Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                Oct 23 2014, 9:21 am
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:

RONALD J. MOORE                                 GREGORY F. ZOELLER
Richmond, Indiana                               Attorney General of Indiana

                                                IAN McLEAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JONATHAN GRAY,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 89A01-1309-CR-443
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE WAYNE SUPERIOR COURT
                        The Honorable Charles K. Todd, Jr., Judge
                             Cause No. 89D01-1203-MR-3


                                     October 23, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

        Appellant-Defendant, Jonathan R. Gray (Gray), appeals his conviction of felony

murder, Ind. Code § 35-42-1-1(2); conspiracy to commit robbery resulting in serious bodily

injury, a Class A felony, I.C. §§ 35-41-5-2(a), -42-5-1(1); and conspiracy to commit

robbery while armed with a deadly weapon, a Class B felony, I.C. §§ 35-41-5-2(a), -42-5-

1(1).

        We affirm.

ISSUES

        Gray raises two issues on appeal, which we restate as the following three issues:

        (1) Whether the State committed prosecutorial misconduct;

        (2) Whether the trial court abused its discretion in sentencing Gray; and

        (3) Whether the trial court violated Gray’s Sixth Amendment right to a trial.

                        FACTS AND PROCEDURAL HISTORY

        On the afternoon of March 19, 2012, Gray and his four co-defendants—Robert

Campbell (Campbell), Matthew Allen (Allen), David Lady, Jr. (Lady), and Montell

Westfall (Westfall)—congregated at Gray’s residence on Sheridan Street in Richmond,

Indiana. Initially, the cohorts were tinkering with their motorized scooters, talking, and

goofing off in the alley behind Gray’s house. At some point however, Campbell began

pacing up and down the alley as he exchanged a series of heated phone calls. When

Campbell rejoined the group, he explained that his acquaintance, Michael Sekse (Sekse),

would be coming over under the pretense that there was a large quantity of marijuana for


                                             2
sale, stored in Gray’s shed. As Campbell had previously sold marijuana to Sekse, he knew

that Sekse would have a substantial sum of cash in his possession, and he requested that

Gray, Allen, Lady, and Westfall assist him in robbing Sekse of his money. In exchange

for their involvement, Campbell promised to give them $1,000 each. Gray and the three

other co-defendants all agreed to participate. In preparation, Gray, Allen, and Westfall

armed themselves with knives, and Lady equipped himself with a hatchet he found in

Gray’s shed.

       As planned, when Sekse arrived, he followed Campbell and the others into the

small, cluttered shed for the purpose of inspecting the marijuana. Once inside the shed,

Sekse was ambushed. Gray and his co-defendants stabbed Sekse in the back, chest, and

abdomen and cut the side of his head. As indicated by the stab wounds on his arms, Sekse

struggled to fight off his attackers, but Campbell withdrew a handgun from his waistband

and shot Sekse in the head. After falling to the ground, Sekse’s labored breathing produced

a “snoring” sound, which prompted Gray to repeatedly slit his throat. (Transcript p. 514).

Campbell and Gray then dragged Sekse’s body to the back of the shed and covered him

with a plastic garden pond liner. Westfall and Lady grabbed Sekse’s bundle of money and

fled on foot to Lady’s house—the designated meeting point. When Allen and Campbell

arrived soon thereafter, Campbell counted and disbursed the cash. The robbery yielded

approximately $11,000, of which Campbell awarded $1,000 each to Allen, Lady, and

Westfall as promised. A short time later, Campbell and Gray crossed paths in the alley,

where Campbell paid Gray his $1,000 share, keeping the remaining $7,000 for himself.



                                            3
       That evening, concerned that Sekse had not come home, Sekse’s family commenced

a search. Sekse’s wife knew that he had made plans to meet Campbell and that he was

carrying a large sum of money. After a family member detected Sekse’s black pickup truck

parked in a backyard on Sheridan Street, Sekse’s wife drove over and knocked on Gray’s

door. Gray answered, but he denied knowing either Campbell or Sekse. Returning to the

abandoned pickup truck, Sekse’s wife observed that it had been ransacked, the windows

were open, and the key was still in the ignition. Moreover, the paper towels that Sekse had

used to wrap his money were scattered over the floorboards. Sekse’s wife reported her

husband’s disappearance to the Richmond Police Department.

       On March 20, 2012, after obtaining additional information from the neighbors,

police officers secured a warrant to search Gray’s shed, where they discovered Sekse’s

body, along with the discarded knives, hatchet, and shell casings that had been used in his

murder. On March 28, 2012, the State filed an amended Information, charging Gray with

Count I, felony murder, I.C. § 35-42-1-1(2); Count II, felony murder, I.C. §§ 35-41-2-4, -

42-1-1(2); Count III, robbery, a Class A felony, I.C. § 35-42-5-1(1); Count IV, robbery, a

Class A felony, I.C. §§ 35-41-2-4, -42-5-1(1); Count V, robbery, a Class B felony, I.C. §

35-42-5-1(1); Count VI, robbery, a Class B felony, I.C. §§ 35-41-2-4, -42-5-1(1); Count

VII, conspiracy to commit robbery, a Class A felony, I.C. §§ 35-41-5-2(a), -42-5-1(1);

Count VIII, conspiracy to commit robbery, a Class A felony, I.C. §§§ 35-41-2-4, -41-5-

2(a), -42-5-1(1); Count IX, conspiracy to commit robbery, a Class B felony, I.C. §§ 35-41-




                                            4
5-2(a), -42-5-1(1); Count X, aggravated battery, a Class B felony, I.C. § 35-42-2-1.5; and

Count XI, assisting a criminal, a Class C felony, I.C. § 35-44-3-2(a)(2).1

        On August 5, 2013, a four-day jury trial commenced. On August 8, 2013, at the

close of the evidence, the jury returned a verdict of guilty as to all eleven Counts, and the

trial court entered a judgment of conviction on the same. On September 6, 2013, the trial

court conducted a sentencing hearing and vacated Gray’s conviction as to Counts II, III,

IV, V, VI, VIII, X, and XI. Thereafter, the trial court imposed a sentence of sixty years for

Count I, felony murder; thirty years for Count VII, conspiracy to commit robbery resulting

in serious bodily injury as a Class A felony; and ten years for Count IX, conspiracy to

commit robbery while armed with a deadly weapon as a Class B felony. The trial court

ordered that the sentences on Count VII and Count IX run concurrently, but consecutive to

the sentence on Count I, resulting in an aggregate term of ninety years, executed in the

Indiana Department of Correction.

        Gray now appeals. Additional facts will be provided as necessary.

                                 DISCUSSION AND DECISION

                                   I. Prosecutorial Misconduct

        Gray claims that the State engaged in various acts of prosecutorial misconduct for

which he is entitled to a retrial. In particular, Gray points to several remarks made by the

prosecutor during his opening statement and closing argument, as well as to the

prosecutor’s repeated characterization of the matter as a “murder trial.” (Appellant’s Br.


1
   Indiana Code section 35-44-3-2 was repealed effective June 30, 2012. The crime of assisting a criminal
is now codified at Indiana Code section 35-44.1-2-5.

                                                   5
p. 15). When reviewing a claim of prosecutorial misconduct, our court must first decide

whether the prosecutor’s conduct was, in fact, improper. Stephens v. State, 10 N.E.3d 599,

605 (Ind. Ct. App. 2014). If we find that the prosecutor engaged in misconduct, our

analysis turns on whether, under all of the circumstances, the misconduct “placed the

defendant in a position of grave peril to which he or she would not have been subjected.”

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). We look to case law and the Rules of

Professional Conduct to assess whether a prosecutor’s argument constitutes misconduct.

Id. Then, in determining whether the prosecutor’s conduct placed the defendant in grave

peril, we consider the probable persuasive effect of the misconduct on the verdict.

Stephens, 10 N.E.3d at 605.

      In order to preserve a claim of prosecutorial misconduct for appeal, a defendant

must raise a contemporaneous objection and request an admonishment at the time the

alleged misconduct occurs.     Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).        If the

admonishment is insufficient to cure the error, or no admonishment is given, the defendant

must then request a mistrial. Bass v. State, 947 N.E.2d 456, 461 (Ind. Ct. App. 2011),

trans. denied. Here, Gray concedes that he did not make timely and specific objections to

the challenged commentary, thereby waiving his claim for appeal. However, even if a

defendant procedurally defaults on a claim of prosecutorial misconduct, appellate review

is not precluded if the misconduct constitutes fundamental error. Booher v. State, 773

N.E.2d 814, 817 (Ind. 2002). In such cases, the defendant is required to establish not only

the grounds for prosecutorial misconduct but also the additional grounds for fundamental

error. Cooper, 854 N.E.2d at 835. Notwithstanding any waiver resulting from his failure

                                            6
to object, Gray insists that he is entitled to a retrial because the State’s misconduct

amounted to fundamental error.

        The fundamental error doctrine “is an extremely narrow exception to the waiver rule

where the defendant faces the heavy burden of showing that the alleged errors are so

prejudicial to the defendant’s rights as to ‘make a fair trial impossible.’” Ryan, 9 N.E.3d

at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). To succeed on a claim

of fundamental error, the defendant must establish that, under the circumstances, the trial

court erred by not raising the issue sua sponte “because the alleged errors (a) ‘constitute

clearly blatant violations of basic and elementary principles of due process’ and (b) ‘present

an undeniable and substantial potential for harm.’” Id. (quoting Benson, 762 N.E.2d at

756).

                                        A. Opening Statement

        Gray claims that the prosecutor’s opening statement contained improper

commentary. Specifically, Gray directs our attention to the following remarks:

        Campbell needed help. He wasn’t man enough to try to do this by himself,
        he had to enlist his little henchmen to get out there and assist him with this.
        And so there was some discussion between the five [co-defendants].

        ****
               Now, we’re talking about five co-defendants who were all involved
        in this and as co-defendants go, you’ve got to take a close look at their
        testimony and I’m going to be the first one to get up here and tell you these
        guys are all essentially killers. They’re maybe not killers like you picture on
        TV, like everybody has this image of what a killer looks like, a John Wayne
        Gacy,[2] or somebody that’s all tattooed up and really muscular, but you know
2
  Notorious Chicago serial killer John Wayne Gacy, also known as the “Killer Clown,” was executed by
lethal injection on May 10, 1994, after he was convicted of murdering thirty-three young men between
1972 and 1978. John Wayne Gacy: Murderer (1942-1994), BIOGRAPHY.COM,
http://www.biography.com/people/john-wayne-gacy-10367544#synopsis (last visited Sept. 26, 2014).

                                                  7
       what, in real life that’s not necessarily what killers look like. Killers look
       like [eighteen-year-old] kids and in this situation here the other co-
       defendants, . . . and this man, [Gray], again this happened with knives, again,
       Mike Sekse was unarmed, wasn’t expecting it, nobody was fighting one on
       one, nobody could approach him individually and do this, but these guys had
       to collectively gang up on the guy inside of the shed and begin stabbing him.
       They stabbed—did—did anybody say, hey, just give us the money and we
       won’t stab you? No, nobody even gave this poor guy a chance to say all
       right, take the money so I can save my life. They didn’t give him that
       opportunity. These little animals jumped on him like a bunch of piranhas.

(Tr. pp. 293, 296 (emphases added)). Without citing to any Rule of Professional Conduct

or supportive case law, Gray asserts that by referring to the co-defendants as Campbell’s

“henchmen”; “likening [Gray] to serial killers and television Hollywood killers”; and

comparing the co-conspirators to piranhas, “the State improperly enflamed the passions of

the jury.” (Appellant’s Br. p. 14). We disagree.

       During a trial, a lawyer is prohibited from “assert[ing] personal knowledge of facts

in issue except when testifying as a witness, or stat[ing] a personal opinion as to the justness

of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or

innocence of an accused.” Ind. Professional Conduct Rule 3.4(e). However, our courts

have previously declined to find misconduct where the prosecutor’s “remarks were fair

commentary on the facts introduced at trial.” Cooper, 854 N.E.2d at 837. We find that the

prosecutor’s description of Gray and three of his co-defendants as “henchmen” in both his

opening and closing statements is a fair characterization of the evidence, which clearly

indicates that Campbell was the kingpin behind the conspiracy. A “henchman” is simply

“a trusted follower or supporter who performs unpleasant, wrong, or illegal tasks for a

powerful person (such as a politician or criminal).”                     MERRIAM-WEBSTER,


                                               8
http://www.merriam-webster.com/dictionary/henchman (last visited Sept. 29, 2014). As

the record demonstrates: Campbell arranged the sham marijuana transaction with Sekse

and lured him to the shed; Campbell offered a financial incentive to his four co-defendants

for their participation; Campbell concealed a handgun in his waistband while his helpers

were armed with knives; Campbell fired the fatal gunshot; Westfall and Lady recovered

the bundle of money, but they left it undisturbed for Campbell to count and distribute; and

although he paid each co-conspirator only $1,000, Campbell retained more than $7,000 of

the robbery proceeds. It is clear from this evidence that Gray, Allen, Lady, and Westfall

were operating at Campbell’s behest; therefore, we find no impropriety in the prosecutor’s

identification of their role as “henchmen.” (Tr. p. 293).

       In addition, we do not find the prosecutor’s statements regarding “what killers look

like” and the corresponding references to John Wayne Gacy and murderers depicted on

television to constitute misconduct. (Tr. p. 296). While we do not generally condone the

State’s discussion of notorious serial killers in an opening statement, it is well established

that the prosecutor may reasonably advocate to convince the jury of the defendant’s guilt.

In the case at bar, the prosecutor’s reference did nothing to suggest that Gray or his cohorts

were serial killers or any other “sinister connotation beyond the facts of the case.” Gann

v. State, 550 N.E.2d 73, 76 (Ind. 1990). Rather, we find that the prosecutor’s comment

was an effort to illustrate for the jury that even people who do not outwardly resemble the

stereotypical images of a murderer are capable of committing horrific crimes. See Brennan

v. State, 639 N.E.2d 649, 652 (Ind. 1994) (finding no misconduct in prosecutor’s

admonition to jury to “not let his professor-like looks deceive you, because he is a cold-

                                              9
blooded killer”). Because the State’s case relied, in part, upon the testimony of Allen,

Lady, and Westfall—who were all minors at the time of the murder—it was reasonable for

the prosecutor to prepare the jurors for the fact that they would be hearing gruesome

evidence from very young co-defendants.

       As to the prosecutor’s description of Gray and the others as “animals” who attacked

Sekse “like a bunch of piranhas[,]” we find no misconduct. (Tr. p. 296). It is the

prerogative of the prosecuting attorney

       to argue the State’s side of the case forcefully and to discuss the evidence
       pertinent thereto. We can perceive nothing unfair or prejudicial about
       permitting the prosecutor to argue his case in such a manner so long as his
       statements are reasonably calculated to sway the jury to the State’s point of
       view in light of the evidence adduced at trial, and so long as he makes no
       deliberate distortions or improper comments.

Morris v. State, 384 N.E.2d 1022, 1025-26 (Ind. 1979). The evidence presented to the jury

demonstrated that five young men—armed with knives and a handgun—lured an unarmed

and unsuspecting individual into a shed under false pretenses and ambushed him, savagely

murdering him for the sake of $1,000 (in the case of Gray, Allen, Lady, and Westfall).

After killing Sekse and taking his money, Campbell and Gray callously dragged his body

to a corner of the shed and concealed it with junk and other debris. The pathologist who

conducted the autopsy testified that even if Sekse had not sustained the gunshot to the brain,

the fourteen stab wounds, which included the four slits that Gray exacted on Sekse’s throat,

would nevertheless have resulted in death. Accordingly, we find that the prosecutor’s

attempt to sway the jury by analogizing the co-defendants’ conduct to that of piranhas




                                             10
(which are reputed to ferociously attack their prey in packs), though forceful, is neither

unfair nor misleading. See id. at 1026.

                     B. Characterization of Matter as a “Murder Trial”

       Next, Gray claims that the prosecutor’s “consistent use of the term murder”

constituted misconduct. (Appellant’s Br. p. 15). Specifically, Gray argues that he

       was not charged with murder. He stands convicted of felony murder for the
       death of Mike Sekse which occurred during a conspiracy to commit robbery
       as well as conspiracy to commit robbery . . . . The State’s preview of the
       evidence here was as if this were a murder trial and the words used by the
       prosecutor were an attempt to get the jury thinking about this as a murder
       case and not as a felony murder and conspiracy case.

(Appellant’s Br. p. 15). Gray does not cite any case law or other authority to support his

position that his charges of “felony murder” are separate and distinct from the crime of

“murder,” such that the State’s repeated references to “the day of the murder” warrant a

retrial. (Appellant’s Br. p. 17). Again, we disagree.

       Contrary to Gray’s unsubstantiated assertion, we find no legal distinction that

precludes characterizing a felony murder as a murder. Felony murder is codified under the

“Murder” section of the Indiana Code, which provides that “[a] person who . . . kills another

human being while committing or attempting to commit . . . robbery . . . commits murder,

a felony.” I.C. § 35-42-1-1(2) (emphasis added). Although the elements to prove a murder

that is committed in the course of another felony differ from those required to prove murder

by a knowing or intentional killing, murder and felony murder are equal in rank. See I.C.

§ 35-42-1-1(1)-(2); Hobson v. State, 675 N.E.2d 1090, 1094 (Ind. 1996).




                                             11
       Gray’s argument is even less persuasive in light of the remarks made by defense

counsel during the trial. In the defense’s opening statement, Gray’s attorney stated that

       [felony murder is] the one instance when a person can actually be convicted
       of murder without having intended to kill someone. [It is] a controversial
       theory but it is the law in the State of Indiana. And the end result is the same.
       The conviction is the same if you choose to convict someone of felony
       murder as it would be to convict him of a murder. Same statute, different
       way of getting there.

(Tr. pp. 312-13). Then, during his closing argument, defense counsel again told the jury,

“Don’t be mistaken[,] [felony murder is] every bit as serious a charge, it’s still called

murder, the consequences are still the same, but to get there the State has a different set of

facts that [it] [has] to prove.” (Tr. p. 789). Furthermore, in addition to the fact that both

the prosecutor and defense counsel repeatedly explained the concept of felony murder, the

jury instructions also set forth Gray’s charges for felony murder and clearly identified the

elements that the State was required to prove in order for the jurors to convict. As such,

we find no misconduct in the prosecutor’s references to Sekse’s murder, and because Gray

has not established the grounds for prosecutorial misconduct in any of the prosecutor’s

other remarks, his claim of fundamental error must also fail.

                                  II. Ninety-Year Sentence

       Gray claims that the trial court abused its sentencing discretion by ordering that he

serve an executed term of ninety years. The trial court is vested with sound discretion in

matters of sentencing. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

reh’g. On appeal, we will review sentencing decisions only for an abuse of that discretion.

Id. We will find an abuse of discretion where the trial court’s decision is “clearly against


                                              12
the logic and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom.” Id.

       The trial court may impose any sentence authorized by statute. Robertson v. State,

871 N.E.2d 280, 283 (Ind. 2007). In making a sentencing determination, the trial court

may consider any number of aggravating and mitigating factors. I.C. § 35-38-1-7.1.

However, any aggravating and/or mitigating circumstances identified by the trial court

must be supported by the record. Anglemyer, 868 N.E.2d at 490. In addition, in order to

facilitate appellate review, trial courts are required to enter a sentencing statement that

reasonably details the court’s bases for imposing the specific sentence, including its

findings, if any, of aggravating or mitigating circumstances. Id. It is well-settled that “[a]

single aggravating circumstance is sufficient to justify a sentence enhancement.” Anderson

v. State, 961 N.E.2d 19, 33 (Ind. Ct. App. 2012), trans. denied. Moreover, the same valid

aggravator may be used to enhance a sentence and to justify consecutive sentences.

Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012).

       In the present case, for conspiracy to commit robbery as a Class A felony and a

Class B felony, the trial court sentenced Gray to the advisory terms of thirty years and ten

years, respectively, running concurrently. I.C. §§ 35-50-2-4, -5. On the felony murder

charge, the trial court ordered a consecutive, enhanced sentence of sixty years. I.C. § 35-

50-2-3(a). In support of its decision, the trial court identified the following statutory and

non-statutory aggravating circumstances: Gray’s criminal history; his lack of remorse; the

brutal nature of the offense; and Gray’s overall dishonorable character, which includes his

failure to establish paternity to a six-year-old daughter, his unresolved criminal matters in

                                             13
Oklahoma; his habitual drug use, and an absence of gainful employment in his work

history. The trial court explicitly rejected all of the mitigating factors proffered by Gray.

       Gray now asserts that the trial court abused its discretion by failing to recognize that

his criminal history consists only of non-violent misdemeanors “and that approximately

four years had elapsed between [his] offenses in Oklahoma and this matter.” (Appellant’s

Br. p. 22). Gray further argues that his non-violent misdemeanor history warrants only

concurrent, advisory sentences, thereby reducing his ninety-year sentence to fifty-five

years. We disagree.

       The trial court specifically found, and the record supports, that Gray’s criminal

record consists of three misdemeanor convictions and multiple other arrests. The trial court

acknowledged that Gray’s criminal history

       is clearly not the most egregious record that the [c]ourt’s seen, but it’s also
       not something to be dismissive about and it is clearly an aggravator in this
       cause, especially given [Gray’s] young age—relatively young age. [Gray]
       has received previously suspended sentences and also received previous time
       to serve, neither of which appear to deter [Gray] from committing criminal
       activity which has brought us here today.

(Tr. p. 926). The trial court found it further significant that two of Gray’s misdemeanor

convictions—one for obtaining cash and merchandise by means of a bogus check and the

other for a felony burglary that was ultimately pled down to misdemeanor breaking and

entering—involved victims. Standing alone, the fact that an individual “has a history of

criminal or delinquent behavior” is sufficient to constitute an aggravating circumstance.

I.C. § 35-38-1-7.1(a)(2). We are unpersuaded by Gray’s contentions that the trial court did

not accord sufficient consideration to certain facets of his criminal record because the trial


                                              14
court has no obligation to weigh aggravating or mitigating factors. Kimbrough v. State,

979 N.E.2d 625, 629 (Ind. 2012). Additionally, despite the fact that a trial court is not

required to accept a defendant’s arguments regarding mitigating circumstances, we

nevertheless note that Gray’s allusion to a four-year gap in his criminal activity, which

might favor a mitigated sentence, is wholly unsupported by the record. See I.C. § 35-38-

1-7.1(b)(6); Williams v. State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). In fact, Gray

continues to have unresolved criminal matters in at least two Oklahoma counties, including

an outstanding warrant for failing to appear in a pending misdemeanor case.

       Gray also argues that the trial court erroneously considered the Indiana Risk

Assessment System (IRAS), included in his pre-sentence investigation (PSI) report, as an

aggravating circumstance. During the sentencing hearing, the trial court noted the results

of the IRAS, which identified Gray as very likely to reoffend, but specifically clarified that

it did not consider it as an aggravating factor. However, the trial court subsequently stated

that the IRAS “supports what [it] believe[s] to be the character of [Gray] and his likelihood

for committing future criminal acts.” (Tr. p. 932). “Evidence-based offender assessment

scores are not to be considered aggravating or mitigating factors or determine the gross

length of a sentence.” Williams, 997 N.E.2d at 1165. Thus, if the trial court did, in fact,

rely on the IRAS as a separate aggravating factor, it would be inappropriate.              Id.

Notwithstanding the IRAS, we find that the trial court cited ample other uncontested

evidence to support finding Gray’s character to be an aggravating circumstance, including

Gray’s long-term drug use; his proclivity for criminal associations and activity; and his

habitual refusal to take responsibility for his obligations, as evidenced by his unresolved

                                             15
criminal matters, his refusal to establish paternity for a six-year-old child, and his mere

twelve-months of legitimate employment in the course of his lifetime.

        Gray also posits that “[i]t seems disingenuous to aggravate a sentence for the nature

of the offense by considering the planning, [Gray’s] role in the plan, and the post-offense

cover up when those are the specific offenses for which the jury found him guilty.”

(Appellant’s Br. pp. 24-25). We recognize that a material element of a crime may not serve

as an aggravating circumstance; however, “the nature and circumstances of the crime can

be an aggravator” so long as the trial court identifies “facts that go beyond the statutory

requirements of the crime.” Gleason, 965 N.E.2d at 711. We find that the trial court

properly decided that Gray’s conduct exceeded the statutory elements of felony murder or

conspiracy to commit robbery. In particular, the trial court found Gray’s culpability in the

conspiracy to be significant, noting that Gray provided knives to his co-defendants, took

“an active role in stabbing [Sekse,]” and that he and Campbell were “primarily responsible

for covering up the gruesome death.” (Tr. p. 935). Therefore, because the trial court

imposed sentences within the statutory regime and identified at least one valid aggravating

circumstance, we find no abuse of discretion in the trial court’s decision to enhance the

felony murder sentence or to order the sentences for felony murder and conspiracy to run

consecutively.3

                                  III. Sixth Amendment Violation



3
  Although Gray contends that the trial court abused its discretion by imposing an “inappropriate” sentence
and cites to Indiana Appellate Rule 7(B), he does not develop this argument any further. See Ind. Appellate
Rule 46(A)(8)(a). Because Gray has failed to tender any argument as to why the nature of his offense and
his character merit revision, we decline to disrupt the trial court’s sentence.

                                                    16
       Lastly, Gray claims that the trial court violated his Sixth Amendment right to a trial

by considering Gray’s outstanding warrant on a pending misdemeanor, as well as a second

warrant based on an alleged probation violation, in its sentencing decision. Indiana Code

section 35-38-1-7.1(a)(6) provides that a trial court may consider an individual’s recent

violation of “the conditions of any probation, parole, pardon, community corrections

placement, or pretrial release” as an aggravating circumstance. During the sentencing

hearing, the trial court expressed that it was considering Gray’s pending Oklahoma

warrants as part of his overall criminal history or as to the fact that he has not led a law-

abiding life; however, in its subsequent sentencing order, the trial court identified the

outstanding Oklahoma warrants as an aggravating factor under Indiana Code section 35-

38-1-7.1(a)(6).

       The United States Supreme Court has determined that, with the exception of prior

convictions, any fact that a trial court relies upon to enhance a sentence must have either

been found by a jury beyond a reasonable doubt, admitted to by the defendant, or found by

the sentencing judge after the defendant has waived Apprendi rights and consented to

judicial fact-finding. Robertson, 871 N.E.2d at 286 (citing Blakely v. Washington, 542

U.S. 296, 302 (2004)). To rely upon facts that have not been properly determined by judge

or jury or admitted to by the defendant would infringe upon the defendant’s Sixth

Amendment right to trial by jury. Edrington v. State, 909 N.E.2d 1093, 1099 (Ind. Ct. App.

2009), trans. denied. Here, neither Gray’s pending misdemeanor and failure to appear nor

his alleged probation violation have been adjudicated or conceded to by Gray.

Nonetheless, our supreme court has determined that a probation violation, even if not found

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by a jury or admitted by the defendant, may serve as a proper basis for sentence

enhancement if “the probation violation was reported in a presentence investigation report

compiled by a probation officer relying upon judicial records.” Robertson, 871 N.E.2d at

287. During the sentencing hearing, the probation officer who compiled Gray’s PSI report

testified that she included the pending Oklahoma matters in the report in reliance upon

chronological case summaries, which she obtained directly from the Oklahoma

jurisdictions holding the outstanding warrants. Therefore, we find that the trial court did

not violate Gray’s Sixth Amendment rights to the extent, if any, that it considered Gray’s

pending warrants for failing to appear and violating his probation to be an aggravating

circumstance.

                                       CONCLUSION

       Based on the foregoing, we conclude that Gray is not entitled to a retrial because

the prosecutor’s remarks do not amount to misconduct. Additionally, we conclude that the

trial court did not abuse its discretion in imposing a ninety-year sentence, and the trial court

did not violate Gray’s Sixth Amendment right to a jury trial by considering his outstanding

warrants as aggravating factors to merit a sentence enhancement.

       Affirmed.

ROBB, J. and BRADFORD, J. concur




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