MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Nov 27 2019, 11:12 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        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
Jennifer L. Koethe                                      Curtis T. Hill, Jr.
Navarre, Florida                                        Attorney General of Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Wilbert T. Sturgis,                                     November 27, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-PC-898
        v.                                              Appeal from the LaPorte Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas J.
Appellee-Plaintiff.                                     Alevizos, Judge
                                                        Trial Court Cause No.
                                                        46C01-0409-MR-129



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019                Page 1 of 8
                                          Case Summary
[1]   Wilbert T. Sturgis (“Sturgis”) appeals his sixty-year sentence for Murder, a

      felony.1 We affirm.



                                                   Issues
[2]   Sturgis presents two issues for review:


                 I.       Whether the trial court abused its sentencing discretion in
                          its consideration of aggravating and mitigating
                          circumstances; and


                 II.      Whether the sixty-year sentence is inappropriate.


                                   Facts and Procedural History
[3]   The following facts are taken from the unpublished memorandum decision of

      the direct appeal:


                 On the morning of September 20, 2004, teenager Barbara Day
                 was dismissed early from Michigan City High School because of
                 an earlier altercation she had with another teenager known only
                 by his nickname, “Spider.” Tr. p. 324. Day went to her home in
                 Michigan City and was joined there by at least eight other
                 individuals, including twenty-six-year-old Sturgis. Day came up
                 with a plan, to which everyone agreed, to go to the westside of
                 Michigan City to look for Spider and to fight him.




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019   Page 2 of 8
        The group at Day’s house agreed to go to a school bus stop near
        9th and Willard in Michigan City at about the time the bus was
        scheduled to drop off students. The group drove there in two
        cars, with Sturgis riding in a car driven by Natasha Harris. After
        arriving at the intersection, the group parked and got out of the
        cars. Day believed she saw Spider’s cousin in a group of boys
        that included fifteen-year-old Blake Kelly walking along the
        sidewalk.


        Day approached the group of boys and began asking Spider’s
        supposed cousin where he was. This boy denied knowing where
        Spider was. Kelly then told Day and her friends that they were
        not going to “jump him,” and Day told him to be quiet because
        he had nothing to do with it. Id. at 330. One of Day’s cousins,
        Willie Martin, began threatening to fight Kelly but Day told him
        to leave Kelly alone.


        While Day and her group were arguing with Kelly and his group,
        Sturgis walked up to Kelly and shot him in the jaw with a
        handgun. Kelly was unarmed, as was everyone else in the two
        groups besides Sturgis. This initial shot did not kill Kelly.
        Sturgis then put the handgun up against the side of Kelly’s head
        and shot him again, this time killing him. Police soon obtained
        several statements identifying Sturgis as Kelly’s killer, and they
        obtained a warrant for Sturgis’s arrest.


        On September 21, 2004, Sturgis turned himself into the Gary
        Police Department. … Initially during [an] unrecorded
        interview, Sturgis said he had been out of town when Kelly was
        shot so he could not have done it. He later retracted that
        statement, however, and admitted to what had happened.


Sturgis v. State, 46A03-0506-CR-00304, WL 5749798, Slip op. at 1-2 (Ind. Ct.

App. Sept. 30, 2015).


Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019   Page 3 of 8
[4]   Sturgis was charged with Murder and Kidnapping. At the conclusion of his

      trial on April 14, 2005, a jury found him guilty of Murder but not guilty of

      Kidnapping. He was sentenced to sixty-five years imprisonment.


[5]   Sturgis appealed, raising four issues: whether the prosecutor committed

      misconduct during voir dire; whether his police statement was inadmissible;

      whether the trial court abused its sentencing discretion; and whether his sixty-

      five-year sentence was inappropriate. See id. at 1. Sturgis’s conviction and

      sentence were affirmed. Id.


[6]   On April 12, 2013, Sturgis filed a petition for post-conviction relief, which was

      amended on December 5, 2016, and again on April 28, 2017. One claim made

      by Sturgis was that his trial counsel was ineffective during the sentencing

      hearing for failing to argue that Sturgis’s remorse was a mitigating factor.

      Sturgis was granted partial post-conviction relief, in that the post-conviction

      court ordered that Sturgis be resentenced. Sturgis appealed, contending that his

      trial counsel had also been ineffective during the evidentiary phase of trial, for

      failure to object to Sturgis standing trial while shackled. This Court affirmed

      the post-conviction judgment. Sturgis v. State, 46A03-1711-PC-2652 (Ind. Ct.

      App. June 15, 2018).


[7]   On March 22, 2019, Sturgis was resentenced. The trial court found as

      aggravating factors: Sturgis had a criminal history; he was on parole at the time

      he committed the murder; and the murder was committed in the presence of

      children. The trial court recognized Sturgis’s cooperation with police as a “very


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019   Page 4 of 8
      slight mitigating factor,” observing that Sturgis had failed to “take full

      responsibility at the time.” (App. Vol. III, pg. 9.) Also, the trial court

      recognized Sturgis’s remorse as a mitigating factor. Concluding that the

      aggravators outweighed the mitigators, the trial court imposed upon Sturgis a

      sentence of sixty years imprisonment. He now appeals.



                                Discussion and Decision
                                       Abuse of Discretion
[8]   Sturgis contends that the trial court abused its discretion by failing to “give

      more weight to Mr. Sturgis’s cooperation in turning himself into the police,

      giving a statement to police and his remorse at the re-sentencing hearing.”

      Appellant’s Brief at 12.


[9]   The sentencing scheme in effect at the time of a criminal offense is controlling.

      See Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007). In 2004, sentencing in

      Indiana was governed by a “presumptive” scheme; that is, the legislature had

      prescribed “standard” or “presumptive” sentences for each crime, allowing the

      sentencing court limited discretion to enhance a sentence for aggravating

      circumstances or reduce a sentence for mitigating circumstances. Francis v.

      State, 817 N.E.2d 235, 237 (Ind. 2004). Pursuant to Indiana Code Section 35-

      50-2-3, the presumptive sentence for a murder committed in 2004 was fifty-five

      years, with a minimum sentence of forty-five years and a maximum sentence of




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019   Page 5 of 8
       sixty-five years.2 When Sturgis was resentenced, he received a sentence five

       years above the presumptive sentence.


[10]   Under the presumptive sentencing scheme, if the court relied on aggravating or

       mitigating circumstances to deviate from the presumptive sentence, the court

       was required to “(1) identify all significant mitigating and aggravating

       circumstances; (2) state the specific reason why each circumstance has been

       determined to be mitigating or aggravating; and (3) articulate the court’s

       evaluation and balancing of circumstances.” Francis, 817 N.E.2d at 237. When

       a sentence greater than the presumptive was challenged on appeal, the

       reviewing court would examine the record for an adequate explanation of the

       reasons for the sentence imposed. Id. If the reviewing court found “irregularity

       in the lower court’s sentencing decision,” the court could elect among options,

       including “to remand to the trial court for a clarification or new sentencing

       determination, to affirm the sentence if the error is harmless, or to reweigh the

       proper aggravating and mitigating circumstances independently at the appellate

       level.” Id. at 238.




       2
         On June 24, 2004, the Supreme Court of the United States handed down Blakely v. Washington, 542 U.S.
       296, 301 (2004), holding that the Sixth Amendment right to a jury trial required that “[o]ther than the fact of
       a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum
       must be submitted to a jury, and proved beyond a reasonable doubt.” In Smylie v. State, 823 N.E.2d 679 (Ind.
       2005), our Indiana Supreme Court held that the Indiana sentencing scheme violated the Sixth Amendment as
       explained in Blakely. The Legislature responded and, effective April 25, 2005, the sentencing statutes were
       amended to replace presumptive sentences with advisory sentences. The sentencing court was authorized,
       within its discretion, to impose any sentence within the statutory range. Robertson, 871 N.E.2d at 283.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019                   Page 6 of 8
[11]   Here, the trial court identified aggravating and mitigating circumstances

       supported by the evidence. Sturgis does not claim that the trial court omitted a

       mitigating circumstance, improperly found an aggravating circumstance, or

       failed to provide an adequate sentencing statement. In short, he does not

       identify “irregularity in the sentencing decision,” see id., such that reweighing

       the circumstances would be warranted.3


                                  Appropriateness of Sentence
[12]   Under Indiana Appellate Rule 7(B), this “Court 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.” Under the presumptive statutory scheme,

       the presumptive sentence was the starting point the Legislature selected as an

       appropriate sentence for the crime committed. Ruiz v. State, 818 N.E.2d 927,

       929 (Ind. 2004).


[13]   As for the nature of the offense, Sturgis fired multiple shots into an unarmed

       teenager. He killed the fifteen-year-old victim in the presence of other children.


[14]   As for his character, Sturgis has a criminal history (including armed robbery

       and possession of cocaine), a history of substance abuse, and past affiliation




       3
         After enactment of the advisory sentencing scheme, a trial court no longer has an obligation to “weigh”
       aggravating circumstances against mitigating circumstances when deciding what sentence to impose, unlike
       the pre-Blakely regime. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). However, as we have
       observed, Sturgis was sentenced under the presumptive sentencing scheme.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019                Page 7 of 8
       with a street gang. He was on parole when he committed the murder. He

       expressed remorse, and his decision to surrender to police reflects favorably on

       his character. However, Sturgis surrendered after a warrant was issued for his

       arrest and he initially claimed that he could not have committed the murder

       because he was out of town.


[15]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B) warranting appellate revision.

       Accordingly, we decline to disturb the sentence imposed by the trial court.



                                               Conclusion
[16]   Sturgis has not shown that the trial court abused its sentencing discretion. His

       sixty-year sentence for Murder is not inappropriate.


[17]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-898 | November 27, 2019   Page 8 of 8
