                                                                                      FILED
                                                                                 Jul 06 2018, 9:18 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Michael Gene Worden
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Corey Lamont Spurlock,                                     July 6, 2018

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1708-CR-1875
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Kurt Eisgruber, Judge
      Appellee-Plaintiff.                                        Trial Court Cause No.
                                                                 49G01-0203-MR-84150



      Sharpnack, Senior Judge.


                                       Statement of the Case
[1]   Corey Lamont Spurlock appeals the sentence imposed by the trial court at his

      resentencing. We affirm.




      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018                             Page 1 of 11
                                                       Issue
[2]   Spurlock presents one issue for our review, which we restate as: whether the

      trial court erred in resentencing him.


                                Facts and Procedural History
[3]   The facts underlying Spurlock’s convictions, as set out in his direct appeal, are

      as follows:


              On November 3, 1999, Indianapolis Police Officers received a
              report of a dead body at 2427 North Oxford Street. There were
              no signs of forced entry at the address, but once there, officers
              found the dead bodies of Michael Haddix, Jr. and Crystal
              Davenport. Haddix had been shot three times including a fatal
              wound to the back of his head. Davenport had been fatally shot
              in the forehead.
              Haddix’s father testified that it was likely that Haddix kept a gun
              in his house for protection. However, no weapon was retrieved
              from Haddix’s residence after his death. Further, Haddix’s father
              had given Haddix some money, and Haddix recently had won
              some money, but no cash was found in Haddix’s home after his
              death.
              On November 12, 1999, Aurelia Mason heard gunshots coming
              from the residence of her next-door neighbors. When police
              officers arrived, there was no sign of forced entry at 2960 North
              Park Avenue, but officers found the dead bodies of Benjamin
              Boone and Doris Johnson [Johnson]. Boone had been fatally
              shot in the back of the head and neck. Johnson had been fatally
              shot three times in the back of the head and neck.
              Boone and Johnson both used crack cocaine in their house.
              There was also a gun inside the house. Ronald Freeman,
              Boone’s friend, was at Boone’s house in the evening on
              November 11, 1999. Freeman smoked crack cocaine with Boone

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018     Page 2 of 11
         and Johnson, and then left shortly after two other men arrived at
         Boone’s house. Freeman testified that as he walked away from
         the house he heard gunshots and saw the flash from a gun being
         fired. Police officers recovered several spent shell casings from
         the residence in addition to bullet fragments.
         In March of 2002, during the course of another investigation,
         homicide detectives received information about a suspect in the
         four murders named “Lolo” and the location where “Lolo” lived.
         Detectives contacted Defendant’s grandmother who told them
         that Defendant’s nickname was “Lolo.” Detective Roy West
         asked Defendant’s grandmother to have Defendant contact him.
         That same day West received a phone call from Defendant.
         Defendant agreed to meet with West at the police headquarters
         the next day after Defendant finished work.
         On March 7, 2002, Defendant arrived at police headquarters to
         discuss the four homicides that are the subject of this appeal.
         Defendant was shown some photographs to determine if he
         could identify any individuals included in the photo arrays.
         Defendant confirmed that one of his nicknames was “Lolo.”
         Detectives West and Tudor advised Defendant of his rights and
         questioned him further about the homicides. Defendant made
         audio-taped statements to the detectives regarding the two
         incidents in November of 1999. Defendant identified Terrence
         Swann and Anthony “Banks” Johnson [Banks] as the primary
         perpetrators of the homicides that were committed as part of the
         robberies of those victims. Defendant returned home after giving
         those statements to the detectives.
         The following day, Defendant telephoned Detective West and
         informed him that he was no longer going to cooperate with the
         police, and that what he had told them the previous day was not
         true.
Spurlock v. State, No. 49A05-0305-CR-247, slip op. at 2-4 (Ind. Ct. App. May 6,

2004).



Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018    Page 3 of 11
[4]   On March 26, 2002, the State charged Spurlock with four counts of murder,1

      two counts of conspiracy to commit robbery, both as Class A felonies,2 and two

      counts of robbery, both as Class A felonies.3 In March 2003, a jury trial was

      held, at the conclusion of which the jury returned verdicts of guilty on all

      counts. At sentencing, the trial court merged the two robbery convictions into

      the two conspiracy convictions and sentenced Spurlock to forty-five years on

      each of the four murder convictions, twenty years on one conspiracy

      conviction, and thirty years on the other conspiracy conviction. All the terms

      were to be served concurrently except the thirty years, which was to be served

      consecutively to the other terms, for an aggregate sentence of seventy-five years.

      Spurlock filed a direct appeal, and, on May 6, 2004, this Court issued a

      memorandum decision affirming his convictions. See Spurlock, No. 49A05-

      0305-CR-247.


[5]   In March 2005, Spurlock filed a petition for post-conviction relief, which the

      trial court dismissed without prejudice on September 8, 2008, for failure to

      prosecute. In October 2014, Spurlock again filed a petition for post-conviction

      relief, which was later amended. Following a hearing and the filing of

      proposed findings by the parties, the trial court denied Spurlock’s petition.

      Spurlock appealed, and, in February 2017, a panel of this Court affirmed in part




      1
          Ind. Code § 35-42-1-1 (1997).
      2
          Ind. Code §§ 35-41-5-2 (1977), 35-42-5-1 (1984).
      3
          Ind. Code § 35-42-5-1.

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018    Page 4 of 11
      and reversed in part the decision of the post-conviction court. See Spurlock v.

      State, No. 49A05-1609-PC-1976 (Ind. Ct. App. Feb. 17, 2017). It was

      determined that Spurlock’s appellate counsel was ineffective for failing to raise

      a sentencing error, specifically that the bodily injury stemming from Spurlock’s

      murder convictions was used also as the basis for elevating his conspiracy

      convictions to Class A felonies. See id., slip op. at 18. Consequently, the case

      was remanded to the trial court for entry of judgment of conviction on the

      conspiracy counts to be reduced from Class A felonies to Class B felonies and

      for resentencing.


[6]   On remand, the trial court resentenced Spurlock in July 2017 to a total of sixty-

      five years. He received forty-five years for each of the four murders and ten

      years for one of the conspiracy counts, all to be served concurrently. In

      addition, the trial court sentenced him to twenty years on the second conspiracy

      count, to be served consecutively to the other counts. He now appeals this

      sentence.


                                    Discussion and Decision
[7]   Spurlock argues the trial court erred in resentencing him because his sentence

      does not conform to the dictates of Blakely v. Washington, 542 U.S. 296, 124 S.

      Ct. 2531, 159 L. Ed. 2d 403 (2004). Blakely applies and further explains the rule

      previously set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147

      L. Ed. 2d 435 (2000) prohibiting the reliance on facts not found by a jury or

      admitted by the defendant to enhance a sentence above the presumptive, with


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018   Page 5 of 11
      the exception of criminal history. Blakely, 124 S. Ct. at 2536. We must first

      determine whether Blakely applies to the present case.


[8]   Spurlock committed these crimes in 1999; he was originally sentenced in 2003;

      Blakely was decided in 2004; Spurlock was resentenced in 2017. The fact that

      Spurlock’s crimes and original sentencing hearing took place pre-Blakely does

      not preclude him from being entitled to the Blakely protections upon

      resentencing post-Blakely. See Ben-Yisrayl v. State, 908 N.E.2d 1223, 1230-31

      (Ind. Ct. App. 2009) (holding that defendant was entitled to resentencing

      hearing that complied with dictates of Blakely even though he committed crimes

      long before Blakely was decided and was resentenced after Blakely was decided),

      trans. denied. Having determined that Spurlock was entitled to the protections of

      Blakely at his resentencing, we turn to his failure to raise a Blakely objection

      during the resentencing process.


[9]   In his brief to this Court, Spurlock concedes that he failed to make a Blakely

      objection at his resentencing hearing. Appellant’s Br. p. 15. A claim is

      generally considered forfeited or waived if it is not raised in the trial court.

      Smylie v. State, 823 N.E.2d 679, 689 (Ind. 2005). Although stating this general

      rule, in Smylie our supreme court rejected such an argument because

      defendant’s trial counsel could not have anticipated the holding of Blakely

      before it was even issued. Here, however, Spurlock’s resentencing hearing was

      held in 2017, more than thirteen years after the Blakely decision and more than

      twelve years after the Smylie decision. As the issue was settled and well-known

      by the time of Spurlock’s resentencing hearing, we conclude an objection was
      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018     Page 6 of 11
       required to preserve the issue for appeal. See Smylie, 823 N.E.2d at 689 (stating

       it is entirely possible for defendants to waive or forfeit their ability to appeal

       their sentence on Blakely grounds).


[10]   In an attempt to avoid forfeiture of his claim, Spurlock asserts fundamental

       error. The fundamental error doctrine is extremely narrow and applies only

       when the error amounts to a blatant violation of basic principles, the harm or

       potential for harm is substantial, and the resulting error denies the defendant

       fundamental due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App.

       2010), trans. denied. Thus, this doctrine is available only in egregious

       circumstances. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).


[11]   Spurlock’s claim concerns the second of his two conspiracy convictions, which

       upon remand was entered as a Class B felony. At the time Spurlock committed

       these crimes in 1999, Indiana Code section 35-50-2-5 (1977)4 provided:


                A person who commits a Class B felony shall be imprisoned for a
                fixed term of ten (10) years, with not more than ten (10) years
                added for aggravating circumstances or not more than four (4)
                years subtracted for mitigating circumstances. In addition, he
                may be fined not more than ten thousand dollars ($10,000).




       4
         Although a major revision to our sentencing statutes took effect on April 25, 2005, replacing the
       presumptive sentencing scheme with an advisory sentencing scheme, here we apply the presumptive
       sentencing scheme that was in effect at the time Spurlock committed these crimes in 1999. See Gutermuth v.
       State, 868 N.E.2d 427, 431 n.4 (Ind. 2007) (explaining that 2005 revisions to sentencing statutes did not alter
       long-standing rule that sentencing statute in effect at time crime is committed governs sentence for crime).



       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018                            Page 7 of 11
[12]   At the resentencing hearing, the trial court sentenced Spurlock to an enhanced

       term of twenty years on the second conspiracy conviction involving the robbery

       and murders of Boone and Johnson on November 12. As applied to Indiana’s

       presumptive sentencing scheme under which Spurlock was sentenced, Blakely

       prohibits the reliance on facts not found by a jury or admitted by the defendant

       to enhance a sentence above the presumptive, with the exception of criminal

       history. 124 S. Ct. at 2536. Accordingly, upon resentencing, the trial court

       could not enhance Spurlock’s sentence based on additional facts unless those

       facts are either (1) a prior conviction, (2) facts found by a jury beyond a

       reasonable doubt, (3) facts admitted by Spurlock, or (4) facts found by the

       sentencing judge after Spurlock waived his Blakely rights and consented to

       judicial factfinding. See Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007).


[13]   At Spurlock’s resentencing, the trial court stated, “That 20 years is aggravated

       based, as [original sentencing judge] indicated, going in a second time and I

       think that justifies an aggravated sentence.” Resent’g Tr. pp. 41-42. The trial

       court was referring to these comments of the trial judge at Spurlock’s original

       sentencing hearing:


               Count VII, conspiracy to commit robbery, this is the robbery of
               Benjamin Boone and Doris Johnson that was committed seven
               days after the robbery and murders of Crystal Davenport and
               Michael Haddix – the Court is going to find that the aggravators
               and mitigators weigh on that because the Court is going to add
               the aggravating circumstance that you knew what had happened
               during the first robbery and you went back for a second robbery –
               you conspired with these people in this second robbery so the
               Court’s going to give you 30 years on Count VII.
       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018       Page 8 of 11
               ******
               Again, Mr. Spurlock, the evidence in this case is that you were
               addicted to heroin – you and your drug buddies, your fellow
               heroin addicts did the first robbery, and during the course of that
               robbery – even if you didn’t know that your friends were horrible
               murderers, but after your friends killed Crystal Davenport and
               Michael Haddix on November the 3rd, you went back with them
               on November the 8th [sic] to do another robbery of another set of
               drug dealers, and the fact that even – even though you weren’t
               the trigger man, you knew what they had done, you knew what
               they were capable of, you knew what had happened in the first
               robbery – in your statement to the police officer, your own
               words, you were – you may have been afraid to tell but you had
               no business going with them the second time, but you did, and
               you are responsible.
       Sent’g Tr. pp. 34, 35.


[14]   The fact that Spurlock participated in the second drug-related robbery/murders

       with full knowledge of what had occurred during the first drug-related

       robbery/murders is a Blakely permissible reason for enhancing his sentence

       because it is based on facts found by a jury beyond a reasonable doubt. The

       information as well as the jury instructions charged that Spurlock participated

       in the first robbery/murders on or about November 3, 1999 and the second

       robbery/murders on or about November 12, 1999. See Appellant’s Appendix

       Direct Appeal Vol. 1, pp. 38-42, 174-188. In support of these charges, at trial

       the State presented Spurlock’s statements to police, which were admitted into

       evidence. In his statements, Spurlock acknowledged that he went with Swann

       and Banks to the Haddix/Davenport residence and saw Swann shoot

       Davenport in the head. Direct Appeal Exhibits Vol. 1, pp. 162, 165. Further,

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018   Page 9 of 11
       the State presented the testimony of one of the responding police officers that he

       found two bodies in a residence on North Oxford Street (i.e., the

       Haddix/Davenport residence) on November 3, 1999. Direct Appeal Tr. Vol. 1,

       pp. 59, 60, 64.


[15]   In his statements to police, Spurlock also discussed going to the

       Boone/Johnson residence with Swann and Banks. Direct Appeal Exhibits Vol.

       1, pp. 128-29. In addition, Aurelia Mason, the next-door-neighbor of Boone

       and Johnson, testified that she heard gunshots on November 12, 1999 at

       approximately 1:19 a.m. Direct Appeal Tr. Vol. 1, pp. 94-97. Finally, Ronald

       Freeman, a friend of Boone’s testified that he was at the Boone/Johnson

       residence from approximately 7:30 p.m. on November 11, 1999 to

       approximately 1:00 a.m. on November 12, 199 getting high with Boone and

       Johnson on crack cocaine and heroin. Id. at 123. He explained that two men

       came to the front door and were admitted into the residence by Boone and that

       soon thereafter he left. As he was walking away from the house, he heard gun

       shots and saw a flash in the window. Id. at 128-29.


[16]   The fact that Spurlock participated in the second robbery/murders after he

       participated in the first robbery/murders is implicit in his convictions on all

       charges. All the evidence at trial showed that the first robbery/murders

       occurred on or about November 3—with Spurlock present—before the second

       robbery/murders occurred on or about November 12, at which Spurlock was

       also present. Therefore, implicit in the jury’s verdicts is the finding beyond a

       reasonable doubt that Spurlock embarked on the second effort to rob drug

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018   Page 10 of 11
       dealers with full knowledge that the first robbery had resulted in murder of the

       victims. Hence, this fact could properly be relied on to enhance his sentence.

       Cf. Ryle v. State, 842 N.E.2d 320, 323-25 (Ind. 2005) (holding that trial court

       could properly enhance sentence without violating Blakely based on fact that

       defendant was on probation at time of current offense if finding rested on prior

       judicial records as reflected in presentence investigation report prepared by

       probation officer).


                                                  Conclusion
[17]   In light of these circumstances, we conclude that Spurlock has not met his

       burden of showing that the enhancement of his sentence based upon facts

       implicit in his convictions resulted in error that denied him fundamental due

       process. Accordingly, we find no fundamental error.


[18]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1875 | July 6, 2018   Page 11 of 11
