MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Jan 28 2020, 7:54 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
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Clark County Public Defender’s Office                    Attorney General of Indiana
Jeffersonville, Indiana                                  Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marial Mabut Wel,                                        January 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1950
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Vicki L.
Appellee-Plaintiff.                                      Carmichael, Judge
                                                         Trial Court Cause No.
                                                         10C04-1801-MR-1



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1950 | January 28, 2020            Page 1 of 7
[1]   Marial Mabut Wel appeals his advisory sentence for murder. We affirm.


                                      Facts and Procedural History

[2]   Wel was born in 1981, moved to Louisville, Kentucky, in 2001, and married

      Josephine Amon in 2004. Wel and Amon had four children together, and they

      separated in approximately October 2017. Sometime between 1:30 a.m. and

      3:45 a.m. on January 21, 2018, Wel went to the residence at which Amon was

      living in Jeffersonville, argued with her, drew a gun, shot her, moved toward

      her body which had fallen on the floor, and shot her a second time. Amon

      suffered gunshot wounds to her shoulder and head. Wel’s thirteen-year-old

      daughter was at the apartment and watched Wel kill Amon. Wel ordered his

      daughter to retrieve her mother’s keys and then to leave with him. They

      walked to another location in the apartment complex where Wel had parked his

      vehicle, which was away from Amon’s apartment, and Wel drove them to

      Louisville. Wel’s daughter called her mother’s family, and Wel took the phone

      from her and threatened to kill them. Wel stopped at the Jefferson County Hall

      of Justice, placed his gun and ammunition in a trash can and cigarette

      receptacle, stayed until police arrived, and told police that he had killed his wife

      and where the murder weapon was located.


[3]   On January 22, 2018, the State charged Wel with murder and filed a notice of

      intent to seek an enhanced penalty for use of a firearm. Wel and the State

      entered into a plea agreement pursuant to which Wel agreed to plead guilty to

      murder and the State agreed to dismiss the firearm enhancement. The plea

      agreement provided that the executed portion of Wel’s sentence would be
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1950 | January 28, 2020   Page 2 of 7
      capped at fifty-five years. At the guilty plea hearing, Wel admitted the

      allegations in the probable cause affidavit were true and support the charge

      against him and pled guilty to murder pursuant to the plea agreement.


[4]   At sentencing, a social worker who provided mental health services for Clark

      County Jail testified that she met with Wel and completed a mental health

      evaluation. The written evaluation indicated that Wel stated that he is from

      Sudan, that he had witnessed mass murders including watching family

      members die, that he was five years old when his father died, that when he was

      six years old his village was attacked and he believed no one in his immediate

      family survived, and that he lived in a refugee camp with thousands of people

      for nine years. According to the evaluation, Wel stated that he began hearing

      voices and seeing the image of someone who wanted to cause him harm years

      ago, the voices and image would tell him to harm others or himself, that he had

      no memory of what happened the night his wife died, and that he thinks she is

      still alive. The evaluation stated that Wel reported that he had been seen by

      multiple doctors over the years, the doctors did not find anything wrong and he

      was prescribed Ibuprofen, he was not referred to a mental health provider or a

      psychiatrist while he was being treated at his primary care doctor or the

      emergency room, and a spiritual healer came to his house “to cleanse his family

      and house of ‘this thing’ that has [sic] living in his body.” Appellant’s

      Appendix Volume II at 35. On cross-examination, the social worker indicated

      the information in her evaluation was self-reported and she was not able to

      corroborate Wel’s claims. One of Wel’s children testified that, ever since his


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1950 | January 28, 2020   Page 3 of 7
      father killed his mother, every day he goes to Amon’s gravesite, sits there, and

      cries. The daughter of Wel who observed the shooting testified that she saw

      everything that happened, that the fact Wel killed her mother right in front of

      her when he knew she was there was horrible, and that it made her feel like he

      never cared about her because he placed her in that position. She testified that

      she was very close to her mother and that Wel killed her mother out of hatred.

      Amon’s father testified that Amon’s daughter called him and told him that Wel

      had killed Amon, that Wel grabbed the phone from her and said “I want to find

      you” and “I want to kill you” and that he was planning to kill more people in

      the family. Transcript Volume II at 30. He also testified that Wel previously

      threatened to shoot a roommate due to a disagreement about money.


[5]   The prosecutor argued that Wel shot Amon in front of their thirteen-year-old

      daughter, that after she fell to the ground he kicked her body to see if she was

      dead and then shot her in the head, and that the killing was a cold-blooded

      execution. Wel’s defense counsel argued that the mental health evaluation

      described a traumatic childhood and that he has dealt with some undiagnosed

      psychiatric issues and that these issues possibly led Wel to the incident that took

      a life. He argued that a trial would have been significantly worse for the family.

      He asked that, in light of Wel’s mental health, minimal criminal history, work

      history, cooperation with police as soon as the crime happened, and guilty plea,

      the court sentence Wel to forty-five years or to the advisory with a suspended

      term as the court deemed appropriate. Wel stated that there was the violence of

      war when he was young in Sudan, that he had seen his father and others killed


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1950 | January 28, 2020   Page 4 of 7
      in front of him, that he has wanted to kill himself, that he did not know what he

      had done until he was driving and his daughter told him that he had shot her

      mother, that he had gone there to pick up the children’s clothes because he went

      to church with them every Sunday, and “I don’t even know why, how this

      happened here, because of my, it’s my, of my history since I was young.” Id. at

      36-37. The court found Wel’s prior criminal history and that he committed the

      crime of violence in front of a child less than eighteen years of age to be

      aggravating circumstances, that Wel’s work history was a mitigating

      circumstance, and that the aggravating circumstances outweighed the

      mitigating circumstance. The trial court sentenced Wel to fifty-five years.


                                                   Discussion

[6]   The issue is whether Wel’s sentence is inappropriate in light of the nature of the

      offense and his character. Ind. Appellate Rule 7(B) provides that we “may

      revise a sentence authorized by statute if, after due consideration of the trial

      court’s decision, [we find] that the sentence is inappropriate in light of the

      nature of the offense and the character of the offender.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[7]   Wel argues that his sentence is inappropriate and that ten years of his sentence

      should have been suspended. He argues that the circumstances of his offense

      were akin to voluntary manslaughter. He also argues that he saw his father

      killed when he was five years old, that he lived with thousands of other

      refugees, and that the traumatic experiences caused him psychiatric issues. The
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1950 | January 28, 2020   Page 5 of 7
      State responds that Wel’s use of a handgun to murder the mother of his

      children in front of his thirteen-year-old daughter justified his advisory sentence.

      It also argues that Wel has a history of violence, that his mental health and

      difficult childhood do not warrant a lesser sentence, and that Amon had

      nothing to do with Wel’s experiences thirty years earlier.


[8]   Our review of the nature of the offense reveals that Wel drove to Amon’s

      apartment in the early morning, parked his vehicle away from the building,

      brought a gun inside, argued with her, shot her in the shoulder and in the head

      in front of his thirteen-year-old daughter, told his daughter to take Amon’s keys

      and leave with him, and while driving with his daughter in the vehicle

      threatened to kill Amon’s family. Our review of Wel’s character reveals that he

      pled guilty to murder and that in exchange the State agreed to a maximum

      executed sentence of fifty-five years and to dismiss the firearm enhancement.

      According to the presentence investigation report (“PSI”), Wel was arrested for

      domestic battery in 2006 for which he was later sentenced to ninety days and

      “Assault 4th Degree Domestic Violence Minor Injury” in 2007 for which he

      received “120 days jail, 78 days suspended, conditional discharge 2 years.”

      Appellant’s Appendix Volume II at 79. It also indicates he was arrested for

      “Domestic Battery-Bodily Harm” in June 2010 and the disposition was

      unknown. Id. The PSI, under mental health, states that Wel reported he was

      not sure what he is diagnosed with, he often hears voices, he has suffered from

      this since he was in Sudan, and he is currently prescribed Depakote and a

      medication to help him sleep. The PSI also indicates that Wel owned a home


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1950 | January 28, 2020   Page 6 of 7
       and vehicle, had student loan debt, and was employed full-time as a welder for

       the same employer for ten years prior to his arrest. The trial court was able to

       consider the mental health evaluation prepared by the social worker and her

       testimony as well as Wel’s statement regarding his health and childhood. After

       due consideration, we conclude that Wel has not sustained his burden of

       establishing that his sentence is inappropriate in light of the nature of the

       offense and his character. 1


[9]    For the foregoing reasons, we affirm Wel’s advisory sentence for murder.


[10]   Affirmed.


       Baker, J., and Riley, J., concur.




       1
         To the extent Wel argues that the court abused its discretion in sentencing him, we need not address this
       issue because we find that his sentence is not inappropriate. See Chappell v. State, 966 N.E.2d 124, 134 n.10
       (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating
       factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind.
       2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand
       for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g
       denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is
       found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the
       sentence imposed was not inappropriate”), trans. denied), trans. denied. Even if we were to address Wel’s
       abuse of discretion argument, we would not find it persuasive. Wel raised his difficult childhood and mental
       health issues at sentencing, he received a benefit by pleading guilty pursuant to the plea agreement, and his
       criminal history was not so remote or unrelated to the instant offense such that consideration of it as an
       aggravator constituted an abuse of discretion.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1950 | January 28, 2020                      Page 7 of 7
