MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Feb 10 2017, 5:36 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
J. Clayton Miller                                        Curtis T. Hill, Jr.
Richmond, Indiana                                        Attorney General of Indiana

                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Bert McQueen, III,                                       February 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         81A04-1602-CR-281
        v.                                               Appeal from the Union Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew R. Cox,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         81C01-1409-MR-180



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017    Page 1 of 8
[1]   Following a jury trial, Bert McQueen, III, was convicted of murder, a felony,

      and obstruction of justice, a Level 6 felony. He then admitted to being a

      habitual offender. The trial court sentenced McQueen to sixty-three years for

      his murder conviction. Pursuant to an agreement between McQueen and the

      State, the trial court sentenced McQueen to a concurrent two-year term for his

      obstruction of justice conviction and enhanced the murder sentence by six years

      for the habitual offender adjudication, for a total aggregate sentence of sixty-

      nine years. On appeal, McQueen argues that his sixty-three-year sentence for

      murder is inappropriate in light of the nature of the offense and his character.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The facts most favorable to the convictions follow. In early September 2014,

      McQueen lived with his lifelong friend Brandon Wicker while he worked on

      Wicker’s house. In the days leading up to September 5, 2014, a neighbor heard

      escalating arguments between McQueen and Wicker. McQueen also made

      statements to a friend that he was going to kill Wicker or “kick his ass” because

      Wicker apparently owed McQueen money. Transcript at 505. In the early

      evening hours on September 5, 2014, McQueen, who had been working

      outside, entered Wicker’s house, picked up a gun from the table, and aimed it at

      Wicker. McQueen said “bang” and squeezed the trigger, shooting Wicker in

      the head from approximately twelve inches away. Id. at 567. McQueen

      observed black blood and saw Wicker fall to the floor. McQueen then fled to a


      Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017   Page 2 of 8
      neighbor’s house and did not summon aid or try to help Wicker. A short time

      later, McQueen returned to Wicker’s house. Using a towel, McQueen wiped

      off the gun and then he wrapped the gun in the towel before throwing it in a

      nearby river.


[4]   Around 8:10 p.m., McQueen arrived at another neighbor’s home. After

      approximately twenty minutes, that neighbor was informed by another that

      McQueen had shot Wicker. The neighbor questioned McQueen, who admitted

      what he had done. That neighbor then called the police. When police arrived,

      McQueen informed them that he had shot Wicker and directed them to

      Wicker’s home. Wicker was discovered lying in a large pool of blood on the

      kitchen floor. Although emergency personnel observed brain matter coming

      from the site of the gunshot wound, it was determined that Wicker was still

      breathing. He was stabilized for transport by helicopter to the hospital, where

      Wicker was placed on life support. After consulting with doctors about

      Wicker’s condition, Wicker’s family made the decision to remove him from life

      support.


[5]   On September 16, 2014, the State charged McQueen with Count I, murder, a

      felony, and filed a separate information alleging McQueen to be a habitual

      offender. The State later amended the charging information to add Count II,

      possession of a firearm by a serious violent felon, a Level 4 felony; County III,

      reckless homicide, a Level 5 felony; and Count IV, obstruction of justice, a

      Level 6 felony. The State dismissed Count III prior to trial. On December 8,

      2015, a trifurcated jury trial commenced. The jury found McQueen guilty of

      Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017   Page 3 of 8
      Counts I, II, and IV. At the conclusion of the first phase of the trial, the parties

      filed a Joint Plea and Sentencing Recommendation providing that McQueen

      would admit to the habitual offender allegation and have his murder sentence

      enhanced by six years. In exchange, the State agreed to dismiss Count II and

      that any sentence imposed for Count IV would be served concurrently with the

      sentence for the murder conviction.


[6]   A sentencing hearing was held on January 8, 2016. In sentencing McQueen,

      the trial court identified two aggravating factors: McQueen’s lengthy criminal

      history, which began at the age of fifteen, and his failure to seek medical

      treatment for Wicker after he shot him. The trial court gave McQueen some

      mitigation for remorse but noted “that’s not a lot.” Id. at 713. Finding that

      McQueen’s criminal history is “one that is rarely seen”, the trial court

      determined that an aggravated sentence was warranted. Id. at 718. The trial

      court then sentenced McQueen to sixty-three years for the murder conviction.

      In accordance with the agreement between McQueen and the State, the trial

      court also sentenced McQueen to a concurrent two-year term for his

      obstruction of justice conviction and enhanced the murder sentence by six years

      for the habitual offender adjudication, for a total aggregate sentence of sixty-

      nine years. McQueen now appeals. Additional facts will be provided as

      necessary.


                                          Discussion & Decision




      Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017   Page 4 of 8
[7]   McQueen argues that the sixty-three-year sentence for his murder conviction is

      inappropriate. Despite the fact that the trial court imposed a sentence that is

      authorized by statute, we may revise McQueen’s sentence if, “after due

      consideration of the trial court’s decision, [we] find that the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender.” Ind. Appellate Rule 7(B). Ultimately, “[t]he principal role of

      appellate review should be to attempt to leaven the outliers, and identify some

      guiding principles for trial courts and those charged with improvement of the

      sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

      Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Thus, “whether we regard

      a sentence as appropriate ... 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.” Id. at 1224. McQueen bears

      the burden of persuading our court that his sentence is inappropriate. Conley v.

      State, 972 N.E.2d 864, 876 (Ind. 2012).


[8]   McQueen argues that he does not deserve a sixty-three-year sentence for

      murder because, as the trial court indicated, he is not the “worst of the worst”.

      Transcript at 713. The advisory sentence is the starting point the legislature has

      chosen as an appropriate sentence for the crime committed. Childress v. State,

      848 N.E.2d 1073, 1081 (Ind. 2006). The maximum possible sentence is

      generally most appropriate for the worst offenders. Reid v. State, 876 N.E.2d

      1114, 1116 (Ind. 2007). A murder conviction carries a possible sentence of

      forty-five to sixty-five years with the advisory sentence being fifty-five years.


      Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017   Page 5 of 8
       Ind. Code § 35-50-2-3. McQueen was sentenced to sixty-three years, two years

       shy of the maximum. We are thus not inclined to evaluate whether he is the

       “worst of the worst.”


[9]    With regard to the nature of the offense, McQueen argues that under the facts

       of this case, an aggravated sentence is not warranted. McQueen attempts to

       discount the aggravating factor of his failure to summon aid for Wicker by

       pointing out that, from his perspective, after he saw black blood come from

       Wicker’s head, he believed Wicker was already dead.1 McQueen’s subjective

       belief does not change the fact that Wicker was still breathing and left lying in a

       pool of blood for nearly an hour before a neighbor summoned help. Moreover,

       we note that during the time McQueen could have been summoning aid, he

       found the time to try to conceal the crime by wiping his fingerprints from the

       gun and then throwing the gun in a nearby river.


[10]   McQueen also argues that the crime was not particularly gruesome, focusing on

       the fact that Wicker was not tortured, sexually abused, or robbed. McQueen’s

       argument in this regard does not support his claim that we should view the

       nature of the offense more favorable to him because had Wicker’s murder

       involved any of the circumstances asserted by McQueen, McQueen likely




       1
         McQueen also asserts that he “is in fact responsible for Wicker receiving medical treatment.” Appellant’s
       Brief at 9. This argument is, at best, misleading. McQueen did not call 911 or seek medical assistance
       immediately after he shot Wicker. Instead, Wicker was more concerned with concealing the weapon.
       Assistance was summoned by a neighbor only after the neighbor confronted McQueen about an hour after
       the shooting occurred and McQueen admitted what he had done.

       Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017            Page 6 of 8
       would have faced additional charges or even been eligible for a death sentence

       or a sentence of life imprisonment without parole.


[11]   McQueen also argues the nature of the offense was not heinous in that Wicker

       died from a single gunshot to the head. We acknowledge that Wicker was shot

       only once. However, it is the circumstances surrounding the shooting that are

       particularly telling. We note that in the weeks leading up to the murder,

       McQueen had threatened to kill Wicker because Wicker owed him money. In

       the days prior to the murder, a neighbor heard increasingly escalating

       arguments between the two men. This senseless shooting occurred when

       McQueen entered Wicker’s home, picked up a gun, and shot Wicker, who was

       a lifelong friend, in the head from approximately twelve inches away.

       McQueen then left his friend to die alone on the floor in a pool of his own

       blood while he took efforts to conceal the weapon.


[12]   Turning to the character of the offender, we note, as did the trial court,

       McQueen’s extensive criminal history. We agree with the trial court that this

       alone justified an enhanced sentence. McQueen’s criminal history began when

       he was fifteen years old. As a juvenile, McQueen was adjudicated for

       aggravated battery and escape. As an adult, McQueen’s criminal convictions

       span decades and cross state lines. McQueen has accumulated at least thirty

       convictions, including felony convictions for offenses such as robbery while

       armed with a deadly weapon; battery by means of a deadly weapon (by using a

       shotgun as a club); and multiple counts of theft and forgery. He has also

       accumulated offenses for resisting law enforcement, public intoxication,

       Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017   Page 7 of 8
       disorderly conduct, possession of marijuana, affray (a.k.a. fighting), tampering

       with a vehicle, and destruction of private or public property. Despite leniency

       through suspended sentences, diversion programs, and probation, McQueen

       continued to commit crimes. As the trial court aptly noted, McQueen’s

       criminal history is “one that is rarely seen” and clearly reflects negatively on his

       character. Transcript at 718. Also reflecting negatively on McQueen’s character

       is the fact that he attempted to persuade his girlfriend at the time of the shooting

       to not testify against him.


[13]   In sum, we conclude that the nature of the offense and especially the character

       of the offender as demonstrated by McQueen’s criminal history do not justify a

       downward revision of McQueen’s sentence. McQueen’s sixty-three-year

       sentence for murder is not inappropriate.


[14]   Judgment affirmed.


[15]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 81A04-1602-CR-281 |February 10, 2017   Page 8 of 8
