]   Scotty Irvin (“Irvin”) appeals his sentence of sixty-four years for a murder

      conviction from the Elkhart Circuit Court. Irvin argues that the sentence is

      inappropriate in light of his character and the nature of the offense.


[2]   We affirm.


                                Factual and Procedural History
[3]   Irvin was married to Tifanee Burrows (“Burrows”) for approximately nineteen

      years. In late 2015, Burrows asked for a separation. In February of 2016, Irvin

      moved out of the family’s home. Burrows filed for divorce in March of 2016.

      After Burrows filed for divorce, she re-established contact with someone she

      had dated in high school, Mark Huber (“Huber”). In May of 2016, Huber

      moved in with Burrows. Huber found a job in Goshen, but did not have a

      driver’s license and depended on Burrows for a ride to work. Burrows dropped

      Huber off at a church near his workplace every day around 3:00 a.m. before

      going to work herself. This had become the couple’s routine for approximately

      six months.


[4]   Burrows did not often communicate with Irvin. The two only saw each other

      when Irvin picked up their son. However, when the former couple did

      communicate, Irvin indicated that he was angry and blamed Huber for the

      divorce. Irvin wanted Burrows to give him another chance. Burrows was

      unwilling. On one occasion, Huber and Irvin had an angry exchange because

      Irvin had stopped paying his child support to Burrows.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-856 | September 28, 2018   Page 2 of 6
[5]   On November 21, 2016, Burrows dropped Huber off at the church near his

      workplace around 3:00 am. Usually, Burrows would text Huber to let him

      know that she had arrived at work. Huber would always respond to her

      immediately, but on that day, there was no response. Burrows tried Huber’s cell

      phone multiple times that day to no avail. When Burrows went back to the

      church after work to pick Huber up, he was not there. Huber never showed up

      to work that day, nor did he show up for work on the 22 nd. Burrows filed a

      missing person report with police.


[6]   Several days after he disappeared, on November 25, 2016, Huber’s body was

      discovered by a utility worker during a routine check of the sewer system in

      LaPorte County. Huber had been shot in the back of the head.


[7]   When detectives learned of the animosity between Huber and Irvin, Irvin

      became a suspect. When Irvin was questioned by detectives, he initially denied

      having anything to do with Huber’s death. However, Irvin eventually admitted

      that he had arrived at the church before Burrows dropped off Huber on

      November 21, 2016. Irvin snuck up behind Huber while he sat at the church

      prior to work and shot him in the back of his head. Irvin transported the body

      to another county, discarded Huber’s body in the sewer, and burned the

      victim’s belongings. He also admitted to sending himself a text message from

      Huber’s phone saying “[y]ou can have your slut of wife back now,” which Irvin

      forwarded to Burrows in an attempt to get back together after Burrows realized

      Huber was missing. After confessing, Huber gave the murder weapon to police.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-856 | September 28, 2018   Page 3 of 6
[8]    The State charged Irvin with murder. A bench trial was held on November 27-

       28, 2017, and Irvin was found guilty as charged. He was sentenced to sixty-four

       years in the Department of Correction. He appeals his sentence, arguing the

       sentence is inappropriate in light of Irvin’s character and the nature of the

       offense.


                                      Discussion and Decision
[9]    Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by the trial court. Trainor v.

       State, 950 N.E.2d 352, 355–56 (Ind. Ct. App. 2011) (citing Anglemyer v. State,

       868 N.E.2d 482, 491 (Ind. 2007)), trans. denied. This authority is implemented

       through Indiana Appellate Rule 7(B), which provides that the court on appeal

       “may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, the Court finds that the sentence is inappropriate in light

       of the nature of the offense and the character of the offender.”


[10]   Still, we must and should exercise deference to a trial court’s sentencing

       decision because Rule 7(B) requires us to give “due consideration” to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions. Trainor, 950 N.E.2d at 355 (quoting

       Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). Although we have

       the power to review and revise sentences, the 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 what we perceive to be a “correct” result in each
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-856 | September 28, 2018   Page 4 of 6
       case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (citing

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)), trans denied. The

       appropriate question is not whether another sentence is more appropriate;

       rather, the question is whether the sentence imposed is inappropriate. Fonner v.

       State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s burden on

       appeal to persuade us that the sentence imposed by the trial court is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[11]   The sentence for murder carries a range from forty-five years as a minimum, to

       sixty-five years as a maximum, with fifty-five years as the advisory sentence.

       Ind. Code § 35-50-2-3. The maximum sentence is generally reserved for the

       worst offenses and offenders. Buchanan v. State, 699 N.E.2d 655, 657 (Ind.

       1998). In the instant case, the trial court imposed a sixty-four year sentence.

       Irvin asks this Court to revise his sentence to between forty-five and fifty-five

       years, arguing that the nature and circumstances of the offense do not reflect

       that his was the “very worst” crime of murder warranting a sentence of one

       year below the maximum.


[12]   With respect to the character of the offender, Irvin has no prior criminal history.

       Also, Irvin eventually cooperated with investigators, confessed, and turned over

       the murder weapon. His risk assessment showed a low likelihood of re-offense.

       However, the trial court noted Irvin’s lack of remorse, which reflects poorly on

       his character. Irvin argues no other character evidence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-856 | September 28, 2018   Page 5 of 6
[13]   However, the nature of Irvin’s offense was horrific. The record shows that Irvin

       carefully planned and carried out the murder. Irvin observed his victim’s

       routine. He arrived at the church to wait for Huber to be dropped off at the

       church prior to work. Irvin was lying in the grass until he could sneak up on his

       victim. Irvin shot his victim in the back of the head, and transported the

       victim’s body to another county, dumping Huber’s body into a sewer. Irvin

       burned the victim’s belongings to cover up his crime. Additionally, Irvin sent

       himself a text message from the victim’s phone stating “you can have your slut

       of a wife back now,” which he later showed to Burrows in an attempt to

       rekindle their marriage.


[14]   The nature of the offense and Irvin’s lack of remorse more than support the trial

       court’s decision to impose a sixty-four year sentence. This Court is not

       persuaded that the Defendant’s sentence is inappropriate.


[15]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-856 | September 28, 2018   Page 6 of 6
