MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Oct 14 2015, 8:31 am
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
Mark A. Bates                                            Gregory F. Zoeller
Appellate Public Defender                                Attorney General of Indiana
Lake County Public Defender
                                                         Richard C. Webster
Crown Point, Indiana                                     Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Marcus II,                                       October 14, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1407-CR-230
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff.                                      Murray, Judge
                                                         Trial Court Cause No.
                                                         45G02-1011-MR-15



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015   Page 1 of 6
[1]   Matthew Marcus II pleaded guilty to voluntary manslaughter, 1 a Class A

      felony, and was sentenced to thirty-five years executed. He appeals and raises

      the following restated issue for our review: whether his sentence was

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

      offender.


[2]   We affirm.


                                       Facts and Procedural History
[3]   The stipulated facts of the crime establish that, on November 8, 2010, Marcus

      was a guest of the victim, Tishwanda Reynolds, at her residence located in Lake

      County, Indiana. Marcus attempted to initiate sexual contact with Reynolds,

      but she refused his advances. Marcus became angry and strangled her with his

      belt and his hands, which caused Reynolds’s death.


[4]   The State charged Marcus with murder and later amended the information to

      add an additional count of voluntary manslaughter. Marcus and the State

      entered into a plea agreement, in which Marcus would plead guilty to Class A

      felony voluntary manslaughter, and the State would dismiss the murder charge.

      The parties agreed that each party would be free to argue their respective

      positions as to the sentence to be imposed, and the sentence was to be capped at

      a term of thirty-five years. At the guilty plea hearing, Marcus entered a plea of




      1
          See Ind. Code § 35-42-1-3.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015   Page 2 of 6
      guilty to voluntary manslaughter as a Class A felony, and the stipulated facts

      were accepted as the factual basis for the plea. The trial court accepted the plea

      agreement.


[5]   At sentencing, Marcus’s father and his aunt testified on his behalf. Reynolds’s

      mother, sister, and cousin testified regarding the impact they had experienced

      based on Marcus’s killing of Reynolds. Marcus argued as mitigating factors

      that he had no criminal history, he was remorseful, the crime was the result of a

      situation unlikely to reoccur, he pleaded guilty and cooperated with the police,

      and he called 911 to report his crime. The State argued as aggravating factors

      that the crime was brutal in nature as Marcus used both his belt and hands to

      strangle the victim, the killing occurred in front of Reynolds’s infant son, and

      after the killing, Marcus did not immediately call 911, but rather, called his

      family members in Indianapolis.


[6]   The trial court found as mitigating factors that Marcus had no criminal history,

      he admitted his guilt by pleading guilty and saved the time and expense of a

      trial, and he expressed remorse for his crime. The trial court found as

      aggravating factors the nature and circumstances of the crime, characterizing

      the crime to be cold-blooded and ruthless. The trial court then sentenced

      Marcus to thirty-five years executed in the Department of Correction. Marcus

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015   Page 3 of 6
                                     Discussion and Decision
[7]   Marcus argues his sentence is inappropriate. Under Indiana Appellate Rule

      7(B), “we may revise any sentence authorized by statute if we deem it to be

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

      offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). The

      question under Appellate Rule 7(B) is not whether another sentence is more

      appropriate; rather, the question is whether the sentence imposed is

      inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the

      defendant’s burden on appeal to persuade the reviewing court that the sentence

      imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,

      133 (Ind. Ct. App. 2012), trans. denied.


[8]   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 case.” Id. at 1224.


[9]   Marcus pleaded guilty to voluntary manslaughter as a Class A felony. A person

      who commits a Class A felony shall be imprisoned for a fixed term of between

      twenty and fifty years, with the advisory sentence being thirty years. Ind. Code


      Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015   Page 4 of 6
       § 35-50-2-4. Here, pursuant to the plea agreement between Marcus and the

       State, Marcus agreed that his possible sentenced would be capped at thirty-five

       years. At sentencing, the trial court imposed the cap of thirty-five years as

       Marcus’s sentence.


[10]   As to the nature of the offense, Marcus contends that his sentence is

       inappropriate because the nature of the killing did not warrant the sentence

       imposed as his ability to reason was “obscured,” and he was not capable of

       “acting deliberately.”2 Appellant’s Br. at 9. Here, the nature of the offense is that

       Marcus killed Reynolds in her home, where he was a guest, and in the presence

       of her infant son. Marcus strangled Reynolds with his belt and with his hands

       because she refused him when he tried to initiate sex with her. Choking

       Reynolds with both his belt and his hands was more than was necessary to

       complete the crime and demonstrates the brutality involved in the crime. This

       was a crime that did not happen in an instant and required significant force to




       2
         We note that, although not argued as an abuse of discretion, Marcus’s argument is interspersed with
       contentions that the trial court found an “inappropriate aggravator” when it referred to the nature of the
       offense as “cold blooded” and “ruthless.” Appellant’s Br. at 8, 9, 10. As our Supreme Court has made clear,
       inappropriate sentence and abuse of discretion claims are to be analyzed separately. See Anglemyer v. State,
       868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). We, therefore, take this
       opportunity to, again, clarify that an inappropriate sentence analysis does not involve an argument that the
       trial court abused its discretion in sentencing the defendant. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App.
       2008). An abuse of discretion at sentencing occurs when the trial court “fails to enter a sentencing statement
       . . . enters a sentencing statement that explains reasons for imposing a sentence but the record does not
       support the reasons, or 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.” Anglemyer, 868 N.E.2d at
       490.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015              Page 5 of 6
       accomplish. We, therefore, conclude that the nature of the offense does not

       establish that Marcus’s sentence was inappropriate.


[11]   As to his character, the evidence showed that Marcus did not have a prior

       criminal history, that he pleaded guilty, and that he showed remorse for his

       crime. However, the fact that, when Reynolds refused to have sex with him,

       Marcus became so angry that he strangled her to death demonstrates poor

       character on Marcus’s behalf. We conclude that Marcus’s character does not

       show that his sentence is inappropriate, especially in light of the fact that in

       order to demonstrate that his sentence is inappropriate, Marcus was required to

       establish that his sentence is inappropriate in light of both the nature of the

       offense and the character of the offender. See Williams v. State, 891 N.E.2d 621,

       633 (Ind. Ct. App. 2008) (“revision of a sentence under Indiana Appellate Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of both the nature of his offenses and his character”) (emphasis in original).

       We do not find Marcus’s sentence to be inappropriate in light of both the nature

       of the offense and his character.


[12]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-230 | October 14, 2015   Page 6 of 6
