MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                   Dec 04 2015, 8:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                     Gregory F. Zoeller
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Karl M. Scharnberg
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marcus Jovan Lindsey,                                   December 4, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1503-CR-95
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Wendy W. Davis,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D04-1409-F5-46



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015     Page 1 of 7
                                Case Summary and Issue
[1]   Following a guilty plea, Marcus Lindsey was convicted of assisting a criminal, a

      Level 5 felony. The trial court sentenced Lindsey to four years executed in the

      Indiana Department of Correction. Lindsey appeals his sentence, raising the

      sole issue of whether his sentence is inappropriate in light of the nature of the

      offense and his character. Concluding his sentence is not inappropriate, we

      affirm.



                            Facts and Procedural History
[2]   This case arises from the murder of John D. Holman on the evening of

      September 8, 2014. The probable cause affidavit reflects that on the night in

      question, Lindsey, Charles Benson, and Marcus Thomas were traveling on Eby

      Avenue in Fort Wayne, Indiana, in a black Chevrolet Tahoe driven by Thomas.

      They passed Holman, whom Thomas had put a “Hit” on prior to this incident.

      Appendix of Appellant at 10. Thomas placed a “Hit” on Holman in retaliation

      for a fight in a bar the night before. Id. The men also believed Holman was

      responsible for breaking into Thomas’s residence and stealing money and drugs.

      Shortly after passing Holman’s vehicle, Thomas stopped the Tahoe and began

      shooting at Holman’s vehicle. Benson exited the Tahoe and also began

      shooting at Holman’s vehicle. Benson then ran up to the driver’s side window

      and shot “point blank” at Holman. Id. Lindsey denied shooting at Holman or

      his vehicle.



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[3]   After the shooting, Lindsey and Benson drove the Tahoe to a local park and

      cleaned the interior of the vehicle with rags and bleach. Lindsey then drove the

      Tahoe to a nearby lot where he and Benson asked a friend to remove property

      from the vehicle, including two handguns and a longer firearm, and to give

      them a ride. Benson became irate after receiving a text message that Holman

      was still in critical condition and had not yet died. Benson stated to his friend

      that he “unloaded” on Holman and watched his legs twitch as he shot him. Id.

      Holman died later that evening from the gunshot wounds.


[4]   The State charged Lindsey with assisting a criminal for harboring, concealing,

      or otherwise assisting a person who has committed a crime, with the intent to

      hinder the apprehension or punishment of that person. Ind. Code § 35-44.1-2-

      5(a). Assisting a criminal is a Level 5 felony if the person assisted has

      committed murder. Ind. Code § 35-44.1-2-5(a)(2). Lindsey entered a plea of

      guilty to assisting a criminal, as charged, without the benefit of a plea

      agreement. At sentencing, the trial court found as mitigating factors Lindsey’s

      remorse, apology to Holman’s family, and the fact Lindsey pleaded guilty. The

      trial court found as aggravating factors Lindsey’s criminal history, which

      included three adjudications as a juvenile and two misdemeanor convictions as

      an adult, and the nature and circumstances of the crime as reflected in the

      probable cause affidavit. The trial court sentenced Lindsey to four years

      executed in the Department of Correction.




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                                   Discussion and Decision
[5]   Lindsey contends his sentence is inappropriate in light of the nature of the

      offense and his character. Indiana Rule of Appellate Procedure 7(B) gives

      appellate courts the authority to revise a defendant’s sentence 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.” The principal role of Appellate Rule 7(B) review is to “leaven the

      outliers,” not to determine the “correct” sentence. Satterfield v. State, 33 N.E.3d

      344, 355 (Ind. 2015) (quotation omitted). The question is not whether another

      sentence is more appropriate; the question is whether the sentence imposed is

      inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).

      “[W]hether we regard a sentence as appropriate 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 factors that come to light in a given

      case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The appellant

      bears the burden of persuading us that his sentence is inappropriate. Childress v.

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


[6]   With regard to the “nature of the offense” portion of our review, the advisory

      sentence is the starting point the legislature has selected as an appropriate

      sentence for the crime committed. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.

      2007), clarified on reh’g, 875 N.E.2d 218. Lindsey was convicted of assisting a

      criminal for assisting Benson with the intent to hinder his apprehension or

      punishment. Generally, assisting a criminal is a Class A misdemeanor;

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      however, if the person assisted has committed murder, the offense is elevated to

      a Level 5 felony. Ind. Code § 35-44.1-2-5(a)(2). The statutory sentencing range

      for a Level 5 felony is one to six years, with an advisory sentence of three years.

      Ind. Code § 35-50-2-6(b). The trial court imposed a sentence of four years

      executed in the Department of Correction.


[7]   “The nature of the offense is found in the details and circumstances of the

      commission of the offense and the defendant’s participation in it.” Washington

      v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Here, our

      review of the nature of the offense reveals that Lindsey’s actions were not

      simply “limited to the wiping down of a vehicle after the murder occurred,” as

      he argues. Brief of Appellant at 13. Lindsey did not first appear on the scene

      after the murder occurred; the probable cause affidavit lists Lindsey as an

      individual in the Tahoe when the murder occurred. Furthermore, there is no

      evidence that Lindsey attempted to dissuade his friends from the violence.

      After the shooting, instead of calling the police or attempting to help Holman,

      Lindsey helped his associates wipe down and clean the vehicle to destroy

      evidence and hinder a murder investigation. After he helped Benson eliminate

      evidence, Lindsey asked a friend to remove property from the Tahoe, including

      three weapons. This demonstrates a disregard for the law and a threat to the

      safety of the community. We cannot say his four-year sentence is inappropriate

      in light of the nature of his offense.


[8]   The “character of the offender” analysis involves evaluation of the relevant

      aggravating and mitigating circumstances and other general considerations.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015   Page 5 of 7
      Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). At the sentencing

      hearing, the trial court found Lindsey’s “juvenile and adult criminal record with

      failed efforts at rehabilitation” as an aggravating factor. Sentencing Hearing

      Transcript at 19. Although this is Lindsey’s first felony conviction, his criminal

      record begins at the age of twelve and spans a period of thirteen years. His

      criminal history consists of three juvenile adjudications and two misdemeanor

      convictions as an adult. Furthermore, these adjudications and convictions are

      accompanied by failed efforts at rehabilitation, as noted by the trial court. The

      presentence investigation report reveals at least one instance in which Lindsey’s

      probation was extended, and another in which his probation was revoked.

      Lindsey has been provided numerous opportunities to comply with the law and

      has squandered those opportunities. Lindsey’s criminal history cannot be

      ignored. But to the extent Lindsey’s criminal history reflects poorly on his

      character, this is offset by his guilty plea and remorse, as acknowledged by the

      trial court. Accordingly, our assessment of Lindsey’s character is neutral at best

      and does not justify a revision of his sentence.


[9]   Finally, Lindsey argues even if the length of the sentence is appropriate, his

      placement at the Department of Correction for four years is inappropriate.

      Under Appellate Rule 7(B), “[t]he place that a sentence is to be served is an

      appropriate focus for application of our review and revise authority.” Biddinger

      v. State, 868 N.E.2d 407, 414 (Ind. 2007). But the burden is on the defendant to

      persuade the court the location is inappropriate. Id. Here, Lindsey offers

      several alternatives that the trial court could have imposed instead of a four-


      Court of Appeals of Indiana | Memorandum Decision 02A03-1503-CR-95 | December 4, 2015   Page 6 of 7
       year executed sentence; however, he adds nothing to support why he should be

       granted one of these alternatives. Moreover, Lindsey has not demonstrated he

       can comply with the terms of a more lenient placement. Lindsey fails to

       persuade us that placement in the Department of Correction is inappropriate.



                                              Conclusion
[10]   After due consideration of the trial court’s decision and our own assessment of

       the nature of Lindsey’s offense and his character, we cannot say that Lindsey’s

       sentence is inappropriate.


[11]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




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