Opinion
24A-CR-952
12-16-2024
Tavon T. Macklin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Megan Shipley Marion County Public Defender Agency Appellate Division Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Marie Kern, Judge Trial Court Cause No. 49D28-2102-MR-5908
ATTORNEY FOR APPELLANT Megan Shipley Marion County Public Defender Agency Appellate Division Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE.
Case Summary
[¶1] Tavon T. Macklin was convicted of Murder, a felony, Attempted Robbery Causing Serious Bodily Injury, as a Level 2 felony, Armed Robbery, as a Level 3 felony, and Unlawful Possession of a Firearm by a Serious Violent Felon ("SVF"), a Level 4 felony. He challenges his SVF conviction, his aggregate sentence, and the elevation of the Attempted Robbery offense from a Level 3 to a Level 2 felony. We reverse the SVF conviction and sentence and remand to the trial court with instructions to enter judgment of conviction on the Attempted Robbery conviction as a Level 3 felony and resentence Macklin accordingly.
I.C. §§ 35-42-5-1(a)(1), 35-41-5-1.
I.C. § 35-42-5-1(a).
I.C. § 35-47-4-5(c).
Issues
[¶2] Macklin presents three issues for review:
I. Whether sufficient evidence supports his SVF conviction;
II. Whether the trial court abused its discretion in the recognition of mitigating and aggravating circumstances; and
III. Whether his conviction for Attempted Robbery Causing Serious Bodily Injury must be reduced from a Level 2 to a Level 3 felony because the same injury elevating that offense was also the basis for the Murder conviction.
The State concedes error on each of the two issues upon which we are partially reversing the trial court's judgment.
Facts and Procedural History
[¶3] During the early morning hours of January 17, 2021, Macklin and John Ziegler armed themselves and traveled to a Marathon gas station on South Keystone Avenue in Indianapolis. In the Marathon parking lot, Justin White sat in his truck waiting for his friend, Jon Sylvia, to make a purchase.
[¶4] When Sylvia exited the building, Macklin confronted Sylvia, reached into Sylvia's pocket, and stole cigars and a cell phone. Ziegler approached the driver's side window whereupon Sylvia heard White tell Ziegler that he did not have any money. White exclaimed: "Jon, dive in," and Sylvia attempted to do so. (Tr. Vol. III, pg. 170.) White threw the vehicle into reverse as Sylvia was positioned toward the dashboard with his legs dangling outside the truck window. Sylvia immediately heard gunshots coming from outside the vehicle. White crashed his truck into a concrete light pole. When law enforcement officers arrived, White was found unresponsive. He was later pronounced deceased, having suffered two gunshot wounds that pierced his heart.
[¶5] On February 26, the State charged Macklin with Murder, Felony Murder,Attempted Robbery Causing Serious Bodily Injury, Armed Robbery, and the SVF offense. Macklin was tried before a jury on February 26 through 29, 2024, and was convicted as charged. Due to double jeopardy concerns, the trial court declined to enter judgment of conviction upon the Felony Murder count. On March 28, Macklin received concurrent sentences of sixty years for Murder, seventeen and one-half years for Attempted Robbery, and six years for the SVF offense. He also received a consecutive ten-year sentence for Armed Robbery, providing for an aggregate sentence of 70 years. Macklin now appeals.
I.C. § 35-42-1-1(2).
Discussion and Decision
Sufficiency of the Evidence - SVF
[¶6] Macklin first argues that insufficient evidence supports his SVF conviction. When reviewing a challenge to the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we view the evidence in a light most favorable to the judgment, examining whether a reasonable factfinder could have found the defendant guilty beyond a reasonable doubt. Id. So long as there is substantial evidence of probative value supporting each element of the offense, we will affirm. Lehman v. State, 203 N.E.3d 1097, 1104 (Ind.Ct.App. 2023), trans. denied.
[¶7] To convict Macklin of unlawful possession of a firearm by a serious violent felon, the State was required to prove that Macklin had been convicted of a serious violent felony and that he knowingly or intentionally possessed a firearm. See Ind. Code § 35-47-4-5(c). "Serious violent felon" means a person who has been convicted of committing a serious violent felony. I.C. § 35-47-4-5(a).
[¶8] The State presented evidence as to Macklin's possession of a firearm but declined to proceed with a second phase of trial in which to establish Macklin's status as a serious violent felon. Although the trial court granted the State's motion to recess the jury without a second phase, the court nonetheless entered judgment of conviction and a sentence upon the SVF count. Absent evidence from which the jury could conclude that Macklin was a serious violent felon, the SVF conviction is not supported by sufficient evidence. The SVF conviction and sentence must be vacated.
Sentencing Aggravators and Mitigators
[¶9] Upon his conviction for Murder, Macklin faced a sentencing range of forty-five years to sixty-five years, with an advisory sentence of fifty-five years. I.C. § 3550-2-3. Upon his conviction of a Level 2 felony, Macklin faced a sentencing range of ten to thirty years, with an advisory sentence of seventeen and one-half years. I.C. § 35-50-2-4.5. Upon his conviction of a Level 3 felony, Macklin faced a sentencing range of three to sixteen years, with nine years as the advisory sentence. I.C. § 35-50-2-5(b). His sentence for the Level 2 felony is the advisory sentence; his sixty-year sentence for Murder is five years above the advisory, and his sentence for the Level 3 felony is one year above the advisory.
[¶10] In sentencing Macklin, the trial court recognized several aggravators: Macklin had a criminal history consisting of two robberies in 2015; at the time of the offense, Macklin was participating in a community corrections program but had absconded from that program; there were multiple victims; the crimes were planned and premeditated; the harm was significant because White died; and Macklin committed another murder one month after murdering White. In mitigation, the trial court found that Macklin has a history of untreated mental health and substance abuse issues.
[¶11] Macklin contends that the trial court abused its discretion in its consideration of aggravating and mitigating circumstances. More specifically, Macklin claims that the trial court improperly recognized as an aggravator the significant harm to White on account of his death. Macklin, age twenty-one at the time of his offenses, additionally contends that the trial court "failed to address" his youth and the difficult circumstances of his upbringing. Appellant's Brief at 18.
[¶12] Sentencing decisions are within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. However, a trial court may be found to have abused its sentencing discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that explains reasons for imposing a sentence where the record does not support the reasons; (3) entering a sentencing statement that omits reasons that are clearly supported by the record and advanced for consideration; and (4) entering a sentencing statement in which the reasons given are improper as a matter of law. Id. at 490-91. The reasons or omissions of reasons given for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. at 491. The weight given to those reasons, i.e., to particular aggravators or mitigators, is not subject to appellate review. Id.
[¶13] According to Macklin, he presented significant evidence that brain development is not complete prior to age twenty-five and that a youthful individual is more inclined to risk-taking behaviors. At twenty-one, Macklin was relatively young, but he had demonstrated sophistication in his criminal endeavors - absconding from monitoring, procuring a weapon through social media, lying in wait for his victims, and escaping without immediate detection. Indeed, Macklin soon thereafter committed another murder of which he was convicted. And, while Macklin now asserts that he had a difficult childhood, he indicated in his presentence investigation interview that his childhood had been wonderful. We do not remand to a trial court for reconsideration of alleged mitigating factors that have a debatable nature, weight, and significance. Primmer v. State, 857 N.E.2d 11, 16 (Ind.Ct.App. 2006), trans. denied. Macklin has not shown an abuse of discretion in this regard.
[¶14] As for recognizing White's death as an aggravator, we agree with Macklin that this was improper. See Higginson v. State, 209 N.E.3d 15, 25 (Ind.Ct.App. 2023) (recognizing that a trial court's reiteration of an essential element of the offense (i.e., the loss of life), cannot be used as an aggravator). Relative to aggravators and mitigators:
[a] single aggravating circumstance may be sufficient to enhance a sentence.
When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. The question we must decide is whether we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator.Baumholser v. State, 62 N.E.3d 411, 417 (Ind.Ct.App. 2016) (internal quotation omitted), trans. denied. Here, we are confident that the trial court would have imposed the same sentence even if it had not considered the challenged aggravator. A remand for the trial court's reconsideration of aggravating and mitigating circumstances is unnecessary.
Double Jeopardy
[¶15] Macklin contends that common law principles of double jeopardy jurisprudence prohibit the State's reliance upon the same gunshots that were the means of murder to also elevate his Attempted Robbery Causing Serious Bodily Injury offense. In response, the State agrees that Macklin's Attempted Robbery conviction should be reduced from a Level 2 to a Level 3, but not based upon common law principles.
[¶16] A similar claim was made by the appellant in Morales v. State, 165 N.E.3d 1002 (Ind.Ct.App. 2021), trans. denied. Morales's double jeopardy claim rested upon his argument that the prosecution twice relied on his use of an accelerant and ignition source to convict him: first, to prove he committed arson and, second, to enhance his burglary conviction to a Level 2 felony by establishing he was armed with a deadly weapon. Id. at 1006. Acknowledging divided panels of this Court, on balance we rejected the contention that a common law double jeopardy analysis should be applied:
The Indiana Supreme Court ruled decades ago that enhancement of one offense based on the same act used to convict the defendant of a second offense violates common law double jeopardy principles. See, e.g., Kingery v. State, 659 N.E.2d 490, 496 (Ind. 1995); Moore v. State, 652 N.E.2d 53, 60 (Ind. 1995). But those decisions predate the Indiana Supreme Court's decision in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), which dramatically altered our substantive double jeopardy analysis.
Morales suggests Wadle preserved common law double jeopardy claims. Panels of this Court have split on this issue. Some have found Wadle does not circumscribe all common law double jeopardy claims. See, e.g., Rowland v. State, 155 N.E.3d 637, 640 (Ind.Ct.App. 2020) (noting Wadle left common law protection undisturbed); Shepherd v. State, 155 N.E.3d 1227, 1240 (Ind.Ct.App. 2020) (ruling "Wadle left Indiana's common law double jeopardy jurisprudence intact"), trans. denied.
Others have found Wadle engulfed all double jeopardy claims, including those previously arising under the common law. See, e.g., Woodcock v. State, 163 N.E.3d 863, 871-72 (Ind.Ct.App. 2021) (ruling "the common law rules are incorporated into the Wadle analysis and no longer exist independently"); Jones v. State, 159 N.E.3d 55, 61 (Ind.Ct.App. 2020) (stating Wadle "swallowed statutory and common law to create one unified framework for substantive double jeopardy claims"), trans. denied; Diaz v. State, 158 N.E.3d 363, 368 (Ind.Ct.App. 2020) (noting Wadle "did away with the 'old law' on claims of substantive double jeopardy, including ... all common-law rules"); Hill v. State, 157 N.E.3d 1225, 1229 (Ind.Ct.App. 2020) (holding common law protections "did not survive Wadle"). We subscribe to the latter view for the reasons expressed in Jones. 159 N.E.3d at 61-62. Therefore, we analyze Morales's double jeopardy claim under the analysis required by Wadle.Id. at 1006-07. We likewise analyze Macklin's double jeopardy claim under the Wadle analysis.
[¶17] Article 1, Section 14 of the Indiana Constitution bars procedural double jeopardy. A.W. v. State, 229 N.E.3d 1060, 1065 (Ind. 2024). The "protective scope" of this Article is restricted to "successive prosecutions for the same offense." Wadle, 151 N.E.3d at 246. Substantive double jeopardy refers to claims related to multiple convictions for the same offense in a single proceeding; these are grounded in statutory law. A.W., 229 N.E.3d at 1065. The latter, which is the type of claim herein, are analyzed under the three-step approach of Wadle, as recently explained by our Indiana Supreme Court in A.W.:
1. Interpret statutory language
We start with the statutory language of the offenses. "If the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication, the court's inquiry comes to an end and there is no violation of substantive double jeopardy." [Wadle, 151 N.E.3d] at 248 (footnote omitted).
2. Apply included-offense statute
If the statutory language does not clearly permit multiple punishments, "a court must then apply our included-offense statutes to determine statutory intent." Id. (emphasis added) (citing Collins v. State, 645 N.E.2d 1089, 1093 (Ind.Ct.App. 1995) (highlighting that our included-offense statute helps courts ascertain "legislative intent"), aff'd in part, vacated in part on other grounds, 659 N.E.2d 509 (Ind. 1995)). An "included offense," as defined by the General Assembly, is an offense
(1) that "is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged,"
(2) that "consists of an attempt to commit the offense charged or an offense otherwise included therein," or
(3) that "differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission."
I.C. § 35-31.5-2-168. "If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy" and the analysis ends - full stop. Wadle, 151
N.E.3d at 248. But if one offense is included in the other, the court must proceed to Step 3. See id.....
Wadle defined an "inherently included" offense as one that "may be established by proof of the same material elements or less than all the material elements defining the crime charged," or if "the only feature distinguishing the two offenses is that a lesser culpability is required to establish the commission of the lesser offense." Id. at 251 n.30 (quoting Young v. State, 30 N.E.3d 719, 724 (Ind. 2015)). Wadle thus approved subsection (1) and the last part of subsection (3) of the included-offense statute to be within the inherently included inquiry. Id. Today, we clarify that this evaluation should be made under all three subsections. Thus, to constitute an inherently included offense, it must fit within one of those enumerated subsections. I.C. § 35-31.5-2-168.
*** 3. Examine the facts underlying the statutory offenses
We have now arrived at the final step in Wadle. If a court has found that one offense is included in the other - either inherently or as charged - the court must then (and only then) "examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial." Wadle, 151 N.E.3d at 249 (emphasis added) (citing Bigler v. State, 602 N.E.2d 509, 521 (Ind.Ct.App. 1992), trans. denied).
Step 3 functions as a cabined version of Richardson's actual evidence test, and it serves an important, practical role in our double jeopardy analysis: to facilitate the distinction between what would otherwise be two of the "same" offenses. See id. at 249 n.27. So, at this final step, a court may only then probe the underlying facts - as presented in the charging instrument and adduced at trial - to determine whether a defendant's actions
were "so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." Id. at 249. If the underlying facts reveal the two offenses are indeed "separate," there is no Wadle violation, "even if one offense is, by definition, 'included' in the other." Id. That said, if the "facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than cumulative) sanctions." Id.A.W., 229 N.E.3d at 1066-67, 1071.
[¶18] The elements of Murder are: (1) knowingly or intentionally (2) killing another human being. I.C. § 35-42-1-1(1). The elements of Robbery resulting in serious bodily injury are: (1) knowingly or intentionally (2) taking property from another person, or from the presence of another person (3) by using or threatening the use of force or by putting any person in fear (4) which results in serious bodily injury. I.C. § 35-42-5-1(a)(1). "A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime." I.C. § 35-41-5-1.
[¶19] The statutory language at issue does not clearly permit multiple punishments. Proceeding to the next step, and applying included-offense analysis, the crimes of Murder and Robbery each include an element the other does not - thus, one offense is not inherently included in the other. We next look to the charging Informations for factual inclusion - the State alleged that Macklin "did knowingly kill another human being, to-wit: Justin White," (App. Vol. II, pg. 46.) and alleged that Macklin "did knowingly take property from another person while using or threatening the use of force, or by placing another person in fear, to wit: brandishing a firearm in the presence of Justin White and/or shooting Justin White with a firearm, said act resulting in serious bodily injury to Justin White; to wit: gunshot wounds." (Id. at 46-47.) The factual basis for Murder is not identified in the Information charging Murder and, as a result, there is ambiguity as to whether the serious bodily injury that White sustained from gunshot wounds is the same injury causing his death.
[¶20] In the face of this ambiguity, we proceed to the final step, "prob[ing] the underlying facts" including those "adduced at trial." A.W., 229 N.E.3d at 1071. The State presented expert testimony to establish that White's death was caused by two gunshot wounds, either of which was considered a fatal shot. The evidence discloses that the gunshot wounds were inflicted during the attempted robbery. As such, there is no distinction between the harm supporting the Murder conviction and the harm elevating the Attempted Robbery offense. The Attempted Robbery conviction must be reduced from a Level 2 to a Level 3 felony offense. See Hines v. State, 30 N.E.3d 1216, 1221 (Ind. 2015) (reiterating that a double jeopardy violation is not remedied by the practical effect of concurrent sentences).
Conclusion
[¶21] We reverse the SVF conviction due to insufficient evidence. We remand to the trial court with instructions to vacate that conviction and corresponding sentence. We additionally instruct the trial court to reduce Macklin's Level 2 felony to a Level 3 felony and resentence him accordingly. Macklin's Murder conviction is affirmed.
[¶22] Affirmed in part, reversed in part, and remanded with instructions.
Bradford, J., and Foley, J., concur.