                                                                                    FILED
                                                                               May 14 2020, 9:04 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Scott King                                                Curtis T. Hill, Jr.
      Lakeisha Murdaugh                                         Attorney General of Indiana
      King, Brown & Murdaugh, LLC
      Merrillville, Indiana                                     Benjamin J. Shoptaw
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      William Steve Landske,                                    May 14, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-2528
              v.                                                Appeal from the Lake Superior
                                                                Court
      State of Indiana,                                         The Honorable Rex W. Kepner,
      Appellee-Plaintiff.                                       Special Judge
                                                                Trial Court Cause No.
                                                                45G01-1808-MR-15



      Najam, Judge.


                                        Statement of the Case
[1]   William Steve Landske appeals his conviction for murder, a felony, following a

      jury trial. He presents two issues for our review:



      Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020                                  Page 1 of 11
              1.       Whether the State presented sufficient evidence to negate
                       Landske’s contention that he was acting under sudden
                       heat.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Landske and his wife, Sue Landske, were married for many years, and they ran

      various businesses together. The Landskes were friends with Tracy Edward

      “Ted” Page, a lawyer and former Lake Superior Court Magistrate, who had

      “do[ne] taxes for the Landske family” for approximately thirty years. Tr. Vol. 2

      at 121. In the course of that work, Page had accumulated scores of documents

      relevant to the Landskes’ tax returns.


[4]   Sue, a former State Senator, died in February 2015. Landske, who was then

      eighty years old, had difficulty managing his affairs, and one of his daughters,

      Cheryl Boisson, became Landske’s attorney-in-fact. Page continued in his role

      as tax preparer for the Landskes, and after Sue died, Landske continued to

      deliver tax-related documents to Page. At one point, Landske and Boisson

      dropped off eight or ten large boxes of Landske’s “tax[-]related documents” to

      Page at his home. Appellant’s Br. at 7.


[5]   In the years following Sue’s death, Landske and other family members became

      concerned and frustrated that Page had not been diligent in handling the


      Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020             Page 2 of 11
      family’s taxes, and they decided to ask Page to return their documents. Page

      agreed, and they made an appointment to meet Page at his home on August 15,

      2018. On that day, when Boisson and her sister Jackie Basilotta were visiting

      with Landske in anticipation of their meeting with Page, Boisson found

      Landske in his bedroom sitting with Sue’s ashes. Landske told Boisson that he

      was “talking to mom.” Id. at 43. Basilotta then entered the bedroom, and

      Landske began “expressing some opinions” about Page. Id. at 44. Landske

      twice asked, “what has Ted done these last three years?” Id. Basilotta then told

      Landske that he did not need to go to Page’s home—that she and Boisson

      would take care of everything. But Landske insisted that he would go with

      them.


[6]   When Landske and his daughters arrived at Page’s home in Hobart, Page and

      his husband, Kevin Swanson, met them and showed them approximately forty

      bags and boxes of documents assembled on the floor in the foyer. While

      Boisson and Basilotta began carrying boxes outside to their vehicles, Landske

      and Page left the foyer and walked outside into the yard together. Landske told

      Page he wanted to talk, put his arm around Page, and, within moments, pulled

      a handgun from his pocket and shot Page four times, first in his abdomen and

      then in his back. 1 Page fell to the ground and died immediately. One of




      1
        Landske asserts in his brief at page 11 that he shot Page twice, but the coroner’s report admitted at trial
      states that Page died from “(4) gunshot wounds.” State’s Ex. 7.

      Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020                                     Page 3 of 11
      Landske’s daughters called 9-1-1, and the officers who responded arrested

      Landske.


[7]   Later, Landske agreed to give a statement to law enforcement. Landske stated

      that he had been “pissed off” at Page because of Page’s procrastination in

      preparing his taxes. State’s Ex. 26. And Landske stated that, when he put his

      arm around Page, he knew he was going to shoot him.


[8]   The State charged Landske with murder. At his jury trial, Landske argued that

      he had killed Page in the heat of the moment as a result of Page’s provocation.

      Thus, Landske asserted that he could only be convicted of voluntary

      manslaughter, not murder. When Landske requested a voluntary manslaughter

      instruction, the parties and the trial court discussed, at length, whether there

      was a “serious evidentiary dispute” on the question of sudden heat, which is

      required to prove voluntary manslaughter. Tr. Vol. 3 at 52. The court stated

      that it was a “close call.” Id. at 72. In the end, the court instructed the jury on

      both murder and voluntary manslaughter. The jury found Landske guilty of

      murder. The trial court entered judgment of conviction and sentenced Landske

      to the advisory sentence of fifty-five years in the Department of Correction.

      This appeal ensued.


                                      Discussion and Decision
                                          Issue One: Sudden Heat

[9]   Once a defendant presents evidence of sudden heat, the State bears the burden

      of disproving its existence beyond a reasonable doubt. Whitt v. State, 91 N.E.3d

      Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020           Page 4 of 11
       1082, 1093 (Ind. Ct. App. 2018), trans. denied. Landske contends that the

       State’s evidence was insufficient to disprove his defense. In particular, Landske

       contends that the State failed to rebut the evidence that, when he shot Page, he

       was acting under sudden heat. Our standard of review on a claim of

       insufficient evidence is well settled:


               For a sufficiency of the evidence claim, we look only at the
               probative evidence and reasonable inferences supporting the
               verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
               not assess the credibility of witnesses or reweigh the evidence. Id.
               We will affirm the conviction unless no reasonable fact-finder
               could find the elements of the crime proven beyond a reasonable
               doubt. Id.


       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[10]   To prove murder, the State had to show that Landske knowingly or

       intentionally killed Page. Ind. Code § 35-42-1-1 (2019). However, if Landske

       knowingly or intentionally killed Page while acting under sudden heat, Landske

       committed voluntary manslaughter. I.C. § 35-42-1-3. In other words, the

       existence of sudden heat is a mitigating factor that reduces what otherwise

       would be murder to voluntary manslaughter. Id. Once a defendant places

       sudden heat into issue, the State bears the burden of negating the presence of

       sudden heat beyond a reasonable doubt. Earl v. State, 715 N.E.2d 1265, 1267

       (Ind. 1999). The State may meet this burden by rebutting the defendant’s

       evidence or by affirmatively showing in the State’s case-in-chief that the

       defendant was not acting in sudden heat when the killing occurred. Id.


       Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020          Page 5 of 11
       “Sudden heat exists when a defendant is ‘provoked by anger, rage, resentment,

       or terror, to a degree sufficient to obscure the reason of an ordinary person,

       prevent deliberation and premeditation, and render the defendant incapable of

       cool reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom

       v. State, 31 N.E.3d 469, 486 (Ind. 2015)). It involves an “impetus to kill” that

       arises “suddenly.” Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App.

       2010), trans. denied. Words alone, however, are not sufficient provocation to

       reduce murder to manslaughter. Id.


[11]   Here, Landske maintains that the evidence shows the shooting was a “quickly

       transpiring tragedy” that happened because he “lost it” when he saw “the ocean

       of bags that he believed Page was taking care of on his behalf.” Appellant’s Br.

       at 11. But the undisputed evidence shows that, before he arrived at Page’s

       home the day of the shooting, Landske knew there would be a large number of

       documents there, which had accumulated over many years, so that was not a

       surprise. Landske’s angry reaction upon seeing the bags and boxes was entirely

       within his control and not attributable to anything Page did to him. Landske

       had insisted that he accompany his daughters to Page’s home, after they had

       told him that he did not need to go. The Landskes had made an appointment

       with Page, and there was nothing sudden or unanticipated about Landske’s

       meeting with Page.


[12]   Landske does not contend or suggest that, other than returning the documents,

       Page did anything on August 15, 2018, to provoke him. Indeed, the evidence

       shows that, only a short time after Landske had arrived at Page’s home,

       Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020          Page 6 of 11
       Landske and Page were standing next to each other in the yard when Landske

       suddenly shot Page. Landske concedes that he and Page “were actually on

       good terms” and that there was “no heated argument or physical

       confrontation” before the shooting. Appellant’s Br. at 11. Nevertheless, he

       contends that he “became enraged when he observed the ocean of bags.” Id.

       We are not persuaded that the sight of a large number of tax-related documents

       in Page’s foyer was a provocation sufficient to cause a sudden “impetus to kill.”

       Suprenant, 925 N.E.2d at 1283. Landske confuses irritation and consternation

       with provocation.


[13]   Landske also contends that there is no evidence of premeditation, but this

       argument is misplaced. The State was not required to prove premeditation to

       convict Landske of murder. And neither does the absence of premeditation, in

       itself, show that Landske acted under sudden heat. To the extent Landske

       contends that there is insufficient evidence to prove he intended to kill Page, we

       cannot agree. It is well settled that “[t]he intent to commit murder may be

       inferred from the intentional use of a deadly weapon in a manner likely to cause

       death.” Taylor v. State, 681 N.E.2d 1105, 1111 (Ind. 1997). The evidence

       shows, and Landske admitted, that he shot Page at close range, which proves

       that he intentionally killed him. Id.


[14]   “‘Existence of sudden heat is a classic question of fact to be determined by the

       jury.’” Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999) (quoting Fisher v. State,

       671 N.E.2d 119, 121 (Ind. 1996)). The jury’s conviction of Landske for murder

       was a rejection of his sudden heat defense. Id. Findings of fact are the province

       Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020          Page 7 of 11
       of the jury. Landske asks that we reweigh the evidence on appeal, which we

       cannot do. The jury found no sudden heat, and we will not disturb its finding.

       Accordingly, we hold that in its case-in-chief the State presented evidence

       beyond a reasonable doubt that Landske was not acting under sudden heat

       when he killed Page.


                                            Issue Two: Sentencing

[15]   Landske next contends that his advisory sentence of fifty-five years is

       inappropriate in light of the nature of the offense and his character. As our

       Supreme Court has made clear:


               The Indiana Constitution authorizes appellate review and
               revision of a trial court’s sentencing decision. Ind. Const. art. 7,
               §§ 4, 6; Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). This
               authority is implemented through Indiana Appellate Rule 7(B),
               which permits an appellate court to revise a sentence if, after due
               consideration of the trial court’s decision, the sentence is found to
               be inappropriate in light of the nature of the offense and the
               character of the offender. Serino, 798 N.E.2d at 856. The
               principal role of such review is to attempt to leaven the outliers.
               Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The burden
               is on the defendant to persuade the reviewing court that the
               sentence is inappropriate. Bowman v. State, 51 N.E.3d 1174, 1181
               (Ind. 2016).


       Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam).


[16]   Further:


               Indiana Appellate Rule 7(B) is a “rare” avenue for appellate relief
               that is reserved “for exceptional cases.” Livingston v. State, 113

       Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020           Page 8 of 11
               N.E.3d 611, 612-13 (Ind. 2018) (per curiam). Even with Rule
               7(B), “[s]entencing is principally a discretionary function in
               which the trial court’s judgment should receive considerable
               deference.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)
               (quoting Cardwell, 895 N.E.2d at 1222). “Such deference should
               prevail unless overcome by compelling evidence portraying in a
               positive light the nature of the offense (such as accompanied by
               restraint, regard, and lack of brutality) and the defendant’s
               character (such as substantial virtuous traits or persistent
               examples of good character).” Id. Absent such a “sufficiently
               compelling” evidentiary basis, we will not “override the decision
               of . . . the trial court.” Id.


       Sorenson v. State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019) (alteration and

       omission original to Sorenson), trans. denied. And we have explained that the

       revision of a sentence under Appellate Rule 7(B) requires that an appellant

       “‘demonstrate that his sentence is inappropriate in light of both the nature of the

       offenses and his character.’” Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App.

       2017) (quoting Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008))

       (emphasis original to Williams), trans. denied. Regarding the nature of the

       offense, the advisory sentence is the starting point the Legislature has selected

       as an appropriate sentence for the crime committed. Childress v. State, 848

       N.E.2d 1073, 1081 (Ind. 2006). The advisory sentence for murder is fifty-five

       years, with a sentencing range from forty-five to sixty-five years. I.C. § 35-50-2-

       3. Here, again, the trial court imposed the advisory sentence of fifty-five years.


[17]   In support of his contention that his sentence is inappropriate, Landske relies on

       Griffin v. State, 963 N.E.2d 685 (Ind. Ct. App. 2012), a partially analogous case

       in which the trial court also gave both a murder and an involuntary
       Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020          Page 9 of 11
       manslaughter instruction and the defendant was convicted of murder and

       sentenced to fifty-five years. As here, the crime in Griffin was brutal. On

       appeal, Griffin contended that his sentence was inappropriate and should be

       revised pursuant to Indiana Appellate Rule 7(B). Like Landske, Griffin had no

       criminal history, cooperated with law enforcement, had served in the military,

       and was honorably discharged.


[18]   While the jury rejected Griffin’s voluntary manslaughter defense, there was

       “pervasive evidence” which showed that the homicide was in response to a

       sexual assault. Id. at 692-93. We concluded that, “[a]lthough the jury’s

       rejection of ‘sudden heat’ is sustainable on appeal, we would be less than

       diligent in our assessment of the nature of the offense if we ignored such

       evidence,” and we revised Griffin’s sentence to forty-five years. Id. at 693. In

       sum, while the sexual assault was not a mitigating factor, we held that, as the

       victim of a crime, Griffin was entitled to some consideration in sentencing.

       Griffin is distinguishable from the instant case. Here, there was nothing in

       Page’s conduct that would remotely entitle Landske to mitigation of his

       sentence. Landske’s reliance on Griffin is misplaced.


[19]   Still, Landske contends that the nature of the offense, while “horrific,” does not

       support the advisory sentence. Appellant’s Br. at 13. Again, Landske

       maintains that Page’s murder was not premeditated, but was “indisputably

       caused by sudden heat.” Id. And Landske describes the murder as having been

       the result of “tension” due to Page’s mishandling of the Landske family taxes

       and because Landske was “a depressed widower faced with potential[ly] serious

       Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020        Page 10 of 11
       IRS issues.” Id. at 13-14. However, Landske shot Page, his friend of some

       thirty years, at point blank range, over Page’s inattention to Landske’s taxes.

       And Landske committed the murder in the presence of Page’s husband and

       Landske’s daughters. We cannot say that Landske’s fifty-five-year sentence is

       inappropriate in light of the nature of the offense.


[20]   Landske also contends that his sentence is inappropriate in light of his

       character. He points out that he has no criminal history, he served in the

       military and received an honorable discharge, he confessed to killing Page, and

       he has the support of friends and family. However, we agree with the trial

       court’s description and assessment of Landske’s conduct, that whether or not

       the murder was premeditated, Landske’s behavior toward Page was methodical

       and deliberate, that he delivered not one shot but multiple shots to Page, point

       blank and at close range, all of which reflects poorly on his character. And then

       Landske calmly recounted the details of the murder to law enforcement in a

       matter-of-fact manner with no apparent indication of remorse. The trial court’s

       judgment in sentencing is entitled to considerable deference. Cardwell, 895

       N.E.2d at 1222. We cannot say that Landske’s advisory sentence is

       inappropriate in light of his character.


[21]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2528 | May 14, 2020           Page 11 of 11
