                                                                                FILED
                                                                           Jun 18 2018, 10:45 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Marcus T. Threatt, Jr.,                                   June 18, 2018

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          22A01-1710-CR-2402
        v.                                                Appeal from the Floyd Superior
                                                          Court.
                                                          The Honorable Susan L. Orth, Judge.
State of Indiana,                                         Trial Court Cause No.
Appellee-Plaintiff.                                       22D01-1512-MR-2296




Shepard, Senior Judge




Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018                            Page 1 of 5
[1]   Appellant Marcus Threatt was sentenced to twenty years with two and one-half
                                                                                 1
      years suspended upon his conviction of robbery, a Level 2 felony. Concluding

      the sentence imposed by the trial court was not inappropriate, we affirm.


                                   Facts and Procedural History
[2]   In December 2015, Threatt arranged that he and Keontez Malone would

      purchase marijuana from Threatt’s friend Charlie Fischbach. Threatt and

      Malone planned to take the marijuana without paying for it. When the three

      men met for the transaction, Fischbach resisted and Malone shot him.

      Fischbach died.

                                                    2                                        3
[3]   Threatt was charged with murder and dealing in marijuana, a Level 6 felony.

      In an open plea, he pleaded guilty to a reduced charge of robbery as a Level 2

      felony, and the State agreed to dismiss the marijuana charge. The trial court

      sentenced Threatt to twenty years with two and one-half years suspended to

      probation. He now appeals.


                                                        Issue
[4]   Threatt presents one issue for our review: whether his sentence is

      inappropriate.




      1
          Ind. Code § 35-42-5-1 (2014).
      2
          Ind. Code § 35-42-1-1(2) (2014).
      3
          Ind. Code § 35-48-4-10(c)(2)(A) (2014).


      Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018       Page 2 of 5
                                    Discussion and Decision
[5]   Although a trial court may have acted within its lawful discretion in imposing a

      sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

      independent appellate review and revision of sentences. Indiana Appellate

      Rule 7(B) provides that we may revise a sentence if, after due consideration of

      the trial court’s decision, we determine that the sentence is inappropriate in

      light of the nature of the offense and the character of the offender. Thompson v.

      State, 5 N.E.3d 383 (Ind. Ct. App. 2014). However, “we must and should

      exercise deference to a trial court’s sentencing decision, both because Rule 7(B)

      requires us to give ‘due consideration’ to that decision and because we

      understand and recognize the unique perspective a trial court brings to its

      sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.

      2007).


[6]   The principal role of appellate review under Rule 7(B) is to attempt to leaven

      the outliers, not to achieve a perceived “correct” result in each case. Garner v.

      State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). In other words, 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 (Ind. Ct. App. 2008). The defendant bears the burden of

      persuading the appellate court that his or her sentence is inappropriate.

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




      Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018    Page 3 of 5
[7]    To assess such a claim, we look first to the statutory range established for the

       class of the offense. Here, the offense is a Level 2 felony, for which the advisory

       sentence is seventeen and one-half years, with a minimum of ten and a

       maximum of thirty years. Ind. Code § 35-50-2-4.5 (2014). Although Threatt

       was sentenced to twenty years, the executed portion of his sentence is equal to

       the advisory term.


[8]    Next, we look to the nature of the offense and the character of the offender. As

       to the current offense, this was a drug deal gone bad. Threatt and Malone

       planned to grab the marijuana and run, but in the process a young man was

       killed.


[9]    As for the character of the offender, we observe that Threatt was employed full

       time at the time of his arrest and had been for several months. However, while

       he claims to have been a law-abiding citizen as an adult, he admitted that he

       used marijuana every day. Further, Threatt arranged this deal and, in doing so,

       facilitated the death of a childhood friend. At sentencing, the trial judge found

       noteworthy the fact that Threatt’s juvenile probation was terminated as

       unsuccessful.


[10]   In arguing that his sentence should be reduced, Threatt claims that his twenty-

       year sentence is too high given that Malone, the shooter, was sentenced to

       thirty years. We may compare sentences of co-defendants convicted of the

       same or similar crimes, but we are not required to do so. Clark v. State, 26

       N.E.3d 615 (Ind. Ct. App. 2014). Regardless of who pulled the trigger in this


       Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018   Page 4 of 5
       case, the result of Threatt’s criminal endeavor to obtain marijuana was the

       murder of a young father. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)

       (holding that courts are not required to “turn a blind eye to the facts of the

       incident that brought the defendant before them” and may consider as

       aggravating circumstances facts that would have supported charges dismissed

       under the plea). Yet, the State agreed to allow Threatt to plead to Level 2

       felony robbery, for which he received a sentence of twenty years, with only

       seventeen and one-half years executed. This is considerably less than the thirty

       years Malone received for his conviction of voluntary manslaughter. Even if

       the shooting was completely unexpected, as Threatt claims, he arranged the

       deal and, at the very least, set up his friend to be robbed, surely understanding

       that violence was a possibility in such a drug deal/robbery.


                                                 Conclusion
[11]   We conclude Threatt’s sentence is not inappropriate given the nature of the

       offense and his character.


[12]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018   Page 5 of 5
