MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Feb 21 2017, 8:05 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chris M. Teagle                                          Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles R. Whittington,                                  February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         05A02-1512-CR-2359
        v.                                               Appeal from the Blackford Circuit
                                                         Court
State of Indiana,                                        The Honorable Dean A. Young,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         05C01-1502-MR-41



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017    Page 1 of 18
[1]   Following a jury trial, Charles R. Whittington was convicted of two counts of

      murder and sentenced to an aggregate term of 170 years in the Department of

      Correction. Whittington raises the following issues on appeal:


              1. Did the trial court abuse its discretion in admitting
                 Whittington’s statements to police?


              2. Was the jury’s verdict of guilty—rather than guilty but
                 mentally ill (GBMI)—contrary to law?


              3. Is Whittington’s 170-year sentence inappropriate?


[2]   We affirm.


                                       Facts & Procedural History


[3]   In January of 2015, Whittington was a regular visitor at Shane Williamson’s

      Hartford City apartment. Whittington had recently split up with his girlfriend,

      Heather Lennartz, and Lennartz had blocked him on Facebook and her cell

      phone. Lennartz had also been childhood friends with Shane, and they had

      reconnected on Facebook around the end of 2014 or the beginning of 2015.

      When Whittington visited Shane’s home, he would often use Shane’s Facebook

      profile and cell phone to contact Lennartz while pretending to be Shane. At

      some point, Lennartz sent provocative photographs of herself to Shane.

      Whittington was angry about the photos and repeatedly demanded that Shane

      give them to him, even though Shane had already done so and then deleted the

      photos.


      Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 2 of 18
[4]   In early February 2015, Whittington was served with a restraining order barring

      him from contacting Lennartz and her children. When Whittington spoke with

      Lennartz’s mother on February 2, 2015, he told her that Shane had photos of

      Lennartz and that he was going to get the cell phone and delete the photos even

      if he had to “beat the fuck out of him[.]” Transcript at 321.


[5]   On the morning of February 5, 2015, Whittington drove to Shane’s apartment.

      Shortly after 9 a.m., he entered the bedroom of Katelin Williamson, Shane’s

      fourteen-year-old daughter, and shot her in the face at close range, killing her.

      Whittington then shot Shane twice in the head after a struggle in Shane’s truck,

      which took place in the parking lot of the apartment complex and in front of

      eyewitnesses. Shane also died as a result of his injuries.


[6]   On February 9, 2015, the State charged Whittington with two counts of

      murder. The State also filed two sentencing enhancements based on

      Whittington’s use of a firearm in the murders. A five-day jury trial commenced

      on November 3, 2015, at which Whittington asserted an insanity defense. On

      November 9, 2015, the jury returned guilty verdicts on the murder charges and

      found that Whittington had used a firearm in the commission of the offenses as

      required to support the sentencing enhancements. On December 1, 2015, the

      trial court sentenced Whittington to sixty-five years for each of the murder

      convictions, enhanced each count by twenty years based on the use of a

      firearm, and ordered the sentences to run consecutively, resulting in an

      aggregate term of 170 years imprisonment. Whittington now appeals.

      Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 3 of 18
                                          Discussion & Decision


                                         Admission of Statements


[7]   Whittington first argues that the trial court erred in admitting his statements to

      police because those statements were obtained in violation of his Miranda rights.


              The trial court has broad discretion in ruling on the admissibility
              of evidence, and we will reverse the trial court’s ruling only when
              the trial court abuses that discretion. Fuqua v. State, 984 N.E.2d
              709, 713-14 (Ind. Ct. App. 2013), trans. denied. The trial court
              abuses its discretion only if its decision regarding the admission
              of evidence is clearly against the logic and effect of the facts and
              circumstances before it, or if the court has misinterpreted the law.
              Id. Regardless of whether the challenge is made through a
              pretrial motion to suppress or by an objection at trial, our review
              of rulings on the admissibility of evidence is essentially the same:
              we do not reweigh the evidence, and we consider conflicting
              evidence in a light most favorable to the trial court’s ruling, but
              we may also consider any undisputed evidence that is favorable
              to the defendant. Id. Additionally, we may consider
              foundational evidence introduced at trial in conjunction with any
              evidence from a suppression hearing that is not in direct conflict
              with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.
              Ct. App. 2005).


      Hicks v. State, 5 N.E.3d 424, 427 (Ind. 2014), trans. denied.

[8]   On appeal, Whittington claims that police employed the sort of “question-first”

      interrogation technique condemned by the United States Supreme Court in

      Missouri v. Seibert, 542 U.S. 600 (2004). Officers using this technique withhold

      Miranda warnings until after a suspect has confessed, and thereafter, give


      Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 4 of 18
      Miranda warnings and secure a waiver before obtaining a second, similar

      confession. Id. at 611-14. As the Seibert court explained:


              Upon hearing warnings only in the aftermath of interrogation
              and just after making a confession, a suspect would hardly think
              he had a genuine right to remain silent, let alone persist in so
              believing once the police began to lead him over the same ground
              again. A more likely reaction on a suspect’s part would be
              perplexity about the reason for discussing rights at that point,
              bewilderment being an unpromising frame of mind for
              knowledgeable decision. What is worse, telling a suspect that
              “anything you say can and will be used against you,” without
              expressly excepting the statement just given, could lead to an
              entirely reasonable inference that what he has just said will be
              used, with subsequent silence being of no avail. Thus, when
              Miranda warnings are inserted in the midst of coordinated and
              continuing interrogation, they are likely to mislead and
              “depriv[e] a defendant of knowledge essential to his ability to
              understand the nature of his rights and the consequences of
              abandoning them.” By the same token, it would ordinarily be
              unrealistic to treat two spates of integrated and proximately
              conducted questioning as independent interrogations subject to
              independent evaluation simply because Miranda warnings
              formally punctuate them in the middle.


      Id. at 613-14 (alteration in original, footnote omitted). Thus, the Court held

      that the defendant’s statements made both before and after Miranda warnings

      were inadmissible. Id. at 617.


[9]   Indiana courts have consistently applied Seibert to hold a defendant’s post-

      Miranda statements inadmissible in situations where a defendant has been

      interrogated prior to receiving Miranda warnings and confessed or made


      Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 5 of 18
       incriminating statements, and then repeated those statements after receiving

       Miranda warnings. See, e.g., Kelly v. State, 997 N.E.2d 1045, 1053-54 (Ind.

       2013); Morris v. State, 871 N.E.2d 1011, 1018-19 (Ind. Ct. App. 2007), trans.

       denied. But our review of the record in this case reveals that Whittington was

       not subjected to pre-Miranda interrogation.


[10]   Whittington was arrested on the day of the murders and transported to the Jay

       County Jail. Whittington was handcuffed and placed in an interview room,

       and Officer Todd Wickey of the Portland Police Department sat with him while

       waiting for Hartford City police to arrive. It is undisputed that Whittington had

       not been Mirandized at that time. Contrary to Whittington’s arguments,

       however, the evidence favorable to the trial court’s ruling establishes Officer

       Wickey did not interrogate him. Indeed, Officer Wickey testified that he did

       not ask Whittington any questions and merely listened while Whittington

       talked about his motorcycle and his recipe for ribs, which Whittington said he

       had been making that day. See White v. State, 772 N.E.2d 408, 412 (Ind. 2002)

       (explaining that “[u]nder Miranda, ‘interrogation’ includes express questioning

       and words or actions on the part of the police that the police know are

       reasonably likely to elicit an incriminating response from the suspect” and that

       “[v]olunteered statements do not amount to interrogation”). Although

       Whittington claims that Officer Wickey questioned him concerning his

       activities that day, it is not our province to judge the credibility of witnesses in

       this manner on appeal. Because Whittington was not interviewed until after

       Officer Matthew Felver of the Hartford City Police Department arrived and


       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 6 of 18
       advised him of his Miranda rights, Whittington’s reliance on Seibert and its

       progeny is misplaced.


                                              Rejection of GBMI Verdict


[11]   Next, Whittington challenges the jury’s failure to return a GBMI verdict. 1 Ind.

       Code § 35-36-2-3 provides that, in all cases where a defense of insanity is raised,

       the jury shall determine whether the defendant is guilty, not guilty, not

       responsible by reason of insanity, or “guilty but mentally ill at the time of the

       crime.” For purposes of a GBMI verdict, “mentally ill” means “having a

       psychiatric disorder which substantially disturbs a person’s thinking, feeling, or

       behavior and impairs the person’s ability to function.”2 I.C. § 35-36-1-1. When

       a defendant challenges a jury’s failure to return a GBMI verdict as contrary to

       law, we grant substantial deference to the verdict in light of the jury’s “right to

       determine the law and the facts” in all criminal cases. Satterfield v. State, 33

       N.E.3d 344, 348 (Ind. 2015) (quoting Ind. Const. art 1, § 19). Because a

       defendant raising such a challenge appeals from a negative judgment, he faces a

       heavy burden. Id. Indeed, the conviction will be set aside only if the evidence

       is without conflict and leads to only the conclusion that the defendant was

       GBMI. Id. In considering such issues, this court “will not reweigh evidence,

       reassess witness credibility, or disturb reasonable inferences made by the trier of




       1
           Whittington does not challenge the jury’s rejection of his insanity defense.
       2
        Although not relevant in this case, the term “mentally ill” also expressly includes “having an intellectual
       disability.” I.C. § 35-36-1-1.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017           Page 7 of 18
       fact.” Id. (quoting Myers v. State, 27 N.E.3d 1069, 1074 (Ind. 2015)). We will

       consider only the evidence favorable to the verdict and the reasonable and

       logical inferences flowing therefrom. Id.


[12]   Whittington argues that the jury’s decision to find him guilty rather than GBMI

       was “contrary to the evidence and erroneous[,]” but he fails to cite or apply the

       statutory definition of mentally ill. Appellant’s Brief at 18. Accordingly, his

       argument in this regard is waived. See Davis v. State, 835 N.E.2d 1102, 1113

       (Ind. Ct. App. 2005) (explaining that “[a] party waives an issue where the party

       fails to develop a cogent argument or provide adequate citation to authority and

       portions of the record”), trans. denied.


[13]   Waiver notwithstanding, we cannot say that the evidence presented concerning

       Whittington’s mental condition at the time of the crime was without conflict

       and led only to the conclusion that he was mentally ill as defined in I.C. § 35-

       36-1-1 at the time of the murders. Although there was evidence presented that

       Whittington had previously been diagnosed with a number of mental illnesses,

       including schizophrenia, bipolar disorder, depression, anxiety, and post-

       traumatic stress disorder, there was also significant evidence that Whittington

       had a history of malingering and being dishonest with service providers. For

       example, Whittington had previously told mental health care providers that he

       had hallucinated clowns and that an alter ago named “Elmer” could make him

       do things, but he later admitted that he was being untruthful. Yet when he was

       interviewed by investigators on the day of the murders, he again claimed to

       have an alter ego named Elmer, and he stated that “when Elmer comes out, he

       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 8 of 18
       doesn’t remember what Elmer does.” Transcript at 275. Whittington also lied

       to service providers about being in active combat in Vietnam. Dr. Craig

       Buckles testified that although Whittington had been diagnosed with

       schizophrenia early on, many of Whittington’s service providers had serious

       doubts about this diagnosis. Dr. Buckles testified further that he did not

       observe any signs of a thought disorder in Whittington.


[14]   Moreover, evidence of Whittington’s behavior around the time of the murders

       supports a conclusion that Whittington was not mentally ill at the time of the

       crimes within the meaning of I.C. § 35-36-1-1, in that his thinking, feeling, and

       behavior was not substantially disturbed and his ability to function was not

       impaired. Brian McDonald, who was Shane’s close friend and who had spent

       time with Whittington at Shane’s apartment, testified that approximately one

       week before the murders, Whittington had said that “all he had to do was quit

       taking his medication and he had . . . a free pass to kill.” Transcript at 149.

       Three days before the murders, Whittington told Lennartz’s mother that he was

       going to delete the photos of Lennartz from Shane’s phone even if he had to

       “beat the fuck out of him[.]” Id. at 321 The day before the murders,

       Whittington went to the VA office in Marion and requested his medical

       records. The VA records from that date showed that Whittington met with a

       therapist and discussed his relationship with Lennartz and the restraining order

       with a therapist and that Whittington was “lucid and oriented” and “did not

       express bizarre, paranoid or delusional thoughts.” Exhibit Volume IV at 30.

       Immediately after the murders, Whittington altered his appearance by shaving


       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 9 of 18
       his beard and he disposed of the baseball cap he was wearing while he

       committed the crimes. After he was arrested, Whittington denied ever having

       been to Shane’s apartment and lied to police about owning a 9mm handgun.


[15]   Although it is undisputed that Whittington had been diagnosed with some

       psychiatric disorders in the past, the evidence in this case amply supported a

       conclusion that any psychiatric disorder Whittington might have had at the

       time he murdered Katelin and Shane did not substantially disturb his thinking,

       feeling, or behavior and impair his ability to function. Indeed, the evidence

       presented easily supports a conclusion that Whittington acted out of anger and

       jealousy, and then sought to use his mental health history to escape

       responsibility for his actions. Because Whittington has fallen far short of

       establishing that the evidence presented concerning his mental state at the time

       of the murders was without conflict and led only to the conclusion that he was

       GBMI, we affirm the jury’s guilty verdict. See Satterfield, 33 N.E.3d at 350-51

       (affirming a jury’s rejection of a GBMI verdict where the evidence supported a

       conclusion that the defendant was acting deceitfully).


                                                   Sentencing


[16]   We first note that Whittington’s sentencing argument conflates two separate

       sentencing standards: whether the trial court abused its discretion in identifying

       mitigating and aggravating factors and whether Whittington’s sentence is

       inappropriate pursuant to Indiana Appellate Rule 7. “As our Supreme Court

       has made clear, inappropriate sentence and abuse of discretion claims are to be


       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 10 of 18
       analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

       Accordingly, “an inappropriate sentence analysis does not involve an argument

       that the trial court abused its discretion in sentencing the defendant.” Id.


[17]   With respect to Whittington’s argument concerning the trial court’s

       consideration of aggravating and mitigating factors, we note that sentencing

       decisions rest within the sound discretion of the trial court. Anglemyer v. State,

       868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So long as

       the sentence is within the statutory range, it is subject to review only for an

       abuse of discretion. Id. “An abuse of discretion occurs if the decision is ‘clearly

       against the logic and effect of the facts and circumstances before the court or the

       reasonable, probable, and actual deductions to be drawn therefrom.’” Id. at 490

       (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).


[18]   A trial court may abuse its sentencing discretion in a number of ways,

       including: (1) failing to enter a sentencing statement at all; (2) entering a

       sentencing statement that includes aggravating and mitigating factors that are

       unsupported by the record; (3) entering a sentencing statement that omits

       reasons that are clearly supported by the record; or (4) entering a sentencing

       statement that includes reasons that are improper as a matter of law. Id. at 490-

       91. If the trial court abuses its discretion in one of these or another way,

       remand for resentencing is the appropriate remedy “if we cannot say with

       confidence that the trial court would have imposed the same sentence had it

       properly considered reasons that enjoy support in the record.” Id. at 491.



       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 11 of 18
[19]   First, Whittington acknowledges that the trial court identified his history of

       mental illness as a mitigating factor, but he appears to argue that the trial court

       afforded it insufficient mitigating weight. We note, however, that trial courts

       are no longer obligated to weigh such factors against each other when imposing

       a sentence. Id. Thus, a trial court cannot be said to have abused its discretion

       in failing to properly weigh such factors. Id. Accordingly, Whittington’s

       argument in this regard is without merit.


[20]   Whittington also argues that the trial court relied on an improper aggravating

       factor, namely, that the imposition of a lesser sentence would depreciate the

       seriousness of the offense. According to Whittington, “[t]his aggravator is only

       appropriate if the trial court is considering imposing a sentence less than the

       advisory.” Appellant’s Brief at 22. This is an inaccurate statement of the law.

       Our Supreme Court has held that “it is not error to enhance a sentence based

       upon the aggravating circumstance that a sentence less than the enhanced term

       would depreciate the seriousness of the crime committed.” Mathews v. State,

       849 N.E.2d 578, 590 (Ind. 2006). Therefore, the trial court did not abuse its

       discretion in relying upon this aggravating factor in imposing the maximum

       sentence. Moreover, even if the trial court had abused its discretion in this

       regard, reversal would not be necessary, both because we can say with

       confidence that the trial court would have imposed the same sentence had it not

       relied on this aggravating factor and because we conclude below that the

       sentence imposed is not inappropriate. See 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


       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 12 of 18
       its discretion in the process it used to sentence the defendant, the error is harmless if

       the sentence imposed was not inappropriate”), trans. denied.


[21]   Turning now to Whittington’s challenge to the appropriateness of his sentence,

       we note that although a trial court may have acted within its lawful discretion

       in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution

       authorize independent appellate review and revision of a sentence imposed by

       the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing

       Anglemyer, 868 N.E.2d at 491). This appellate authority is implemented

       through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer, 868 N.E.2d at 491.

       Nevertheless, “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). The appellant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[22]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 13 of 18
       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Moreover, “[t]he principal role of

       such review is to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d

       1257, 1259 (Ind. 2013). It is not our goal in this endeavor to achieve the

       perceived “correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292

       (Ind. 2014). Accordingly, “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, 268 (Ind.

       Ct. App. 2008) (emphasis in original).


[23]   In order to assess the appropriateness of a sentence, we look to the statutory

       range established for the classification of the relevant offense. Whittington

       received the maximum 65-year sentence on each murder count, and the trial

       court imposed the maximum twenty-year firearm enhancement on each count.

       See Ind. Code § 35-50-2-3 (providing that a person who commits murder shall

       be imprisoned for a term ranging from forty-five to sixty-five years); I.C. § 35-

       50-2-11 (allowing an additional term of between five and twenty years when the

       defendant is found beyond a reasonable doubt to have used a firearm in the

       commission of certain offenses, including murder). The trial court ordered the

       sentences to be served consecutively, resulting in an aggregate term of 170

       years. In other words, Whittington received the maximum sentence allowed by

       law. Our Supreme Court has explained that while “the maximum possible

       sentences are generally most appropriate for the worst offenders,” this is not “a

       guideline to determine whether a worse offender could be imagined” as “it will

       always be possible to identify or hypothesize a significantly more despicable


       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 14 of 18
       scenario.”3 Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (citations and

       quotation marks omitted). Thus, in reviewing a maximum sentence, “[w]e

       concentrate less on comparing the facts of this case to others . . . and more on

       focusing on the nature, extent, and depravity of the offense . . . and what it

       reveals about the defendant’s character.” Wells v. State, 904 N.E.2d 265, 274

       (Ind. Ct. App. 2009), trans. denied.


[24]   Whittington’s offenses were heinous in nature. Whittington ended two lives

       because he was angry and jealous over a woman who wanted nothing to do

       with him, and who had even obtained a restraining order preventing

       Whittington from contacting her or her children. Whittington shot Katelin, a

       fourteen-year-old girl who was completely uninvolved in Whittington’s quarrel

       with Shane, in the face at close range. Katelin died an excruciating and

       terrifying death as a result of choking on her own blood. Although the precise

       sequence of events is not entirely clear from the record, it appears that

       Whittington then forced Shane to get into his truck. Once there, Whittington

       shot and killed Shane, and he did so in a parking lot of an apartment complex

       during the day. There were eyewitnesses to the murder, including a girl in the

       seventh grade. After the shooting, this young witness observed Whittington




       3
         Whittington provides the reporter citation for Hamilton v. State, 955 N.E.2d 723 (Ind. 2011), but refers to the
       case as McCormick v. State. Whittington cites this case for the proposition that “maximum sentences should
       be reversed for the ‘worst of the worst[,]’” and goes on to suggest that the trial judge should not have imposed
       the maximum sentence because it clearly believed that Whittington was among the worst of the worst.
       Appellant’s Brief at 23 (emphasis supplied). Whittington has apparently misread Hamilton, in which our
       Supreme Court held that trial courts “should reserve maximum sentences for classes of offenses that constitute
       the worst of the worst.” 955 N.E.2d at 727 (emphasis supplied).

       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017           Page 15 of 18
       open the driver’s side door and saw Shane’s body fall to the ground.

       Whittington then looked up at her and said “he fell” before bending down to

       grab something. Transcript at 23. Fearing that Whittington was reaching for a

       gun, the girl fled in terror. After the murders, Whittington took steps to alter

       his appearance and conceal his identity as the perpetrator. Whittington’s

       sentence is certainly not inappropriate in light of the nature of the offenses.


[25]   Whittington’s argument concerning the appropriateness of his sentence in light

       of his character focuses almost exclusively on his history of mental illness.

       There are several factors that bear on the weight, if any, to be given mental

       illness in sentencing. Taylor v. State, 943 N.E.2d 414, 420 (Ind. Ct. App. 2011),

       trans. denied. “These factors include: (1) the extent of the defendant’s inability

       to control his or her behavior due to the disorder or impairment; (2) overall

       limitations on functioning; (3) the duration of the mental illness; and (4) the

       extent of any nexus between the disorder or impairment and the commission of

       the crime.” Id.


[26]   The trial court in this case acknowledged the duration of Whittington’s mental

       illness, but expressed doubt as to its severity and impact on Whittington’s

       functioning and ability to control his behavior. See Appellant’s Appendix Vol. II at

       168 (sentencing order in which the trial court found as a mitigating

       circumstance that Whittington “had long-term mental health issues, although

       not nearly approaching the defendant’s claim to insanity, episodic blackouts,

       and the existence of the defendant’s fictional character ‘Elmer’”). We reach a

       similar conclusion for the purposes of our App. R. 7(B) review. Although

       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 16 of 18
       Whittington had long-standing psychiatric diagnoses, there was significant

       evidence presented that Whittington had a history of malingering and

       exaggerating symptoms. A number of mental health care providers expressed

       doubts concerning Whittington’s schizophrenia diagnosis, and Dr. Buckles

       testified that he saw no signs of a thought disorder in Whittington.

       Additionally, evidence presented concerning Whittington’s behavior before and

       after the offenses supports an inference that Whittington was thinking rationally

       and in control of his behavior. Furthermore, Whittington has not established a

       nexus between his mental illness and his crimes. Instead, the evidence supports

       and inference that Whittington was acting out of anger and jealousy, and that

       he expected to use his history of mental illness to escape responsibility for his

       premeditated crimes. Indeed, about a week before the murders, Whittington

       told McDonald that if he stopped taking his medication, he would have “a free

       pass to kill.” Transcript at 149. The evidence presented at trial paints a picture

       of a deceitful, manipulative, and violent criminal rather than a seriously

       mentally ill individual.


[27]   We note, as did the trial court, that Whittington’s criminal history was limited

       and remote in time. The seriousness of the crimes in this case, however,

       counterbalances the weight we attribute to this factor. We believe that the

       brutality and senselessness of the current offenses reveals Whittington’s true

       character. In sum, Whittington truly is among the worst of the worst. As such,

       he is deserving of the maximum sentence.


       Judgment affirmed.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 17 of 18
Riley, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017   Page 18 of 18
