Marcus Lamont Weston v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 01 2019, 8:32 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Mullins Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana Josiah J. Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcus Lamont Weston, October 1, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1023
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1807-F3-49
Bailey, Judge.
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Case Summary
[1] Marcus Lamont Weston (“Weston”) pleaded guilty to Aggravated Battery, as a
Level 3 felony,1 for which he received a sentence of thirteen years
imprisonment. He asks that, pursuant to Indiana Appellate Rule 7(B), we
revise his sentence as inappropriate and that we remand for clarification as to
whether his sentence should include a recommendation for therapeutic
community participation. We affirm his sentence term but remand for
clarification.
Facts and Procedural History
[2] On July 5, 2018, Weston encountered his friend, Joseph Holder (“Holder”),
walking with Laketa Leonard (“Leonard”), whom Weston regarded as his
girlfriend. Weston slapped Leonard and stabbed Holder in the chest, using a
pocketknife. Weston took $187.00 from Holder’s pants pocket and threatened
to “put thirty rounds” into Holder. (App. Vol. II, pg. 12.) Holder was able to
stumble away, but he fell and hit his head on rocks and a train track.
Bystanders assisted Holder to a hospital, where he was treated for his injuries.
Holder identified Weston as his assailant and police officers located Weston the
following day; however, Weston provided a fictitious name.
1
Ind. Code § 35-42-2-1.5.
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[3] On July 7, 2018, the State charged Weston with aggravated battery and
robbery. The charges were subsequently amended to add two counts of robbery
and one count of false informing. On February 21, 2019, Weston pleaded
guilty to aggravated battery and the remaining charges were dismissed. An
unrelated drug dealing charge was also dismissed as part of Weston’s plea deal
with the State.
[4] On April 4, 2019, the trial court imposed upon Weston a sentence of thirteen
years imprisonment, with none suspended. He now appeals.
Discussion and Decision
Appropriateness of Sentence
[5] The sentencing range for a Level 3 felony is between three years and sixteen
years, with nine years as the advisory sentence. I.C. § 35-50-2-5. Finding
Weston’s criminal history and violation of parole to be aggravators, the trial
court sentenced him to four years above the advisory sentence.
[6] Under Indiana Appellate Rule 7(B), this “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.” In performing our review, we assess “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.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is
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an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve
our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d
157, 165 (Ind. 2017). The “considerable deference” given to the trial court’s
sentencing judgment “should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015) (citing Cardwell, 895 N.E.2d at 1222).
[7] The nature of the offense involves the details and circumstances of the crime
and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.
2017). Weston, in an act of revenge, stabbed his friend in the chest with a
pocketknife. As Weston observes, Holder was able to walk away and seek
medical attention. Notably, however, Weston did not assist Holder; rather,
Weston rifled through Holder’s pockets and took his cash. He also verbally
threatened to shoot Holder. The nature of the offense does not suggest that
sentence revision is warranted.
[8] The character of the offender is found in what courts learn of the offender’s life
and conduct. Id. Weston asserts that the “negative aspects” of his character are
largely “born of an untreated addiction to alcohol.” Appellant’s Brief at 11.
Weston has a significant criminal history, consisting of seven felony convictions
and thirteen misdemeanor convictions. He was on parole from the State of
Wisconsin when he committed the instant offense. Thus, he has been afforded
rehabilitative services in the past, without success. His decision to plead guilty
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indicates some acceptance of responsibility for his actions; however, he also
received a significant benefit when other charges were dismissed. What we
have learned of his character does not militate toward a lesser sentence.
[9] Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the sentence does not
warrant appellate revision.
Remand for Clarification
[10] At the sentencing hearing, Weston admitted to an alcohol addiction and
requested placement in a purposeful incarceration program or, alternatively, a
therapeutic community. The trial court briefly discussed “time cuts” and
addressed Weston: “I don’t have any problem with you getting into whatever
programs you want to get into, but that’s up to you.” (Tr. Vol. II, pg. 34.) At
the conclusion of the oral sentencing statement, the trial court again addressed
Weston: “I’ll put in the sentencing order, Mr. Weston, to try to help you out a
little bit, that I will recommend that you get yourself into a therapeutic
community, but that’s up to you. You need to work at it. Get your time cuts.”
Id. at 36. However, neither the written sentencing order nor the abstract of
judgment included a recommendation for Weston’s placement in the Indiana
Department of Correction Therapeutic Community. The abstract of judgment
included a box with a notation that Weston was not a participant in a
purposeful incarceration program.
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[11] When the trial court intends to make a placement recommendation, this should
be reflected in the abstract of judgment. See Hogan v. State, 95 N.E.3d 181, 184-
85 (Ind. Ct. App. 2018). When, as here, we are confronted with a conflict
between the oral sentencing statement and the written sentencing statement, we
may remand for clarification. McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007).
We remand with instructions for the trial court to clarify whether it intended to
make a placement recommendation for Weston and, if so, to correct the
judgment of conviction and the abstract of judgment.
Conclusion
[12] The thirteen-year sentence imposed upon Weston is not inappropriate. We
remand for clarification as to whether the trial court intended to include a
recommendation regarding Weston’s therapeutic community participation and,
if so, for correction of the sentencing order and abstract of judgment.
[13] Affirmed and remanded for clarification.
Najam, J., and May, J., concur.
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