MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             May 29 2019, 10:33 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bradley Keffer                                           Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart LLP                                      J.T. Whitehead
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Leroy Terrell Hunter,                                    May 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-108
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1802-MR-1106



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019                    Page 1 of 7
[1]   Leroy Terrell Hunter appeals his sentence for voluntary manslaughter as a level

      2 felony enhanced by his possession of a firearm. He raises one issue which we

      revise and restate as whether his sentence is inappropriate in light of the nature

      of the offense and his character. We affirm.


                                      Facts and Procedural History

[2]   On November 10, 2017, Dion Banks introduced Donald Xavier Freels to

      Carolyn Butler whom Banks knew sold synthetic cannabinoids or “Katey,” as

      well as methamphetamine and marijuana. Appellant’s Appendix Volume II at

      53. Freels and Butler made plans for a narcotics transaction. Hunter and

      Zachery Hunter (“Zachery”) accompanied Butler when she went to meet

      Freels.


[3]   Freels asked to see the narcotics, and Butler handed him methamphetamine

      and marijuana. Freels began to weigh the narcotics with his own scale. Butler

      heard Freels say “what are you two n----- on,” and she heard gunshots

      immediately after. Id. at 55. She saw a muzzle flash in the rearview mirror

      coming from the gun that Hunter was firing in Freels’s direction. Freels was

      shot multiple times, and Hunter and Zachery loaded his body into the back seat

      of Butler’s vehicle and told her to drive. Butler drove to the end of an access

      road, and Hunter and Zachery removed Freels’s body and “dumped him like

      trash.” Id. Hunter and Zachery looked in Freels’s pockets and found he did not

      have any money. An autopsy revealed that Freels was shot seven times

      including three shots to his head and four to his upper and lower back and that

      two different calibers of bullets were used in the shooting. Butler’s sister later
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019   Page 2 of 7
      indicated to police that she had heard Hunter say that Freels pulled out a gun

      and attempted to rob Butler.


[4]   On February 13, 2018, the State charged Hunter with murder and alleged that

      he was eligible for a sentencing enhancement for committing a felony offense

      while a member of a criminal organization as well as for committing a felony

      offense while using a firearm.


[5]   On November 14, 2018, the court held a hearing at which the parties indicated

      that Hunter would plead guilty to voluntary manslaughter as a level 2 felony

      and admit the firearm enhancement, and the court would sentence him to

      between twenty and forty years. On December 14, 2018, the court held a

      hearing, and Hunter pled guilty pursuant to the plea agreement. Hunter did not

      present evidence, but his counsel argued that he had no prior felony history, the

      crime was the result of circumstances unlikely to recur, he is unlikely to commit

      another crime, Freels either induced or facilitated the offense, and his

      incarceration would result in undue hardship on his three children. 1 Hunter’s

      counsel asked for a sentence of fifteen years enhanced by eight years for the

      firearm enhancement. The prosecutor asked for a sentence of forty years.




      1
       The presentence investigation report states that Hunter had zero dependent children. At sentencing,
      Hunter’s counsel stated: “Judge, we went through the presentence in the back and everything appears to be
      accurate. He did not indicate any changes and I did not see any going through it as well.” Transcript
      Volume II at 13.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019                     Page 3 of 7
[6]   On December 19, 2018, the court continued the hearing, accepted the plea

      agreement, found Hunter’s criminal history and the nature and circumstances

      of the offense surrounding the killing as aggravators, and sentenced him to

      twenty years for voluntary manslaughter enhanced by twenty years on the

      firearm enhancement for an aggregate sentence of forty years.


                                                  Discussion

[7]   The issue is whether Hunter’s sentence is inappropriate in light of the nature of

      the offense and the character of the offender. Hunter contends that Freels’s

      death and the use of a firearm were already accounted for in the conviction and

      that he was not one of the main proponents or planners involved in the drug

      deal. He argues that Freels was actually trying to rob Butler, that he has led a

      law-abiding life for a substantial period of time, he is likely to respond

      appropriately to probation or short-term imprisonment, he is unlikely to

      commit another crime, his imprisonment will result in undue hardship to his

      three children, and he accepted responsibility for his crime.


[8]   The State argues that the facts surrounding the crime and Hunter’s criminal

      history were valid considerations and that the facts surrounding the crime

      undermine and contradict Hunter’s alleged mitigating circumstances. It asserts

      that the fact that Freels was shot in the back completely undermines any claims

      that he acted in a way that necessitated the shooting.


[9]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, [we find] that the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019   Page 4 of 7
       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[10]   Ind. Code § 35-50-2-4.5 provides that “[a] person who commits a Level 2 felony

       shall be imprisoned for a fixed term of between ten (10) and thirty (30) years,

       with the advisory sentence being seventeen and one-half (17 ½) years.” Ind.

       Code § 35-50-2-11(g) provides that if the court finds that “the person knowingly

       or intentionally used a firearm in the commission of the offense under

       subsection (d), the court may sentence the person to an additional fixed term of

       imprisonment of between five (5) years and twenty (20) years.”


[11]   Our review of the nature of the offense reveals that Hunter accompanied Butler

       who had sold synthetic cannabinoids, methamphetamine, and marijuana, to a

       narcotics transaction. He fired a gun in Freels’s direction, and Freels was shot

       seven times including three shots to his head and four to his upper and lower

       back. He dumped Freels’s body like trash and looked in his pockets.


[12]   Our review of the character of the offender reveals that Hunter pled guilty to

       voluntary manslaughter as a level 2 felony and a firearm enhancement after he

       was charged with murder and two sentencing enhancements. His criminal




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019   Page 5 of 7
       history includes convictions for residential entry, 2 reckless driving and public

       intoxication as class B misdemeanors, and operating a motor vehicle without

       ever having received a license as a class C misdemeanor. 3 The presentence

       investigation report (“PSI”) reveals that Hunter was charged with false

       informing and public intoxication as a class B misdemeanor and received “12

       days VCJ.” 4 Appellant’s Appendix Volume II at 46. It also lists a charge of

       alcohol intoxication in a public place with a sentencing date of March 13, 2008,

       but states: “No disposition available.” Id. In 2008, Hunter’s probation was

       revoked. The PSI indicates that his overall risk assessment score places him in

       the high risk to reoffend category. After due consideration, we conclude that

       Hunter has not sustained his burden of establishing that his sentence is

       inappropriate in light of the nature of the offense and his character. 5


[13]   For the foregoing reasons, we affirm Hunter’s sentence.




       2
        The entry in the chronological case summary related to residential entry lists an offense date of May 14,
       2003, and a sentencing date of October 18, 2007.
       3
         The entry for reckless driving, public intoxication, and operating a motor vehicle without having received a
       license lists an offense date of April 14, 2003, and a sentencing date of September 26, 2007.
       4
        The entry for these offenses lists an offense date of October 11, 2008, and a sentencing date of November
       22, 2017.
       5
         To the extent Hunter argues that the court abused its discretion in sentencing him by failing to consider
       certain mitigators, we need not address this issue because we find that his sentence is not inappropriate. See
       Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider
       the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing
       Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order,
       Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence
       pursuant to Ind. Appellate Rule 7(B)), reh’g denied; 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), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019                             Page 6 of 7
[14]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-108 | May 29, 2019   Page 7 of 7
