MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                       Oct 01 2019, 8:32 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean C. Mullins                                          Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana                                     Josiah J. Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marcus Lamont Weston,                                    October 1, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1023
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1807-F3-49



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019                     Page 1 of 6
                                          Case Summary
[1]   Marcus Lamont Weston (“Weston”) pleaded guilty to Aggravated Battery, as a

      Level 3 felony,1 for which he received a sentence of thirteen years

      imprisonment. He asks that, pursuant to Indiana Appellate Rule 7(B), we

      revise his sentence as inappropriate and that we remand for clarification as to

      whether his sentence should include a recommendation for therapeutic

      community participation. We affirm his sentence term but remand for

      clarification.



                                Facts and Procedural History
[2]   On July 5, 2018, Weston encountered his friend, Joseph Holder (“Holder”),

      walking with Laketa Leonard (“Leonard”), whom Weston regarded as his

      girlfriend. Weston slapped Leonard and stabbed Holder in the chest, using a

      pocketknife. Weston took $187.00 from Holder’s pants pocket and threatened

      to “put thirty rounds” into Holder. (App. Vol. II, pg. 12.) Holder was able to

      stumble away, but he fell and hit his head on rocks and a train track.

      Bystanders assisted Holder to a hospital, where he was treated for his injuries.

      Holder identified Weston as his assailant and police officers located Weston the

      following day; however, Weston provided a fictitious name.




      1
          Ind. Code § 35-42-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019   Page 2 of 6
[3]   On July 7, 2018, the State charged Weston with aggravated battery and

      robbery. The charges were subsequently amended to add two counts of robbery

      and one count of false informing. On February 21, 2019, Weston pleaded

      guilty to aggravated battery and the remaining charges were dismissed. An

      unrelated drug dealing charge was also dismissed as part of Weston’s plea deal

      with the State.


[4]   On April 4, 2019, the trial court imposed upon Weston a sentence of thirteen

      years imprisonment, with none suspended. He now appeals.



                                 Discussion and Decision
                                Appropriateness of Sentence
[5]   The sentencing range for a Level 3 felony is between three years and sixteen

      years, with nine years as the advisory sentence. I.C. § 35-50-2-5. Finding

      Weston’s criminal history and violation of parole to be aggravators, the trial

      court sentenced him to four years above the advisory sentence.


[6]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the

      Court 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 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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019   Page 3 of 6
      an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve

      our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d

      157, 165 (Ind. 2017). The “considerable deference” given to the trial court’s

      sentencing judgment “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).” Stephenson

      v. State, 29 N.E.3d 111, 122 (Ind. 2015) (citing Cardwell, 895 N.E.2d at 1222).


[7]   The nature of the offense involves the details and circumstances of the crime

      and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.

      2017). Weston, in an act of revenge, stabbed his friend in the chest with a

      pocketknife. As Weston observes, Holder was able to walk away and seek

      medical attention. Notably, however, Weston did not assist Holder; rather,

      Weston rifled through Holder’s pockets and took his cash. He also verbally

      threatened to shoot Holder. The nature of the offense does not suggest that

      sentence revision is warranted.


[8]   The character of the offender is found in what courts learn of the offender’s life

      and conduct. Id. Weston asserts that the “negative aspects” of his character are

      largely “born of an untreated addiction to alcohol.” Appellant’s Brief at 11.

      Weston has a significant criminal history, consisting of seven felony convictions

      and thirteen misdemeanor convictions. He was on parole from the State of

      Wisconsin when he committed the instant offense. Thus, he has been afforded

      rehabilitative services in the past, without success. His decision to plead guilty

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019   Page 4 of 6
       indicates some acceptance of responsibility for his actions; however, he also

       received a significant benefit when other charges were dismissed. What we

       have learned of his character does not militate toward a lesser sentence.


[9]    Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision.


                                    Remand for Clarification
[10]   At the sentencing hearing, Weston admitted to an alcohol addiction and

       requested placement in a purposeful incarceration program or, alternatively, a

       therapeutic community. The trial court briefly discussed “time cuts” and

       addressed Weston: “I don’t have any problem with you getting into whatever

       programs you want to get into, but that’s up to you.” (Tr. Vol. II, pg. 34.) At

       the conclusion of the oral sentencing statement, the trial court again addressed

       Weston: “I’ll put in the sentencing order, Mr. Weston, to try to help you out a

       little bit, that I will recommend that you get yourself into a therapeutic

       community, but that’s up to you. You need to work at it. Get your time cuts.”

       Id. at 36. However, neither the written sentencing order nor the abstract of

       judgment included a recommendation for Weston’s placement in the Indiana

       Department of Correction Therapeutic Community. The abstract of judgment

       included a box with a notation that Weston was not a participant in a

       purposeful incarceration program.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019   Page 5 of 6
[11]   When the trial court intends to make a placement recommendation, this should

       be reflected in the abstract of judgment. See Hogan v. State, 95 N.E.3d 181, 184-

       85 (Ind. Ct. App. 2018). When, as here, we are confronted with a conflict

       between the oral sentencing statement and the written sentencing statement, we

       may remand for clarification. McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007).

       We remand with instructions for the trial court to clarify whether it intended to

       make a placement recommendation for Weston and, if so, to correct the

       judgment of conviction and the abstract of judgment.



                                               Conclusion
[12]   The thirteen-year sentence imposed upon Weston is not inappropriate. We

       remand for clarification as to whether the trial court intended to include a

       recommendation regarding Weston’s therapeutic community participation and,

       if so, for correction of the sentencing order and abstract of judgment.


[13]   Affirmed and remanded for clarification.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1023 | October 1, 2019   Page 6 of 6
