MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 10 2020, 10:13 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Kristin A. Mulholland                                    Sierra A. Murray
Office of the Lake County Public                         Deputy Attorney General
Defender                                                 Indianapolis, Indiana
Appellate Division
Crown Point, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sherquell Dion Magee,                                    June 10, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2638
        v.                                               Appeal from the
                                                         Lake Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Samuel L. Cappas, Judge
                                                         Trial Court Cause No.
                                                         45G04-1805-MR-3



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020                  Page 1 of 10
[1]   After Sherquell Dion Magee (“Magee”), age seventeen, pleaded guilty to

      voluntary manslaughter,1 a Level 2 felony, and a sentence enhancement for use

      of a firearm,2 the trial court sentenced him to an aggregate term of forty years,

      twenty-five years for voluntary manslaughter and a fifteen-year enhancement

      for Magee’s use of a firearm in the commission of his crime. On appeal, Magee

      raises one issue, which we restate as whether his forty-year aggregate sentence

      is inappropriate.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On May 5, 2018, Magee went to Nunez Park in East Chicago, Indiana, with a

      group of friends, including N.H. Appellant’s App. Vol. Two at 78. An eleven-

      year-old boy, D.A., was also at the park with several of his friends. Id. at 78.

      Shortly after Magee’s group arrived, a third group came to the park, which

      included A.G. Id. Approximately twenty-two people were within the

      immediate vicinity. State’s Ex. 1; Tr. Vol. 2 at 53. N.H. and A.G. argued and

      began to fight. Appellant’s App. Vol. Two at 78. Magee intervened to help N.H.,

      and Magee and A.G. exchanged punches. Id. Magee then reached into his

      pocket, pulled out a handgun, and pointed the gun at A.G. Id. Magee fired one




      1
          See Ind. Code § 35-42-1-3(a)(1).
      2
          See Ind. Code § 35-50-2-11(d).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 2 of 10
      shot with the intent to kill A.G. Id. The bullet missed A.G. and struck D.A. in

      the head, killing him. Id.


[4]   On May 11, 2018, the State charged Magee with murder, attempted murder,

      and attempted battery by means of a deadly weapon. Id. at 17-18. The State

      amended the charging information several times, ultimately charging Magee

      with murder, attempted murder, battery by means of a deadly weapon,

      voluntary manslaughter, and sought a sentencing enhancement for Magee’s use

      of a firearm in the commission of his crime. Id. at 72-73.


[5]   The parties entered into a plea agreement on August 30, 2019, in which Magee

      agreed to plead guilty to voluntary manslaughter and the use of a firearm

      enhancement. Id. 74-79. The State agreed to dismiss the remaining counts. Id.

      Sentencing was left to the trial court’s discretion, although the parties agreed to

      a minimum of twenty years on the voluntary manslaughter conviction. Id. On

      August 30, 2019, Magee pleaded guilty, and the trial court accepted the plea.

      Tr. Vol. 2 at 11.


[6]   The sentencing hearing was held on October 11, 2019. Appellant’s App. Vol. Two

      at 110-12; Tr. Vol. 2 at 17-55. The trial court sentenced Magee to twenty-five

      years on the voluntary manslaughter charge and enhanced the sentence by

      fifteen years for the firearm enhancement, yielding an aggregate sentence of

      forty years. Appellant’s App. Vol. Two at 110-12. The trial court also ordered

      that the last two years of the sentence be served in Lake County Community




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 3 of 10
      Corrections. Id. at 111. Magee now appeals. We will provide additional facts

      as necessary.


                                     Discussion and Decision
[7]   Magee argues his forty-year aggregate sentence is inappropriate, primarily

      focusing on the character prong of appellate sentencing review under Indiana

      Appellate Rule 7(B). Specifically, Magee contends the sentence is inappropriate

      because of his youth, his lack of a criminal record, his expressions of remorse,

      and his agreement to plead guilty. As to the nature-of-offense prong, Magee

      claims his sentence is inappropriate because D.A., the victim, was struck and

      killed by a stray bullet.


[8]   Under Indiana Appellate Rule 7(B), we may revise a sentence if we find the

      sentence is inappropriate considering the nature of the offense and the character

      of the offender. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (2007). The “nature of offense” compares the defendant’s

      actions with the required showing to sustain a conviction under the charged

      offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the

      “character of the offender” permits for a broader consideration of the

      defendant’s character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App.

      2013), trans. denied. Whether a sentence is inappropriate turns on our sense of

      the defendant’s culpability, the severity of the crime, the damage done to others,

      and other factors that come to light in a given case. Cardwell, 895 N.E.2d at

      1224.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 4 of 10
[9]    We consider not only the aggravators and mitigators found by the trial court but

       also any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852,

       856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our goal is

       to determine whether the appellant’s sentence is inappropriate, not whether

       some other sentence would be more appropriate. Conley v. State, 972 N.E.2d

       864, 876 (Ind. 2012). “Such deference 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). When we

       review a sentence, we seek to leaven the outliers, not to achieve a perceived

       correct result. Cardwell, 895 N.E.2d at 1225.


                                      I. Character of Offender
[10]   Magee correctly observes that it is necessary for appellate courts to “consider an

       offender’s youth and its attendant characteristics,” Brown v. State, 10 N.E.3d 1,

       7 (Ind. 2014), and that juveniles are presumed to be less culpable than adults.

       Graham v. Florida, 560 U.S. 48, 68 (2010). Youth are less culpable because they

       are less mature and responsible, are more impulsive and reckless, and are more

       vulnerable to peer pressure. Id. They are less culpable also because a youth’s

       character is not well formed, meaning his or her actions are less likely to

       indicate irretrievable depravity. Miller v. Alabama, 567 U.S. 460, 471 (2012).

       These traits diminish justification for the most severe sentences, even when

       young offenders commit terrible crimes. Id. at 472. Draconian sentences

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 5 of 10
       forswear the rehabilitative ideal and deny hope because character improvement

       becomes immaterial. Brown, 10 N.E.3d at 8. Applying these principles, Magee

       analogizes his case to Brown, in which the Indiana Supreme Court reduced a

       sixteen-year-old’s aggregate sentence of 150 years to an aggregate sentence of

       eighty years. Id.


[11]   We reject Magee’s argument that his youth makes his sentence inappropriate.

       Magee’s age is the starting point, not ending point, in our analysis. “There are

       cunning children and there are naïve adults.” Sensback v. State, 720 N.E.2d

       1160, 1164 (Ind. 1999). “[F]ocusing on chronological age, while often a

       shorthand for measuring culpability, is frequently not the end of the inquiry for

       people in their teens and early twenties.” Monegan v. State, 756 N.E.2d 499, 504

       (Ind. 2001). “There are both relatively old offenders who seem clueless and

       relatively young ones who appear hardened and purposeful.” Ellis v. State, 736

       N.E.2d 731, 736 (Ind. 2000). Here, much of Magee’s behavior before the

       incident established that Magee was often able to resist immature, impulsive

       behavior, and was able to make prudent choices. For instance, even though

       Magee was frequently bullied, he tried to avoid fights. Tr. Vol. 2 at 25-26, 30-

       32. He described himself as someone who “typically walked away from fights”

       and “did not take risks often.” Appellant’s Conf. App. Vol. Two at 87. He had no

       desire to join a gang and did not join a gang. Tr. Vol. 2 at 28, 32. Magee

       worked construction jobs since he was fifteen, often working two or three days

       per week, making $70.00 per day. Appellant’s Conf. App. Vol. Two at 86. While

       this evidence does not show that Magee was “cunning” and “hardened” – see

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 6 of 10
       Sensback, 720 N.E.2d at 1164; Ellis, 736 N.E.2d at 736 – it does show Magee

       was capable of resisting impulsive and risky behavior. Therefore, we do not

       believe that his youth significantly reduces his culpability for his offense.


[12]   We also find that the sentence reduction in Brown does not support a sentence

       reduction here. Admittedly, our Supreme Court reduced Brown’s sentence

       partly because Brown was sixteen when he committed his offenses. Brown, 10

       N.E.3d at 6-8. However, Brown’s sentence was reduced for other reasons,

       including that Brown: 1) was an accomplice, not the principal; 2) gave police a

       detailed description of the crime; and 3) began using drugs at a very young age.

       10 N.E.3d at 4-6. Such mitigating circumstances do not exist here. Most

       importantly, the Supreme Court reduced Brown’s 150-year sentence because

       such a sentence would forswear the rehabilitative ideal and deny hope. Id. at 8.

       Here, Magee did not receive the maximum potential aggregate sentence of fifty

       years, which would have consisted of the thirty-year maximum for Level 2

       felony voluntary manslaughter3 and the twenty-year maximum for the firearm

       enhancement.4 Further, Magee’s forty-year aggregate sentence, though

       substantial, does not remove hope and forswear the rehabilitative ideal because

       assuming Magee earns all credit time, he will be released from incarceration in

       his mid-40s, with the final two years of his sentence to be served in community




       3
           See Ind. Code § 35-50-2-4.5.
       4
           See Ind. Code § 35-50-2-11(d), (g).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 7 of 10
       corrections. Accordingly, Magee’s forty-year aggregate sentence is not

       inappropriate considering his age.


[13]   Magee argues his sentence is inappropriate considering his character for three

       additional reasons. First, he contends that his lack of a criminal record reflects

       well on his character. Magee correctly observes that he has no prior juvenile

       adjudications, adult convictions, or even arrests. Citing Bluck v. State, Magee

       argues that his lack of a criminal record deserves “substantial mitigating

       weight.” 716 N.E.2d 507, 514 (Ind. Ct. App. 1999). Second, Magee claims his

       expressions of remorse also reflect well on his character. See Appellant’s Conf.

       App. Vol. Two at 84; Tr. Vol. 2 at 51. Third, he claims his guilty plea shows he

       accepted responsibility for his offense. See Francis v. State, 817 N.E.2d 235, 237-

       38 (Ind. 2004) (“A guilty plea demonstrates a defendant’s acceptance of

       responsibility for the crime and extends a benefit to the State and to the victim

       or the victim’s family by avoiding a full-blown trial.”).


[14]   We are not persuaded that these factors are sufficient to find Magee’s sentence

       inappropriate. Magee’s lack of criminal record is commendable, but as the

       State observes, Magee had previously engaged in criminal conduct, even

       though Magee was not arrested or charged for that conduct. Specifically,

       Magee would often shoot his gun in the air to disperse crowds, even though he

       was not old enough to obtain a license to carry a gun. Tr. Vol. 2 at 31-32; see

       Ind. Code § 35-47-2-3(g)(3). And by possessing the gun, Magee committed

       dangerous possession of a firearm, a Class A misdemeanor under Indiana Code

       section 35-47-10-5(a). The fact that Magee had been twice suspended from

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 8 of 10
       school also reflects poorly on his character. Appellant’s Conf. App. Vol. Two at

       86.


[15]   Magee’s guilty plea also does not make his sentence inappropriate. A

       guilty plea may not be significantly mitigating when a defendant receives a

       substantial benefit for the plea. Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct.

       App. 2017). Here, Magee received a substantial benefit for his plea because if

       he had proceeded to trial on just the murder charge and was convicted of that

       offense, he could have been sentenced to a maximum of sixty-five years5 and

       been subjected to a maximum firearm enhancement of twenty years.6 Because

       Magee’s open guilty plea resulted in an aggregate sentence of forty years, he

       received a substantial benefit for the plea, so his plea is not a mitigating factor.

       Finally, to the degree that Magee’s remorse reflects well on his character, that is

       overshadowed by the foregoing factors, which reflect poorly on his character.

       See Kunberger v. State, 46 N.E.3d 966, 974 (Ind. Ct. App. 2015) (defendant’s

       remorse, acceptance of responsibility, and alleged mental health issues are

       clearly overshadowed by his flagrant violations of the no-contact order).


[16]   Accordingly, while we find that Magee’s character has some redeeming

       qualities, Magee has failed to show that his sentence is inappropriate with

       compelling evidence of “virtuous traits or persistent examples of good




       5
           See Ind. Code § 35-50-2-3.
       6
           See Ind. Code § 35-50-2-11(g).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 9 of 10
       character” to find his sentence inappropriate considering his character. See

       Stephenson, 29 N.E.3d at 112.


                                         II. Nature of Offense
[17]   Magee argues that his sentence is inappropriate considering the nature of his

       offense because the shooting was neither “brutal” nor “heinous” since D.A.

       was struck by “a bullet that went astray.” Appellant’s Br. at 12. We reject

       Magee’s effort to minimize the nature of his offense. Magee armed himself

       with a handgun that he was not old enough to own, needlessly intervened into a

       fistfight, and escalated the situation by drawing a handgun. Appellant’s App. Vol.

       Two at 78. When he aimed and fired the gun, there were twenty-two other

       people present, mostly juveniles, in the immediate area. State’s Ex. 1; Tr. Vol. 2

       at 53. Magee shot eleven-year-old D.A. in the head, resulting in his death.

       Appellant’s App. Vol. Two at 78. Accordingly, Magee has not provided

       compelling evidence that portrays his offense in a less negative light, that is, as

       an offense accompanied by restraint, regard, and lack of brutality. See

       Stephenson, 29 N.E.3d at 122. Accordingly, Magee has failed to show that his

       aggregate sentence of forty years is inappropriate considering the nature of his

       offense, and, likewise, considering his character.


[18]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020   Page 10 of 10
