Melvin Ryan Bruce v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 02 2018, 6:42 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
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
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Appellate Division Attorney General of Indiana
Office of the Public Defender
Henry A. Flores, Jr.
Crown Point, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melvin Ryan Bruce, November 2, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1430
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1708-MR-6
Bailey, Judge.
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Case Summary
[1] Melvin R. Bruce (“Bruce”) appeals his conviction, following a plea agreement,
for voluntary manslaughter, a Level 2 felony.1 We affirm.
Issues
[2] Bruce raises two issues on appeal which we restate as follows:
I. Whether the trial court abused its discretion in sentencing.
II. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
Facts and Procedural History
[3] On August 29, 2017, Bruce was with his girlfriend, Temica Spencer
(“Spencer”), at their residence in Lake County. Spencer’s twelve-year-old
daughter and Bruce’s and Spencer’s one-year-old daughter were also present in
the home. Bruce and Spencer got into a heated argument and exchanged
threats. Spencer briefly left the argument and returned with a knife. Bruce
“was frightened for his life, although not to the reasonable level of fear required
to establish self defense.” Appellant’s App. Vol. II at 83. Bruce retrieved his
1
Ind. Code § 35-42-1-3.
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handgun and shot Spencer one time in the chest. Spencer died as a result of the
gunshot wound.
[4] The State charged Bruce with murder2 and sought an enhancement based on
Bruce’s use of a firearm in the commission of the offense. 3 After the jury trial
began, Bruce entered into a plea agreement under which he pled guilty to
voluntary manslaughter. The agreement allowed the parties to argue for an
appropriate sentence but capped sentencing to eighteen years of imprisonment.
The plea agreement also provided that, at the time of sentencing, the State
would dismiss the charge of murder and the firearm enhancement.
[5] The court conducted a sentencing hearing on May 17, 2018. Bruce presented
only one witness, his brother, William Bruce (“William”), who testified
regarding Bruce’s good character and his remorse but also described Bruce’s
and Spencer’s relationship as “volatile” “due to the alcohol.” Tr. at 147, 151.
William further testified that Bruce’s two misdemeanor convictions were also
“alcohol related.” Id. at 147. And, although William stated that Bruce gave his
oldest child, Melvin Jr. (“Jr.”), whatever he required, William admitted that
Bruce was $20,000 behind in child support payments for Jr. William testified
that Bruce had “surrendered [to William his] parental rights” to his one-year-
old daughter, and William now cares for that child. Id. at 157.
2
I.C. § 35-42-1-1(1).
3
I.C. § 35-50-2-11(d).
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[6] Bruce asked the court to impose a fifteen-year sentence with eight years
executed and placement in a community corrections work program. At the end
of the sentencing hearing, the trial court noted the nature of the crime (killing in
sudden heat), Bruce’s lack of prior felony convictions, Bruce’s support of family
and friends, and Bruce’s lack of criminal history of violence. Id. at 181. The
court also found that the fact that the killing took place while the two young
children were in the home was an aggravator. The court found that the
mitigating factors of no significant criminal history and pleading
guilty/accepting responsibility were balanced out by the “nature and
circumstances” of the crime. Id. at 184.
[7] In its written sentencing order, the court found the mitigating factors to be: “(1)
[Bruce] has no significant history of delinquency or criminal activity[, and] (2)
[Bruce] has pled guilty and admitted responsibility.” Appellant’s App. Vol. II
at 140. The court further found the following to be aggravators: “(1) The
character of [Bruce] is violent and aggressive[, and] (2) [t]he crime of violence
occurred within the family home” while the children were present. Id. at 141.
The trial court sentenced Bruce to fifteen years executed in the Department of
Correction (“DOC”), with 262 days of credit time. This appeal ensued.
Discussion and Decision
Abuse of Discretion in Sentencing
[8] Bruce maintains that the trial court erred in sentencing him. Sentencing
decisions lie within the sound discretion of the trial court. Cardwell v. State, 895
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N.E.2d 1219, 1222 (Ind. 2008). 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, and actual deductions to be drawn
therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation
omitted), trans. denied. A trial court abuses its discretion in sentencing if it does
any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a
sentencing statement that explains reasons for imposing a
sentence—including a finding of aggravating and mitigating
factors if any[ ]—but the record does not support the reasons;”
(3) enters a sentencing statement that “omits reasons that are
clearly supported by the record and advanced for consideration;”
or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007)). So long as a sentence is within the statutory
range, the trial court may impose it without regard to the existence of
aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. However, if
the trial court does find the existence of aggravating or mitigating factors, it
must give a statement of its reasons for selecting the sentence it imposes. Id. at
490. But the relative weight or value assignable to reasons properly found, or
those which should have been found, is not subject to review for abuse of
discretion, Gross, 22 N.E.3d at 869, and a trial court is under no obligation to
explain why a proposed mitigator does not exist or why the court found it to be
insignificant, Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans.
denied.
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[9] Bruce contends the trial court abused its discretion by failing to find his
remorse, the needs of his dependents, and the unlikelihood of his recidivism as
mitigating circumstances. Because Bruce’s sentence is less than the advisory
sentence, the trial court was under no obligation to consider mitigating or
aggravating factors at all. Anglemyer, 868 N.E.2d at 489. Having chosen to do
so, the trial court was “not obligated to accept as mitigating each of the
circumstances proffered by the defendant.” Green v. State, 65 N.E.3d 620, 636
(Ind. Ct. App. 2016), trans. denied. And the burden is on the defendant to
establish that the trial court overlooked mitigating evidence that is both
significant and clearly supported by the record. Id.[10] Bruce has failed to carry that burden. The trial court did find that Bruce’s
acceptance of responsibility was a mitigating factor. But the only evidence
Bruce cites in support of his alleged remorse4 is his testimony at sentencing that
he “hate[s] [him]self for it.” Appellant’s Br. at 8. William also testified that
Bruce was remorseful. However, the trial court was not required to give credit
or weight to that testimony, nor was it required to explain why it did not find
remorse to be a mitigating factor in this case. Sandleben, 22 N.E.3d at 796.
Moreover, a trial court’s determination regarding whether a defendant is
sincerely remorseful is “similar to a determination of credibility,” and
4
Bruce points to his lawyer’s statements that Bruce was “screaming, crying for help” and “holding
[Spencer], cradling her, trying to encourage her to hang on.” Appellant’s Br. at 8. However, his lawyer’s
statements are not evidence. And, although Bruce’s lawyer refers to “the testimony” on this point, Tr. at
167, Bruce does not provide us with a citation to such testimony and our review of the transcript has not
disclosed any such testimony.
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“[w]ithout evidence of some impermissible consideration by the court, we
accept its determination of credibility.” Pickens v. State, 767 N.E.2d 530, 535
(Ind. 2002).
[11] Bruce also failed to carry his burden of establishing that an undue hardship to
his dependents was a mitigating factor. Although William testified that Bruce
had provided financial support for his mother in the past, the record also shows
that Bruce’s one-year-old child is in the custody and care of William, and Bruce
is in arrearage on child support in the amount of $20,000 for his oldest child, Jr.
Moreover, a trial court does not abuse its discretion by failing to find hardship
to dependents as a mitigating factor “absent special circumstances showing that
the hardship to [the] dependents is ‘undue.’” Benefield v. State, 904 N.E.2d 239,
247 (Ind. Ct. App. 2009) (citation omitted), trans. denied. Bruce failed to show
any such “special circumstances.” The trial court did not abuse its discretion
when it failed to find the needs of Bruce’s dependents as a mitigating factor, nor
was it required to state its reason refusing to find that mitigating factor.
Sandleben, 22 N.E.3d at 796.
[12] And, Bruce has also failed to show that the court abused its discretion when it
did not find that his character and attitude make it unlikely that he would
commit another offense. Under Indiana law, likelihood of recidivism is one
circumstance which a trial court may5 consider as a mitigating factor. I.C. § 35-
5
Thus, Bruce errs when he contends that this statute provides that a court “must” consider any factors as
mitigating circumstances. I.C. § 35-38-1-7.1(b)(8).
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38-1-7.1(b)(8). Here, the trial court did consider that factor and specifically
rejected it as a mitigating circumstance. Tr. at 182-83. The trial court acted
well within its discretion when it found that mitigating factor to be absent.
Gross, 22 N.E.3d at 869.
[13] Finally, Bruce asserts that there was no evidence to support the trial court’s
conclusion that Bruce’s “violent and aggressive” character was an aggravating
factor. He points to his lack of criminal history of violence and his own
statement in his presentence investigation report that “he is someone who
always walks away from a fight.” Appellant’s App. at 94. However, the trial
court emphasized the violence of the crime in this case where Bruce, in fact, did
not “walk away from” the fight but rather “killed the mother of [his] child.” Tr.
at 180. The trial court noted that this violent crime was committed in the
presence of Bruce’s one-year-old child and another twelve-year-old child, the
latter of whom will remember the tragic events. Id. at 184. There was also
evidence that Bruce and Spencer had a volatile relationship and, unlike the
defendant in Long v. State, 865 N.E.2d 1031, 1036-37 (Ind. Ct. App. 2007), trans.
denied, cited by Bruce, Bruce did have a history of multiple interactions with
law enforcement over the years, including two misdemeanor convictions.
Appellant’s App. Vol. II at 89-91. The weight and credibility the trial court
chose to give this evidence is not subject to our review, Gross, 22 N.E.3d at 869,
and the court was within its discretion when it concluded that Bruce’s violent
and aggressive character was an aggravating circumstance.
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[14] We note that the trial court did make some contradictory statements in
sentencing, in that it noted that Bruce had “no violence in [his] record,” and
“no history of this kind of violence.” Tr. at 182. However, even if the trial
court did abuse its discretion in finding that Bruce had a violent and aggressive
character which served as an aggravating factor, we would not remand this case
for resentencing because, as we discuss below, Bruce’s sentence was not
inappropriate. See, e.g., Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App.
2013) (citations omitted) (holding that, even “if the trial court has abused its
discretion in sentencing a defendant, we need not remand for resentencing if we
conclude that the sentence imposed is not inappropriate”), trans. denied.
Appellate Rule 7(B)
[15] Bruce contends that his sentence is inappropriate in light of the nature of the
offense and his character. Article 7, Sections 4 and 6 of the Indiana
Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007) (alteration original). This appellate authority is implemented
through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule
7(B) requires the appellant to demonstrate that his sentence is inappropriate in
light of the nature of his offenses and his character. See Ind. Appellate Rule
7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess
the trial court’s recognition or non-recognition of aggravators and mitigators as
an initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
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However, “a defendant must persuade the appellate court that his or her
sentence has met th[e] inappropriateness standard of review.” Roush, 875
N.E.2d at 812 (alteration original).
[16] 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, 895 N.E.2d at 1224. 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
case.” Id. at 1224. The question is not whether another sentence is more
appropriate, but rather whether the sentence imposed is inappropriate. King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court
“prevail[s] 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).
[17] Bruce contends that the nature of the offense does not support the fifteen-year
sentence.6 Our analysis of the nature of the offense begins with the advisory
6
Bruce had requested placement in Community Corrections but, in placing him in the DOC, the trial court
stated that “any [suspended] or lesser sentence would depreciate the significance of this crime.” Tr. at 185.
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sentence, which was selected by the legislature as an appropriate sentence for
the crime committed. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App. 2017).
Here, Bruce’s sentence is two years less than the advisory sentence and it is the
same number of years he requested at sentencing; this weighs in favor of the
appropriateness of the sentence. Moreover, when considering the nature of the
offense, we look at the defendant’s actions in comparison to the elements of the
offense. Cannon v. State, 99 N.E.2d 274, 280 (Ind. Ct. App. 2018). Here, as the
trial court noted, Bruce not only killed the mother of his child but did so in the
presence of that young child and a second child. We cannot say Bruce’s
sentence was inappropriate in light of the nature of the offense.
[18] Bruce also maintains that the sentence is inappropriate in light of his character.
In support of that claim, he points to his lack of felony convictions and the
support of his friends and family. However, Bruce does have a criminal history.
His presentence investigation report shows that he has been arrested multiple
times over the years and he was convicted of carrying a handgun without a
license, as a Class A misdemeanor, and public intoxication, as a Class B
misdemeanor. Appellant’s App. Vol. II at 89-91. The report also shows that
Bruce owes $20,000 in child support and $9,000 in taxes. Id. at 93. Bruce also
admitted to drinking about a six-pack of beer every day since he was eighteen or
To the extent Bruce challenges his placement rather than the length of his sentence, he has not pointed to any
evidence that would convince us that his placement in the DOC is inappropriate. See e.g., Fonner v. State, 876
N.E.2d 340, 344 (Ind. Ct. App. 2007) (noting that a defendant challenging the placement of a sentence under
Rule 7(B) must convince us that the given placement is itself inappropriate, rather than show us that another
placement might be more appropriate).
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nineteen years old while he was in the military, but he has never completed a
treatment program. Id. at 93-94. And Bruce’s brother testified that he believed
Bruce’s alcohol consumption was related to Bruce’s past crimes and the cause
of the volatile relationship between Bruce and Spencer. These facts weigh in
favor of the appropriateness of the sentence.
[19] Given Bruce’s “volatile” relationship with the victim, the violent and severe
nature of the offense, the fact that it occurred in the presence of young children,
and the existence of Bruce’s criminal history of misdemeanor convictions and
problems with alcohol, we cannot say that his sentence—which is two years less
than the advisory sentence and is the same length Bruce requested at
sentencing—is inappropriate. Bruce has not pointed to evidence compelling
enough to overcome the deference we owe to the trial court. Stephenson, 29
N.E.3d at 122.
[20] Affirmed.
Mathias, J., and Bradford, J., concur.
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