MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Sep 28 2018, 11:02 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Thoma                                            Curtis T. Hill, Jr.
Leonard Hammond Thoma & Terrill                          Attorney General of Indiana
Fort Wayne, Indiana                                      J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Fredrick L. Magee,                                       September 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-747
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1708-F3-46



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018                Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Fredrick L. Magee (Magee), appeals his conviction for

      Count I, rape, a Level 3 felony, Ind. Code § 35-42-4-1; Count II, sexual battery,

      a Level 6 felony, I.C. § 35-42-4-8; Count III, strangulation, a Level 6 felony,

      I.C. § 35-42-2-9; and Count IV, battery, a Class A misdemeanor, I.C. § 35-42-2-

      1.


[2]   We affirm.


                                                   ISSUES
[3]   Magee raises two issues on appeal, which we restate as the following three

      issues:


           (1) Whether the trial court properly imposed a consecutive sentence;

           (2) Whether the trial court abused its discretion in failing to consider certain

                mitigating circumstances during sentencing; and

           (3) Whether Magee’s sentence is inappropriate in light of the nature of the

                offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 2, 2017, T.J. was living on Decatur Road, in Fort Wayne, Indiana.

      T.J. had met Magee seven years ago and they had been in an “on and off”

      relationship. (Transcript p. 170). When she finished her shift at a local bar in

      the early morning of July 2, 2017, T.J. and Magee met at T.J.’s apartment

      where they were planning to have a couple of beers and to smoke some

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 2 of 10
      marijuana. Around 6:00 a.m., after having drank a couple of beers, Magee

      asked T.J. if she had Snapchat on her phone. T.J. denied having the app and

      showed Magee her phone. Magee moved from the chair where he had been

      sitting to the bed where T.J. was laying in an effort “to grab the phone because

      he thought [T.J.] was trying to hide something.” (Tr. p. 177). While they were

      fighting over T.J.’s phone, Magee became angry and started choking T.J. from

      behind, telling her she was“gonna die tonight.” (Tr. p. 180). T.J. struggled and

      unsuccessfully attempted to stand up. Instead, she was pushed up against the

      bedside table, on her knees, while Magee placed his forearm around her neck

      until he cut off her breathing. T.J. urinated and defecated all over herself and

      then passed out.


[5]   When T.J. regained consciousness, she was laying on her stomach and Magee

      was having anal sex with her. Magee finished, rolled over, and covered himself

      up. As T.J. became more fully aware of what was going on, she managed to

      separate herself from Magee and go into the bathroom. When she looked into

      the mirror, she noticed that she had a black eye, a “bite mark in her eye,” a bite

      on her ear, bruises on her neck, and blood in her hair. (Tr. p. 185). When she

      returned to the bedroom, she took her phone, went into the kitchen where she

      grabbed a knife to defend herself, and proceeded to call 911. While T.J. was on

      the phone with 911, Magee came “running out the room charging T.J.” (Tr. p.

      188). Magee eventually left the apartment and police officers arrived at T.J.’s

      apartment shortly thereafter.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 3 of 10
[6]   On August 28, 2017, the State filed an Information, charging Magee with

      Count I, rape, a Level 3 felony; Count II, sexual battery, a Level 6 felony;

      Count III, strangulation, a Level 6 felony; and Count IV, battery, a Class A

      misdemeanor. On January 30 through January 31, 2018, the trial court

      conducted a jury trial. At the close of the evidence, Magee was found guilty as

      charged. On March 2, 2018, during the sentencing hearing, Magee was

      sentenced to fourteen years executed on Count I and two years executed on

      Count III. The trial court merged Counts I and II, as well as Counts III and IV,

      and ordered the sentences to run consecutively.


[7]   Magee now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
                                           I. Consecutive Sentence


[8]   Magee first contends that the trial court abused its discretion in sentencing him

      to consecutive sentences because both crimes occurred during a single episode

      of criminal conduct.


[9]   In general, a trial court cannot order consecutive sentences in the absence of

      express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).

      “‘A sentence that is contrary to or violative of a penalty mandated by statute is

      illegal in the sense that is without statutory authorization.’” Id. (quoting Rhodes

      v. State, 698 N.E.2d 304, 307 (Ind. 1998)). Indiana Code section 35-50-1-2(c)(2)

      provides that except for statutory crimes of violence, “the total of the

      consecutive crimes of imprisonment . . . to which the defendant is sentenced for
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 4 of 10
       felony convictions arising out of an episode of criminal conduct shall not

       exceed the advisory sentence for a felony which is one (1) class of felony higher

       than the most serious of the felonies for which the person has been convicted.”

       The term “‘episode of criminal conduct’ means offenses or a series of offenses

       that are closely related in time, place, and circumstance.” I.C. § 35-50-1-2(b).


                In determining whether multiple offenses constitute an episode of
                criminal conduct, the focus is on the timing of the offenses and
                the simultaneous and contemporaneous nature, if any, of the
                crimes. Additional guidance on the question can be obtained by
                considering whether the alleged conduct was so closely related in
                time, place, and circumstance that a complete account of one
                charge cannot be related without referring to the details of the
                other charge.


       Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008). “Whether certain

       offenses constitute a single episode of criminal conduct is a fact-sensitive

       inquiry to be determined by the trial court.” Schlichter v. State, 779 N.E.2d 1155,

       1157 (Ind. 2002). The decision to impose consecutive sentences lies within the

       discretion of the trial court. Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App.

       2009).


[10]   While it is undisputed that the rape and strangulation occurred close in time,

       we are not persuaded that the two crimes are simultaneous or contemporaneous

       in nature to render them a single episode. Looking at the circumstances

       surrounding the charges, we note that the strangulation occurred out of a

       struggle over a phone. The attack was violent but not sexual in nature. The

       rape charge, however, commenced after Magee stopped strangling T.J. and she

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 5 of 10
       had passed out. While she regained consciousness, Magee anally penetrated

       her. The second attack was both violent and sexual in nature, and commenced

       after Magee had time to decide to remain with an unconscious victim and to

       perpetrate an entirely new second offense while she regained consciousness.


[11]   Furthermore, even if the two charges constitute a single episode of criminal

       conduct, the aggregate sentence does not exceed the statutory provision. See

       I.C. § 35-50-1-2(c). Magee’s highest charge is a Level 3 felony. Thus, his

       maximum sentence shall not exceed the advisory sentence for a Level 2 felony,

       which is seventeen and one-half years. See I.C. § 35-50-2-4.5. Here, the trial

       court’s imposed aggregate sentence is sixteen years. Accordingly, we find that

       the trial court did not abuse its discretion in imposing a consecutive sentence.


                                         II. Mitigating Circumstances


[12]   Next, Magee claims that the trial court abused its discretion when it failed to

       identify significant mitigating circumstances which were clearly supported by

       the record. Sentencing decisions “rest within the sound discretion of the trial

       court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v.

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

       2007). “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, and actual deductions to be drawn therefrom.” Id. A trial court may

       abuse its discretion by failing to enter a sentencing statement, entering findings

       of aggravating and mitigating facts unsupported by the record, omitting factors


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 6 of 10
       clearly supported by the record and advanced for consideration, or giving

       reasons that are improper as a matter of law. Id. at 490-91. However, a trial

       court has no obligation to properly weigh these factors, and the weight given to

       such factors is no longer subject to appellate review. Id. at 491. “Under those

       circumstances, remand for resentencing may be the appropriate remedy if we

       cannot say with confidence that the trial court would have imposed the same

       sentence had it properly considered reasons that enjoy support in the record.”

       Id.


[13]   Magee argues that the trial court failed to identify and consider the significant

       mitigating factors of community and familial support offered on Magee’s

       behalf; his desire to continue his education by going to college; and the

       hardship imposed on his two dependent children. During the sentencing

       hearing, the trial court considered the letters provided on behalf of Magee but

       rejected these statements as mitigators. Likewise, the Pre-Sentence

       Investigation (PSI) indicates Magee’s family and social support level to be

       “low.” (Appellant’s App. Vol. III, p. 10). At no point did Magee present any

       witnesses who testified on his behalf during the sentencing hearing. While

       Magee did not raise his intention during the hearing to continue his education

       by attending college, we note that the PSI makes an almost cursory mention of

       Magee listing “attending college as future educational goals.” (Appellant’s

       App. Vol. III, p. 10). With respect to the hardship Magee’s incarceration

       imposed on his two minor children, we hasten to point out that the children

       reside with their mother and do not receive any financial support from Magee.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 7 of 10
       Accordingly, while all of the proposed mitigating circumstances are briefly

       mentioned in the record, we conclude that Magee failed to establish that these

       were significant. Therefore, we find no abuse of discretion.


                                       III. Appropriateness of Sentence


[14]   Magee also argues that his sentence is inappropriate in light of his character and

       the nature of the offenses. The authority granted to this court by Article 7, § 6

       of the Indiana Constitution permitting appellate review and revision of criminal

       sentences is implemented through Appellate Rule 7(B), which provides: “The

       [c]ourt may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the [c]ourt finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” In

       performing our review, we assess “the culpability of the defendant, the severity

       of the crime, the damage done to others, and myriad of other factors that come

       to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       The principal role of such review is to attempt to leaven the outliers. Id. at

       1225. A defendant “must persuade the appellate court that his or her sentence

       has met the inappropriateness standard of review.” Angelmyer, 868 N.E.2d at

       494.


[15]   The trial court sentenced Magee to fourteen years executed on a Level 3 felony

       and two years executed on a Level 6 felony. A Level 3 felony carries with it a

       “fixed term of between six (6) and twenty (20) years, with the advisory sentence

       being ten (10) years;” while a Level 6 felony is punishable by “a fixed term of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 8 of 10
       between six (6) months and two and one-half (2 ½) years, with the advisory

       sentence being one (1) year.” See I.C. §§ 35-50-2-5; -7. Accordingly, the trial

       court imposed an aggravated sentence on each offense.


[16]   Turning to the nature of the offenses, we note that Magee inflicted multiple

       injuries on T.J. and threatened her with her life during the commission of two

       separate offenses. A trivial fight over a phone led to strangulation and T.J.

       losing consciousness. When she regained consciousness, Magee was anally

       penetrating her, leaving her bloodied from the assault.


[17]   With respect to Magee’s character, thirty-eight-year-old Magee has an extensive

       history of criminal behavior. As the trial court observed during the sentencing

       hearing, there is not a particular calendar year during his adult life that Magee

       was not locked up or has not committed a crime. As an adult, Magee

       accumulated fifteen prior misdemeanor convictions and two prior felony

       convictions. He has been convicted of operating while intoxicated four times,

       operating while suspended four times, false informing twice, public intoxication

       twice, battery resulting in bodily injury twice, domestic battery, possession of

       marijuana, and escape. Magee has had his probation revoked once, his

       probation modified once, his home detention placement revoked once, and his

       suspended sentence revoked four times. At the time of sentencing in the current

       cause, Magee also had charges pending in Allen County.


[18]   Even though Magee claimed during sentencing that he “feel[s] like this system

       has failed [him], and [he] still maintain[s] [his] innocence,” Magee failed to take


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 9 of 10
       advantage of the opportunities offered to him by the system previously. (Sent.

       Tr. p. 9). Moreover, Magee claims that “anything that [he has] done [he has]

       accepted it and [] owned up to it,” yet at the same time he painted T.J. as a liar

       at the sentencing hearing and assured the trial court that he was disappointed

       that she could “get away with accusing somebody over [] something that they

       say.” (Sent. Tr. p. 9). We conclude that the trial court did not impose an

       inappropriate sentence under Indiana Appellate Rule 7(B), and Magee’s

       sentence does not warrant appellate revision. Therefore, we decline to disturb

       the sentence imposed by the trial court.


                                             CONCLUSION
[19]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by (1) imposing consecutive sentences; and (2) sentencing Magee to an

       aggregate sentence of sixteen years.


[20]   Affirmed.


[21]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018   Page 10 of 10
