MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Nov 29 2017, 10:35 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
Mark A. Thoma                                           Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                                     Henry A. Flores, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Candace S. McGee,                                       November 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1705-CR-1101
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck,
Appellee-Plaintiff                                      Jr., Judge
                                                        Trial Court Cause No.
                                                        02D06-1606-F5-165



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017          Page 1 of 8
                                             Case Summary
[1]   Candace S. McGee appeals the four-year sentence imposed by the trial court

      following her guilty plea to level 5 felony battery. She contends that the trial

      court abused its discretion during sentencing and that her sentence is

      inappropriate in light of the nature of the offense and her character. Finding no

      abuse of discretion, and that McGee has not met her burden to demonstrate

      that her sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On April 16, 2016, Marquel Marsh was in his residence when someone began

      “banging” on his front door. Appellant’s App. Vol. 2 at 13. When Marsh

      opened the door, he saw his ex-girlfriend, McGee, walking away toward her

      vehicle. She then entered her vehicle, pulled up to Marsh’s residence, pointed a

      gun out the passenger window, and fired at Marsh. As Marsh attempted to

      retreat into the residence, a bullet hit his front glass door, causing the glass to

      shatter. Some of the shattered glass hit Marsh, causing a laceration to his right

      arm. After shooting at Marsh, McGee sped away. Marsh went to the hospital

      for his injuries.


[3]   The State charged McGee with level 5 battery by means of a deadly weapon,

      level 5 felony criminal recklessness, and level 6 felony pointing a firearm.

      McGee pled guilty to all three counts; however, the trial court subsequently

      dismissed the criminal recklessness and pointing a firearm counts and entered

      judgment of conviction only on the battery count. Following a hearing, the trial


      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017   Page 2 of 8
      court sentenced McGee to a four-year term, with three years executed and one

      year suspended to probation. This appeal ensued.


                                     Discussion and Decision

       Section 1 – The trial court did not abuse its discretion during
                                sentencing.
[4]   McGee first argues that the trial court abused its discretion in finding

      aggravating and mitigating circumstances. Sentencing decisions rest within the

      sound discretion of the trial court and, so long as the sentence imposed is within

      the statutory range, we review it only for an abuse of discretion. Anglemeyer v.

      State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An

      abuse of discretion occurs if the decision is clearly against the logic and effect of

      the facts and circumstances before the court, or the reasonable, probable

      deductions to be drawn therefrom. Id. A trial court may abuse its discretion in

      a number of ways, including failing to enter a sentencing statement; entering a

      sentencing statement that includes aggravating and mitigating factors if any, but

      the record does not support the reasons; the sentencing statement omits reasons

      that are clearly supported by the record and advanced for consideration, or the

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


[5]   McGee argues that the trial court improperly considered an element of her

      offense, use of a deadly weapon, as an aggravating factor. In Gomillia v. State,

      13 N.E.3d 846 (Ind. 2014), our supreme court explained that “[w]here a trial

      court’s reason for imposing a sentence greater than the advisory sentence


      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017   Page 3 of 8
      includes material elements of the offense, absent something unique about the

      circumstances that would justify deviating from the advisory sentence, that

      reason is improper as a matter of law.” Id. at 852-53 (citations and quotation

      marks omitted). Thus, if the trial court relies upon an aggravating factor that is

      also a material element of the offense, then the trial court abuses its discretion;

      but if there is something unique about the circumstances of the crime, then

      there is no abuse of discretion in relying upon these circumstances as an

      aggravating factor. See id. at 853 (“Generally, the nature and circumstances of a

      crime is a proper aggravating circumstance.”).


[6]   Our review of the trial court’s sentencing statement reveals that the trial court

      did not simply rely on McGee’s use of a deadly weapon in committing her

      crime; rather, the court relied on the manner in which she carried out her crime

      as an aggravating circumstance. Specifically, the trial court noted that a lesser

      sentence would “diminish the seriousness of this offense” because “you can’t

      just walk up and shoot somebody because sometime in the past he hurt you.”

      Sent. Tr. at 11. Moreover, while the trial court referenced McGee’s use of a

      firearm in committing her crime as particularly troubling, battery with a deadly

      weapon need not involve a firearm but simply any material that is readily

      capable of causing serious bodily injury. See Ind. Code § 35-31.5-2-86(a)(1)(2).

      Accordingly, the circumstances of McGee’s crime were unique and the court

      did not abuse its discretion in relying upon these circumstances as an

      aggravating factor.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017   Page 4 of 8
[7]   The trial court found McGee’s guilty plea and remorse as mitigating factors.

      McGee argues that the trial court abused its discretion in failing to find her

      employment, level of education, difficult childhood, and prior abuse allegedly

      suffered at the hands of Marsh as mitigating circumstances. An allegation that

      the trial court failed to identify or find a mitigating factor requires the defendant

      to establish that the mitigating evidence is both significant and clearly supported

      by the record. Anglemeyer, 868 N.E.2d at 493.


[8]   Contrary to McGee’s assertion, the trial court was not obligated to consider her

      “ability to maintain gainful employment” as a mitigating factor. Appellant’s

      Br. at 19. Indeed, many people are gainfully employed such that a trial court is

      not required to note employment as a mitigating factor. Newsome v. State, 797

      N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied (2004). As for her level of

      education, there is nothing in the record to indicate that McGee advanced this

      factor as mitigating during sentencing. If a defendant does not advance a factor

      to be mitigating at sentencing, we will presume that the factor is not significant,

      and the defendant is precluded from advancing it as a mitigating circumstance

      for the first time on appeal. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000).


[9]   As for her troubled childhood and the alleged abuse suffered at the hands of

      Marsh, the evidence in the record is conflicting and somewhat inconsistent

      regarding both proffered circumstances. Thus, we cannot say that the evidence

      was both significant and clearly supported by the record. The trial court did not

      abuse its discretion in concluding that neither of these was a significant

      mitigating circumstance.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017   Page 5 of 8
[10]   In any event, even if the trial court had abused its discretion in its consideration

       of (or failure to consider) aggravating and mitigating circumstances during

       sentencing, reversal would not be necessary, because as we will explain below,

       the sentence imposed is not inappropriate. See Mendoza v. State, 869 N.E.2d

       546, 556 (Ind. Ct. App. 2007) (noting that “even if the trial court is found to

       have abused its discretion in the process it used to sentence the defendant, the

       error is harmless if the sentence imposed was not inappropriate”), trans. denied.


       Section 2 – McGee has not met her burden to demonstrate that
                      her sentence is inappropriate.
[11]   McGee claims that her sentence is inappropriate and invites this Court to

       reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may

       revise a sentence authorized by statute 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.” The defendant bears

       the burden to persuade this Court that his or her sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

       sentencing scheme allows trial courts to tailor an appropriate sentence to the

       circumstances presented, and the trial court’s judgment “should receive

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

       The principal role of appellate review is to attempt to “leaven the outliers.” Id.

       at 1225. Whether we regard a sentence as inappropriate 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 facts that come to light in a given

       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017   Page 6 of 8
       case.” Id. at 1224. We consider all aspects of the penal consequences imposed

       by the trial court in sentencing the defendant, including whether a portion of

       the sentence is ordered suspended “or otherwise crafted using any of the variety

       of sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). In conducting our review, we do not look to see

       whether the defendant’s sentence is appropriate or if another sentence might be

       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).


[12]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

       for a level 5 felony is between one and six years, with the advisory sentence

       being three years. Ind. Code § 35-50-2-6. The trial court here imposed a four-

       year sentence, with one year suspended to probation, resulting in an executed

       sentence of three years.


[13]   The nature of McGee’s offense is quite serious. She did not merely commit a

       garden-variety battery with something that may loosely be considered a deadly

       weapon. Rather, she pointed a loaded firearm and fired a bullet at her ex-

       boyfriend. The shot narrowly missed him and luckily hit the glass door instead.

       Marsh could have been killed, and we do not accept McGee’s attempts to

       downplay the egregiousness of her behavior. She has not persuaded us that a

       three-year executed term is inappropriate in light of the nature of her offense.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017   Page 7 of 8
[14]   McGee does not fare much better when her character is considered. When

       considering the character of the offender, one relevant fact is the defendant’s

       criminal history. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017),

       trans. denied. Twenty-nine-year-old McGee is no stranger to the criminal justice

       system. McGee had some contact with the juvenile justice system, and albeit

       minor offenses, McGee has four prior adult misdemeanor convictions. She was

       granted the leniency of probation and/or a suspended sentence on each of those

       convictions, yet she violated the terms of her probation and/or suspended

       sentence every time. McGee has shown utter disrespect for the judicial system

       in this regard and has refused to reform her behavior. Moreover, McGee

       admits to a long history of substance abuse. Under the circumstances, McGee

       has failed to convince us that her sentence is inappropriate in light of her

       character. We decline the invitation to reduce her sentence and affirm the

       sentence imposed by the trial court.


[15]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1101 | November 29, 2017   Page 8 of 8
