Matthew Marcus, II v. State of Indiana , 2015 Ind. App. LEXIS 142 ( 2015 )

Mar 11 2015, 10:20 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Marcus, II, March 11, 2015
Appellant-Defendant, Court of Appeals Case No.
45A03-1407-CR-230
v. Appeal from the Lake Superior
Court
The Honorable Clarence D. Murray,
State of Indiana, Judge
Appellee-Plaintiff Cause No. 45G02-1011-MR-15
Bailey, Judge.
Case Summary
[1] Matthew Marcus, II (“Marcus”) challenges the thirty-five year sentence
imposed upon his plea of guilty to Voluntary Manslaughter, as a Class A
felony.1 He purportedly raises a single issue of whether the sentence is
manifestly unreasonable. We strike the brief, reprimand Marcus’s counsel, and
remand for appointment of competent counsel to present a cogent argument on
Marcus’s behalf.
Facts and Procedural History
[2] The parties stipulated to the facts of the crime. On November 8, 2010, Marcus
was at the residence of Tishwanda Reynolds (“Reynolds”). Reynolds refused
Marcus’s sexual advances and Marcus choked Reynolds to death, using both
his hands and a belt.
[3] Reynolds was charged with Murder, but reached a plea agreement with the
State. On May 6, 2014, Marcus pled guilty to Voluntary Manslaughter. He
received the maximum sentence possible under the terms of the plea agreement,
that is, thirty-five years. Counsel was appointed to represent Marcus in this
appeal.
Discussion and Decision
[4] At the outset, we observe that there are gross deficiencies in Marcus’s appellate
brief. Purportedly, a “manifestly unreasonable” sentence was imposed upon
Marcus. Appellant’s Brief at 1. As a standard of review, counsel offers pre-
1
Ind. Code § 35-42-1-3. The offense is now a Level 2 felony.
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2001 language of Indiana Appellate Rule 17(B), specifically: “A reviewing
court will not revise a sentence authorized by statute except where such
sentence is manifestly unreasonable in light of the nature of the offense and
character of the offender.” Appellant’s Brief at 3. He further directs our
attention to a quote from Evans v. State, 725 N.E.2d 850, 851 (Ind. 2000): “A
sentence is manifestly unreasonable when it is clearly, plainly and obviously so.”
(emphasis added.)
[5] Counsel does not acknowledge that this Court may be asked to conduct an
independent sentencing review pursuant to Indiana Appellate Rule 7(B). In the
argument section of the brief, Counsel continues to refer to a sentence that, in
his opinion, is “manifestly unreasonable” and he expresses what can best be
described as his “belief” that the nature of the offense “should not have been
treated” as an aggravating circumstance because one committing Voluntary
Manslaughter is not acting under cool reflection. Appellant’s Brief at 4-5.
Finally, Counsel requests relief of this Court consisting of a determination that
the sentence is “manifestly unreasonable” together with a remand for the
imposition of a twenty-five year sentence.
[6] In 2008, Counsel represented Gregory Davis on appeal, raising two sentencing
issues. Davis v. State, No. 45A03-0712-CR-557 (Ind. Ct. App. June 13, 2008).
In part, Counsel argued that Davis’s sentence was “manifestly unreasonable.”
Slip op. at 2. In companion footnotes, a panel of this Court reminded Counsel
that the “manifestly unreasonable” standard is “incorrect and outdated” and
directed Counsel to relevant authority, citing Indiana Appellate Rule 7(B) and
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Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified in part on other
grounds, 875 N.E.2d 218 (Ind. 2007). Slip op. at 2, n.3-4.
[7] In 2014, a panel of this Court was obliged to restate the issue presented for
appeal and again admonished Counsel that the “manifestly unreasonable”
standard is obsolete: “The ‘manifestly unreasonable’ standard for reviewing
sentences and Appellate Rule 17(B) were replaced eleven years ago with the
‘inappropriate’ standard under Appellate Rule 7(B). We urge counsel to be
more careful in the future in preparing briefs to this court.” English v. State, No.
45A04-1306-CR-322, slip op. at 1, n.1 (Ind. Ct. App. Feb. 14, 2014).
[8] Again, in 2015, a panel of this Court responded to Counsel’s “manifestly
unreasonable” argument by re-iterating: “The Indiana Supreme Court replaced
this standard over a decade ago. The applicable rule is now found in Indiana
Appellate Rule 7(B)[.]” Thompson v. State, No. 45A04-1405-CR-243, slip op. at
2, n.1 (Ind. Ct. App. Jan. 7, 2015). As for the argument that the trial court was
precluded from considering the nature and circumstances as an aggravator
because the defendant was incapable of deliberation or premeditation when
acting with sudden heat, the Court found the argument “entirely without
merit.” Slip op. at 2, n.3.
[9] Apparently oblivious to the direction of this Court and a decade of legal
progression, Counsel yet again advocates for a review of his client’s sentence
under the manifestly unreasonable standard. He wholly fails to present a
cogent argument with citation to relevant authority. It is within our authority
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to strike the brief, order the return of attorney’s fees, order Counsel to show
cause why he should not be held in contempt of court, or refer the matter to the
Supreme Court Disciplinary Commission. See Keeney v. State, 873 N.E.2d 187,
190 (Ind. Ct. App. 2007). We strike the brief and remand the matter to the trial
court for appointment of competent counsel.
[10] Remanded with instructions.
Robb, J., and Brown, J., concur.
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