MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            Apr 17 2015, 9:34 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                    Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Dontee Robinson,                                          April 17, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1407-CR-447
        v.                                                Appeal from the Marion Superior
                                                          Court
                                                          The Honorable Lisa Borges, Judge
State of Indiana,                                         Cause No. 49G04-1211-MR-080844
Appellee-Plaintiff




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015          Page 1 of 14
                                             Case Summary
[1]   Dontee Robinson (“Robinson”) was convicted by a jury of Murder, a felony;1

      Attempted Murder, a Class A felony;2 Robbery, as a Class B felony;3 and

      Criminal Confinement, as a Class B felony.4 Robinson was sentenced to an

      aggregate term of imprisonment of 140 years. In this appeal, he raises for our

      review only whether his sentence is inappropriate under Appellate Rule 7(B).


[2]   We affirm.



                                Facts and Procedural History
[3]   Robinson and several of his acquaintances, Dominique Hamler (“Hamler”),

      James McDuffy (“McDuffy”), Nathaniel Armstrong (“Armstrong”), Carlton

      Hart (“Hart”), and Darin Jackson (“Jackson”), were involved in the rap music

      scene in Indianapolis. In November 2012, a rap musician nicknamed “Bango,”

      who was a close friend of Hamler, was murdered.


[4]   McDuffy had heard that a local DJ named Thomas Keys (“Keys”) was

      involved with Bango’s death. A phone call was made to Keys on the pretense




      1
       Ind. Code § 35-42-1-1. Indiana’s criminal statutes were revised in 2013 and 2014; we refer to statutory
      provisions governing the substantive offenses and sentencing for offenses in effect at the time of Robinson’s
      offenses.
      2
          I.C. §§ 35-41-5-1 & 35-42-1-1.
      3
          I.C. § 35-42-5-1.
      4
          I.C. § 35-42-3-3.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015               Page 2 of 14
      that Keys would help mix tracks for a tribute to Bango at the One Stop Media

      studio, a recording studio Hart owned that was located near 46th Street and

      Keystone Avenue in Indianapolis.


[5]   Keys’s cousin, Marvin Finney, II (“Finney”), had been learning to do DJ work

      as well, and on November 15, 2012, Keys asked Finney to come with him to

      work on mixing the tracks. Finney drove in his mother’s rented minivan to

      Keys’s apartment around 4:00 that afternoon, and the two men drove to the

      One Stop Media studio.


[6]   Upon arriving at the studio, Keys called to let the studio know he was there.

      Keys and Finney entered the studio; the back door of the studio had been

      locked in place with brackets and a wooden plank. Robinson was present at the

      scene, and Finney recognized him as a local rapper named “D-Rob.” Finney

      also recognized McDuffy, who was also present when he and Keys entered the

      studio.


[7]   Once in the studio, Robinson and McDuffy began to interrogate the two men

      about who had killed Bango; the questioning focused on Keys, but questions

      were asked of Finney, as well. Finney attempted to stay out of the discussion

      and was using his cellular phone to send text messages. McDuffy demanded to

      know who Finney was messaging with, and Finney showed McDuffy the

      phone.


[8]   While talking to Finney, McDuffy pulled out a semiautomatic pistol with a

      laser sight; McDuffy laid the gun on his lap as he asked questions of Keys and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 3 of 14
       Finney. At some point during the questioning, Robinson pulled out an assault

       rifle that he held during portions of the interrogation. Throughout the

       questioning, Keys and Finney denied any knowledge of who had been involved

       in Bango’s death.


[9]    Finney began to ask Keys what was going on; to make sure neither Keys nor

       Finney had a gun, Robinson patted down Keys, and McDuffy patted down

       Finney. Robinson and McDuffy took Keys’s and Finney’s belongings,

       including wallets, a food assistance card, cash, keys to Finney’s mother’s van,

       and Finney’s laptop computer. McDuffy then began the questioning anew,

       telling the men to “tell us or you’re not going home.” (Tr. at 145.) Finney tried

       to move toward the back door in order to escape, but a third individual who

       had been pacing near the back door came in and held a revolver to Finney to

       keep him in place. McDuffy then ordered Keys and Finney to remove their

       clothes and ordered that Keys and Finney be restrained.


[10]   As McDuffy continued to ask questions, Hamler entered the studio; Finney

       recognized Hamler as a local rapper called “Scooter.” Hamler was angry, and

       upon entering the studio he retrieved an assault rifle he had been hiding in a

       pants leg. Hamler, loud and upset, demanded to know who had killed Bango

       and who Finney was; Finney explained that he was just there to work on music.


[11]   Keys and Finney were ordered to get on the ground; Finney resisted, and

       McDuffy and Hamler punched him down. Keys and Finney were then

       restrained with zip ties. The men explained that they were doing this for


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 4 of 14
       Bango, because someone “had to pay” for his death. (Tr. at 153.) The men

       also said that while Finney had nothing to do with Bango, he should not have

       come.


[12]   At around this time, a fifth person, later identified as Armstrong, entered the

       studio. Armstrong was loud, aggressive, and spoke openly about killing Keys

       and Finney. Armstrong was armed with a boxcutter-like knife, and asked

       which of the two bound men was Keys. Armstrong was directed to Keys, and

       slashed Keys’s leg with the knife, causing Keys to scream in pain. Armstrong

       and Hamler both said that they did not care whether Keys and Finney had any

       involvement with Bango’s murder: they were doing this “for Bango” and

       someone “had to pay.” (Tr. at 158.)


[13]   Armstrong then told Finney and Keys to “shut up,” and McDuffy ordered

       Keys’s and Finney’s mouths taped with duct tape. (Tr. at 158.) One of the five

       men in the studio began talking about getting gloves to “finish … off” Keys and

       Finney. (Tr. at 159.) A sixth man with a bald head, whose identity was

       unknown to Finney but who was later identified as Hart, entered the studio

       through the back door. Upon being shown Keys and Finney, Hart confirmed

       Keys’s identity.


[14]   Throughout this, Finney’s cellular phone, which had been taken along with his

       other property, continued to receive text messages from friends and relatives.

       At some point, Hamler told Finney that his girlfriend would be mad at him

       because she had continued to call, and Finney had not answered. Soon after


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 5 of 14
       this, Finney’s mother sent a text message demanding that Finney return the van

       and threatening to call the police. Hamler asked if that would really happen,

       and both Finney and Keys indicated that Finney’s mother would actually call

       the police.


[15]   This information prompted Robinson, Hamler, Armstrong, and Hart to leave

       the room to put on gloves. The lights in the studio were turned off, but the

       room remained illuminated by a computer. McDuffy and another man

       remained in the room; McDuffy tapped a gun on Finney’ head, telling him to

       say anything he knew about Bango’s death. McDuffy also told Keys and

       Finney that they would be killed as soon as the businesses in the area had

       closed. Keys continually apologized to Finney for getting him involved in the

       matter.


[16]   At some point, all six men came back in the studio room. They continued to

       talk among themselves, breaking into smaller groups at times, and began to play

       some of Bango’s music. The men talked about how Bango was about to sign a

       contract with a record label, and how they were doing this for Bango. During

       this conversation, Hart speculated about ways in which they might kill Keys

       and Finney, including burning them alive and shooting them.


[17]   Armstrong told someone to get more zip ties. A zip tie was placed on Keys’s

       neck, and another one was placed on Finney’s neck; the ties were sufficiently

       tight that Finney thought he might suffocate. Armstrong told someone to put




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 6 of 14
       tape on Keys’s eyes so that Keys would not see what was about to be done to

       him. All six men then left the studio room.


[18]   One of the men, who had dreadlocks in his hair and was wearing dark clothes,

       but whom Finney was unable to clearly identify, returned to the door of the

       studio, pointed a gun at Keys and Finney, and began shooting at them. Finney

       ducked his head, tried to protect himself by putting his hands in the air, and was

       shot in the wrists on both arms. Keys was shot multiple times, screamed and

       shook for a brief period of time, and fell silent.


[19]   Finney “played dead” until he thought it might be safe to leave. (Tr. at 169.)

       He jumped up and managed to break his legs free of the ties on them. Finney

       located a screwdriver in the studio and managed to break his hands free of the

       zip ties, but even after finding scissors he was unable to remove the zip tie that

       had been tightened around his neck. Finney tried to rouse Keys, but was

       unable to do so.


[20]   Because the six men had left the studio through its back door, the block that

       had been used to secure that door was no longer in place; Finney put the block

       back in the door in order to prevent the men from returning. Finney

       remembered that there was a CVS drug store nearby, and ran there, still

       shoeless. After flagging people down at the CVS, Finney was able to get the zip

       tie removed from his neck. One of the customers at CVS called 911; police

       arrived and commenced an investigation, during which Finney identified

       Robinson, Armstrong, and Hamler as having been at the studio.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 7 of 14
[21]   As a result of the ensuing investigation, on November 29, 2012, Robinson was

       charged with two counts of Murder; Kidnapping, as a Class A felony; 5

       Attempted Murder; Robbery, as a Class A felony; Criminal Confinement;

       Conspiracy to Commit Kidnapping, as a Class A felony;6 and Conspiracy to

       Commit Criminal Confinement, as a Class B felony.7 The State also alleged

       that Robinson engaged in Murder, Kidnapping, and Criminal Confinement in

       connection with criminal gang-related activity, and sought a related sentencing

       enhancement.8


[22]   A jury trial was conducted from October 21 to 24, 2013; the jury could not

       reach a unanimous verdict, and a mistrial was declared.


[23]   Robinson and Hamler were subsequently retried jointly from May 12 to May

       14, 2014, again before a jury. Just prior to commencement of the trial, the State

       dismissed the charges of Kidnapping and Attempt to Commit Kidnapping.

       During the trial, the State also dismissed the allegation related to the criminal

       gang activity enhancement. At the conclusion of the trial, Robinson was found

       guilty of all the remaining charges.




       5
           I.C. § 35-42-3-2.
       6
           I.C. §§ 35-41-5-2 & 35-42-3-2.
       7
           I.C. §§ 35-42-5-2 & 35-42-3-3.
       8
           I.C. § 35-50-2-15.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 8 of 14
[24]   On June 4, 2014, a sentencing hearing was conducted. During the sentencing

       hearing, the trial court “merged” several of the offenses into other charges and

       entered judgments of conviction against Robinson for Murder, Attempted

       Murder, Robbery, and Criminal Confinement. The trial court also reduced the

       classification of the Robbery charge from a Class A felony to a Class B felony.

       At the conclusion of the sentencing hearing, the trial court sentenced Robinson

       to consecutive terms of sixty-five years imprisonment for Murder, fifty years

       imprisonment for Attempted Murder, ten years imprisonment for Robbery, and

       fifteen years imprisonment for Criminal Confinement.


[25]   This appeal ensued.



                                  Discussion and Decision
[26]   Robinson raises for our review only whether his sentence is inappropriate. The

       State contends that Robinson has waived his appeal of this matter.


[27]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which provides: “The 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.” Under this rule, and as

       interpreted by case law, appellate courts may revise sentences after due

       consideration of the trial court’s decision, if the sentence is found to be


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 9 of 14
       inappropriate in light of the nature of the offense and the character of the

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[28]   We turn first to the State’s contention that Robinson waived his appeal as to the

       inappropriateness vel non of his sentence. The State argues in essence that

       Robinson did not make any argument concerning the nature of his offense,

       where our standard under Rule 7(B) looks at both the nature of the offense and

       the offender’s character, and thus Robinson has waived the entirety of his

       sentencing challenge.


[29]   We disagree. Robinson’s brief concedes that the nature of his offense is not a

       matter of argument and is among the most egregious of offenses. That is by no

       means a waiver of the entirety of the appeal, however, as Robinson’s argument

       is that his character renders his sentence inappropriate. And even were that not

       the case, Indiana’s courts have a long-stated policy to prefer to resolve cases on

       their merits when possible. Welch v. State, 828 N.E.2d 433, 436 (Ind. Ct. App.

       2005). We accordingly decline the State’s invitation to consider Robinson’s

       appeal as waived, and turn to the merits of Robinson’s appeal.


[30]   Robinson was convicted of Murder, a felony; Attempted Murder, as a Class A

       felony; Robbery, as a Class B felony; and Criminal Confinement, as a Class B

       felony. Murder carried a sentencing range of forty-five to sixty-five years, with

       an advisory term of fifty-five years, I.C. § 35-50-2-3; Robinson was sentenced to


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 10 of 14
       the statutory maximum term. For his Attempted Murder conviction, Robinson

       faced a possible sentencing range of twenty to fifty years, with an advisory term

       of thirty years, I.C. 35-50-2-4(a); he received the statutory maximum sentencing

       term of fifty years. For Robbery and Criminal Confinement, each as Class B

       felonies, Robinson faced a term of imprisonment for each of between six and

       twenty years, with an advisory term of ten years. I.C. § 35-50-2-5(a). He

       received an advisory sentence of ten years for his Robbery conviction, and a

       sentence of fifteen years imprisonment for his Criminal Confinement

       conviction. The trial court ran all these sentences consecutively to one another,

       yielding an aggregate term of imprisonment of 140 years.


[31]   As we noted above, Robinson concedes that the nature of his offense was of the

       most egregious nature. He participated in a premeditated and planned scheme

       to trap, interrogate, injure, rob, and ultimately kill Keys. He, along with his co-

       defendants, did not release Finney when they learned he had nothing to do with

       any of the events related to Bango’s murder. Instead, Robinson remained

       present and armed during the events of November 15, 2012, and continued over

       the course of nearly three hours to participate in the offenses committed upon

       both Keys and Finney, including their detention, robbery, beating, and

       shooting. Robinson had ample opportunity during all this to leave; he did not.


[32]   Keys and Finney were both injured and terrorized during these events, and their

       families continue to suffer as a result of Robinson’s offenses. Keys’s children

       were left without a father, and Keys’s parents continued to be traumatized. So,

       too was Finney; Finney’s mother testified during the sentencing hearing that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 11 of 14
       Finney continued to experience nightmares, no longer mentioned Keys during

       conversation, and simply was no longer “normal.” (Tr. at 628.)


[33]   As to his character, Robinson concedes that he has a criminal history and lacks

       education. However, Robinson argues that his young age, employment history,

       and financial support for his young child and his grandmother make his

       sentence inappropriate. Further, in connection with the nature of the offense,

       Robinson argues that he was not as culpable as Hamler, and thus for him to

       have received the same sentence as Hamler was inappropriate.


[34]   Turning to Robinson’s criminal history, we observe that he has a long history of

       encounters with law enforcement, beginning in 2007 when he was still a

       juvenile. While a juvenile, Robinson was adjudicated a delinquent for acts that

       would have constituted the D-felony-level offense of Residential Entry if

       committed by an adult, and he violated probation associated with that

       delinquency finding. Robinson’s encounters with law enforcement continued

       as an adult. In 2011, he was convicted of Possession of Marijuana, as a Class A

       misdemeanor. During 2012 in cases unrelated to the instant matter, Robinson

       was charged with Possession of Cocaine, Carrying a Handgun without a

       License on two separate occasions, Possession of Paraphernalia, Auto Theft,

       and Criminal Gang Activity. All of those charges remained pending at the time

       of trial and sentencing in this matter.


[35]   As to Robinson’s young age, we note that he was less than one month shy of

       twenty years old at the time of the instant offenses, and was twenty-one years


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 12 of 14
       old when he was sentenced. He was employed and provided financial

       assistance to his child and grandmother.


[36]   Finally, we turn to Robinson’s contention that because he was less culpable and

       of better character than his co-defendant, Hamler, it was inappropriate that he

       receive the same sentence. While we recognize that Robinson was not actively

       involved in the beating of Keys and Finney, it was Robinson who opened the

       door for Keys and Finney to enter the recording studio. Robinson was one of

       only three individuals who was present at the recording studio the entire time;

       Hamler arrived later. Robinson was one of the four men who left the studio

       room to don gloves in order to “finish … off” Keys and Finney. (Tr. at 159.)


[37]   Robinson concedes he was holding a rifle, but notes that Keys and Finney were

       shot by a pistol, perhaps implying that the evidence supports an inference that

       Robinson did not shoot either man. Finney’s trial testimony, however,

       indicates that an individual with dreadlocks and dark clothing fired the shots

       that injured him and killed Keys. Finney testified that several individuals had

       dreadlocks and dark-colored clothing, including Robinson, and further testified

       that he could not identify specifically who fired the gun. We thus do not think

       that Robinson was less complicit than Hamler in a case where both men

       participated in a plot to lure Keys for the purposes of beating, robbing, and

       ultimately murdering him.


[38]   Taken together, the nature of Robinson’s offenses and his character do not

       persuade us that his sentence is inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 13 of 14
[39]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-447 | April 17, 2015   Page 14 of 14
