Candace S. McGee v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 29 2017, 10:35 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Candace S. McGee, November 29, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1705-CR-1101
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
02D06-1606-F5-165
Crone, Judge.
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Case Summary
[1] Candace S. McGee appeals the four-year sentence imposed by the trial court
following her guilty plea to level 5 felony battery. She contends that the trial
court abused its discretion during sentencing and that her sentence is
inappropriate in light of the nature of the offense and her character. Finding no
abuse of discretion, and that McGee has not met her burden to demonstrate
that her sentence is inappropriate, we affirm.
Facts and Procedural History
[2] On April 16, 2016, Marquel Marsh was in his residence when someone began
“banging” on his front door. Appellant’s App. Vol. 2 at 13. When Marsh
opened the door, he saw his ex-girlfriend, McGee, walking away toward her
vehicle. She then entered her vehicle, pulled up to Marsh’s residence, pointed a
gun out the passenger window, and fired at Marsh. As Marsh attempted to
retreat into the residence, a bullet hit his front glass door, causing the glass to
shatter. Some of the shattered glass hit Marsh, causing a laceration to his right
arm. After shooting at Marsh, McGee sped away. Marsh went to the hospital
for his injuries.
[3] The State charged McGee with level 5 battery by means of a deadly weapon,
level 5 felony criminal recklessness, and level 6 felony pointing a firearm.
McGee pled guilty to all three counts; however, the trial court subsequently
dismissed the criminal recklessness and pointing a firearm counts and entered
judgment of conviction only on the battery count. Following a hearing, the trial
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court sentenced McGee to a four-year term, with three years executed and one
year suspended to probation. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion during
sentencing.
[4] McGee first argues that the trial court abused its discretion in finding
aggravating and mitigating circumstances. Sentencing decisions rest within the
sound discretion of the trial court and, so long as the sentence imposed is within
the statutory range, we review it only for an abuse of discretion. Anglemeyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. 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
deductions to be drawn therefrom. Id. A trial court may abuse its discretion in
a number of ways, including failing to enter a sentencing statement; entering a
sentencing statement that includes aggravating and mitigating factors if any, but
the record does not support the reasons; the sentencing statement omits reasons
that are clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law. Id. at 490-91.
[5] McGee argues that the trial court improperly considered an element of her
offense, use of a deadly weapon, as an aggravating factor. In Gomillia v. State,
13 N.E.3d 846 (Ind. 2014), our supreme court explained that “[w]here a trial
court’s reason for imposing a sentence greater than the advisory sentence
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includes material elements of the offense, absent something unique about the
circumstances that would justify deviating from the advisory sentence, that
reason is improper as a matter of law.” Id. at 852-53 (citations and quotation
marks omitted). Thus, if the trial court relies upon an aggravating factor that is
also a material element of the offense, then the trial court abuses its discretion;
but if there is something unique about the circumstances of the crime, then
there is no abuse of discretion in relying upon these circumstances as an
aggravating factor. See id. at 853 (“Generally, the nature and circumstances of a
crime is a proper aggravating circumstance.”).
[6] Our review of the trial court’s sentencing statement reveals that the trial court
did not simply rely on McGee’s use of a deadly weapon in committing her
crime; rather, the court relied on the manner in which she carried out her crime
as an aggravating circumstance. Specifically, the trial court noted that a lesser
sentence would “diminish the seriousness of this offense” because “you can’t
just walk up and shoot somebody because sometime in the past he hurt you.”
Sent. Tr. at 11. Moreover, while the trial court referenced McGee’s use of a
firearm in committing her crime as particularly troubling, battery with a deadly
weapon need not involve a firearm but simply any material that is readily
capable of causing serious bodily injury. See Ind. Code § 35-31.5-2-86(a)(1)(2).
Accordingly, the circumstances of McGee’s crime were unique and the court
did not abuse its discretion in relying upon these circumstances as an
aggravating factor.
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[7] The trial court found McGee’s guilty plea and remorse as mitigating factors.
McGee argues that the trial court abused its discretion in failing to find her
employment, level of education, difficult childhood, and prior abuse allegedly
suffered at the hands of Marsh as mitigating circumstances. An allegation that
the trial court failed to identify or find a mitigating factor requires the defendant
to establish that the mitigating evidence is both significant and clearly supported
by the record. Anglemeyer, 868 N.E.2d at 493.
[8] Contrary to McGee’s assertion, the trial court was not obligated to consider her
“ability to maintain gainful employment” as a mitigating factor. Appellant’s
Br. at 19. Indeed, many people are gainfully employed such that a trial court is
not required to note employment as a mitigating factor. Newsome v. State, 797
N.E.2d 293, 301 (Ind. Ct. App. 2003), trans. denied (2004). As for her level of
education, there is nothing in the record to indicate that McGee advanced this
factor as mitigating during sentencing. If a defendant does not advance a factor
to be mitigating at sentencing, we will presume that the factor is not significant,
and the defendant is precluded from advancing it as a mitigating circumstance
for the first time on appeal. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000).
[9] As for her troubled childhood and the alleged abuse suffered at the hands of
Marsh, the evidence in the record is conflicting and somewhat inconsistent
regarding both proffered circumstances. Thus, we cannot say that the evidence
was both significant and clearly supported by the record. The trial court did not
abuse its discretion in concluding that neither of these was a significant
mitigating circumstance.
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[10] In any event, even if the trial court had abused its discretion in its consideration
of (or failure to consider) aggravating and mitigating circumstances during
sentencing, reversal would not be necessary, because as we will explain below,
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 its discretion in the process it used to sentence the defendant, the
error is harmless if the sentence imposed was not inappropriate”), trans. denied.
Section 2 – McGee has not met her burden to demonstrate that
her sentence is inappropriate.
[11] McGee claims that her sentence is inappropriate and invites this Court to
reduce it pursuant to Indiana Appellate Rule 7(B), which provides that we may
revise a sentence authorized by statute 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.” The defendant bears
the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given
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case.” Id. at 1224. We consider all aspects of the penal consequences imposed
by the trial court in sentencing the defendant, including whether a portion of
the sentence is ordered suspended “or otherwise crafted using any of the variety
of sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or if another sentence might be
more appropriate; rather, the question is whether the sentence imposed is
inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
[12] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a level 5 felony is between one and six years, with the advisory sentence
being three years. Ind. Code § 35-50-2-6. The trial court here imposed a four-
year sentence, with one year suspended to probation, resulting in an executed
sentence of three years.
[13] The nature of McGee’s offense is quite serious. She did not merely commit a
garden-variety battery with something that may loosely be considered a deadly
weapon. Rather, she pointed a loaded firearm and fired a bullet at her ex-
boyfriend. The shot narrowly missed him and luckily hit the glass door instead.
Marsh could have been killed, and we do not accept McGee’s attempts to
downplay the egregiousness of her behavior. She has not persuaded us that a
three-year executed term is inappropriate in light of the nature of her offense.
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[14] McGee does not fare much better when her character is considered. When
considering the character of the offender, one relevant fact is the defendant’s
criminal history. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017),
trans. denied. Twenty-nine-year-old McGee is no stranger to the criminal justice
system. McGee had some contact with the juvenile justice system, and albeit
minor offenses, McGee has four prior adult misdemeanor convictions. She was
granted the leniency of probation and/or a suspended sentence on each of those
convictions, yet she violated the terms of her probation and/or suspended
sentence every time. McGee has shown utter disrespect for the judicial system
in this regard and has refused to reform her behavior. Moreover, McGee
admits to a long history of substance abuse. Under the circumstances, McGee
has failed to convince us that her sentence is inappropriate in light of her
character. We decline the invitation to reduce her sentence and affirm the
sentence imposed by the trial court.
[15] Affirmed.
Robb, J., and Bradford, J., concur.
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