Dec 10 2014, 10:09 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA M. JOHNSON GREGORY F. ZOELLER
Brownsburg, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DONTA LEGG, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1404-CR-279
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
Cause No. 49G03-1310-MR-65942
December 10, 2014
OPINION–FOR PUBLICATION
BAKER, Judge
In this case, a sixteen-year-old was tried as an adult and convicted of murder. The
defendant requested to be sentenced under the alternative sentencing scheme for juvenile
offenders, but the trial court denied the request and sentenced him as an adult. As an
issue of first impression, we find that the trial court did not abuse its discretion in finding
that the nature of the offense and the character of the offender rendered sentencing under
the alternative sentencing scheme unsuitable in this case.
Donta Legg appeals the sentence imposed by the trial court after Legg was
convicted of Murder,1 a felony, and Carrying a Handgun Without a License, 2 a class A
misdemeanor. Legg argues that the trial court should have sentenced him under the
alternative sentencing scheme applicable to juvenile offenders sentenced as adults and
that the sentence is inappropriate in light of the nature of the offense and his character.
Finding no error, we affirm.
FACTS
The victim, nineteen-year-old Darren Kirk, lived with his mother, Trisha Kirk, and
his two brothers, two-year-old A.K. and seventeen-year-old M.K. On September 20,
2013, someone knocked on their door at approximately 11:00 p.m. Trisha answered the
door and saw sixteen-year-old Legg standing on the front porch. Legg was there to see
Darren. She called for Darren, who went outside with Legg.
1
Ind. Code § 35-42-1-1.
2
Ind. Code § 35-47-2-1.
2
Trisha remained inside until she heard a commotion on the porch. She observed
Darren wrestling with a man, who was never identified, and Legg standing next to the
porch. M.K. also heard the commotion, ran out onto the porch, and tried to pull the
unidentified man off of Darren.
Darren yelled, “He’s got a gun. He’s got a gun.” Tr. p. 67. The unidentified man
pulled a gun out of his waistband and handed it to Legg, instructing Legg to “Pop that
ni***r.” Id. at 68. Legg took one or two steps back, raised the gun, and shot Darren
once. M.K. stepped back into the house and Darren followed him. Darren stumbled, fell
to the ground, and died. Legg fled the scene. On November 3, 2013, the State charged
Legg as an adult with murder and class A misdemeanor carrying a handgun without a
license. A jury trial was held on February 3 and 4, 2014, and a jury found Legg guilty as
charged.
The trial court held a sentencing hearing on March 27, 2014. The trial court found
the following aggravating factors: Legg’s history as a juvenile offender, his failure to
complete probation and a suspended commitment related to his last case, his marijuana
abuse, the nature and circumstances of the offense, and the fact that he committed the
offense in the presence of children. The trial court found as mitigating circumstances
Legg’s age, upbringing, and issues with schooling. After weighing aggravators and
mitigators, the trial court concluded that they balanced and imposed concurrent executed
terms of fifty-five years for murder and one year for carrying a handgun without a
3
license. The trial court declined to sentence Legg under the alternative sentencing
scheme for juveniles tried as adults. Legg now appeals.
DISCUSSION AND DECISION
Legg argues that the fifty-five-year sentence imposed by the trial court is
inappropriate in light of the nature of the offenses and his character. Indiana Appellate
Rule 7(B) provides that this Court may revise a sentence if it is inappropriate in light of
the nature of the offense and the character of the offender. We must “conduct [this]
review with substantial deference and give ‘due consideration’ to the trial court’s
decision—since the ‘principal role of [our] review is to attempt to leaven the outliers,’
and not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274,
1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))
(internal citations omitted).
An adult who is convicted of murder is eligible for a sentence between forty-five
and sixty-five years, with an advisory term of fifty-five years. Ind. Code § 35-50-2-3.
Here, Legg was sentenced to the advisory term.
The General Assembly has also provided an alternative sentencing scheme for
juveniles who are waived into adult court and convicted as adults. Indiana Code section
31-30-4-2 provides as follows:
(a) Subject to subsection (c), if:
(1) an offender is:
(A) less than eighteen (18) years of age;
4
(B) waived to a court with criminal jurisdiction under IC 31-30-3
because the offender committed an act that would be a felony
if committed by an adult; and
(C) convicted of committing the felony or enters a plea of guilty
to committing the felony; or
(2) an offender is:
(A) less than eighteen (18) years of age;
(B) charged with a felony over which a juvenile court does not
have jurisdiction under IC 31-30-1-4; and
(C) convicted of committing the felony by a court with criminal
jurisdiction or enters a plea of guilty to committing the felony
with the court;
the court may, upon its own motion, a motion of the prosecuting attorney,
or a motion of the offender’s legal representative, impose a sentence upon
the conviction of the offender under this chapter.
(b) If a court elects to impose a sentence upon conviction of an offender under
subsection (a) and, before the offender is sentenced, the department of
correction determines that there is space available for the offender in a
juvenile facility of the division of youth services of the department, the
sentencing court may:
(1) impose an appropriate criminal sentence on the offender under IC
35-50-2;
(2) suspend the criminal sentence imposed, notwithstanding IC 35-50-2-
2 (before its repeal), IC 35-50-2-2.1, and IC 35-50-2-2.2;
(3) order the offender to be placed into the custody of the department of
correction to be placed in the juvenile facility of the division of
youth services; and
(4) provide that the successful completion of the placement of the
offender in the juvenile facility is a condition of the suspended
criminal sentence.
(c) The court may not impose a sentence on an offender under subsection (a)
until:
(1) the prosecuting attorney has notified the victim of the felony of the
possible imposition of a sentence on the offender under this chapter;
and
(2) either:
(A) the probation department of the court has conducted a
presentence investigation concerning the offender and
reported its findings to the court; or
5
(B) the department of correction has conducted a diagnostic
evaluation of the offender and reported its findings to the
court.
(Emphases added). For reasons explained below, the trial court determined that
application of the alternative sentencing scheme is not appropriate in this case.
Turning to the nature of Legg’s offenses, we observe that he went to the residence
of Darren, a friend, late at night, knocked on the door, and asked Darren to come outside.
Legg knew that there were two juveniles inside the house. Legg’s accomplice began
physically fighting with Darren and eventually handed a gun to Legg and instructed him
to shoot Darren. Legg complied. There was a seventeen-year-old present on the porch
and a two-year-old present in the house when he shot the weapon. Legg has continued to
refuse to identify his accomplice. When questioned by the police, Legg repeatedly lied
about the events of that night.
As to Legg’s character, we note, as did the trial court, his young age at the time he
committed these offenses. But we also note that at the age of sixteen, he had already
accumulated four true findings of juvenile delinquency, two of which would have been
felonies had he been convicted as an adult. He had also already failed probation and a
suspended commitment. While Legg had a challenging upbringing, the record reveals
that he had multiple extended family members in his life who loved and cared for him.
Legg had a learning disability, but the record does not reflect a nexus between that
disability and his propensity for breaking the law. And while Legg struggled in school,
part of those struggles stem from his failure to attend on a regular basis. He has been
6
suspended for failing to attend school and admitted that he “didn’t work often” on his
school assignments. Presentence Investigation Report p. 8.
Having considered all of the aggravators and mitigators in significant depth, the
trial court found as follows: “considering all of those things, both the mitigating
circumstances and the aggravating circumstances and your character, conduct, and
condition as you sit here today, the Court does not believe that sentencing you under the
alternative sentencing statute for juveniles is appropriate in your case.” Tr. p. 455. As
noted above, the General Assembly has crafted the alternative sentencing statute as a
discretionary tool for trial courts. When the alternative sentencing statute applies, as it
does here, a trial court may choose to apply it, the necessary corollary being that it may
also choose not to apply it.
This appears to be a case of first impression, as we have been unable to find other
cases interpreting the alternative sentencing statute. The statute itself offers no guidance
regarding when the alternative sentencing scheme should be implemented. It is well
established that the purpose of the juvenile justice system is rehabilitation so that the
juvenile will not become a criminal as an adult. C.B. v. State, 988 N.E.2d 379, 383 (Ind.
Ct. App. 2013). Under certain statutorily delineated circumstances, the juvenile court
may waive jurisdiction over a juvenile offender:
Upon motion of the prosecuting attorney and after full investigation and
hearing, the juvenile court may waive jurisdiction if it finds that:
(1) the child is charged with an act that is a felony:
(A) that is heinous or aggravated, with greater weight given to
acts against the person than to acts against property; or
7
(B) that is a part of a repetitive pattern of delinquent acts, even
though less serious;
(2) the child was at least fourteen (14) years of age when the act charged
was allegedly committed;
(3) there is probable cause to believe that the child committed the act;
(4) the child is beyond rehabilitation under the juvenile justice system;
and
(5) it is in the best interests of the safety and welfare of the community
that the child stand trial as an adult.
Ind. Code § 31-30-3-2. The General Assembly has not provided factors such as these to
determine when the alternative sentencing scheme should be implemented, but we find
these factors to be instructive. We do not hold that trial courts are required to consider
these factors, nor do we hold that the State is required to prove that these factors are in
play to warrant the implementation of the alternative sentencing scheme, but these are
good examples of the kinds of criteria a trial court may consider in reaching its decision
on this issue.
In this case, the trial court explained that the reason it chose not to apply the
alternative sentencing scheme was based on the nature of Legg’s offense as well as his
character. The trial court explicitly found that Legg was charged with a heinous act—
murder, in front of a juvenile—and that this act was part of a repetitive pattern of other
delinquent acts. Legg was sixteen years old when he committed the act, and he was
convicted by a jury. The trial court implicitly found, based upon these facts, that Legg is
beyond rehabilitation under the juvenile justice system. Likewise, the trial court
implicitly found that the safety and welfare of the community dictate sentencing as an
8
adult. Based upon the facts and circumstances of this case, we find that the trial court did
not abuse its discretion by making this decision.
We acknowledge that Legg is a young offender. We also acknowledge that Legg
has been faced with many obstacles in his short life. But we must also consider the
nature of the crime he committed here. He took the life of another person—a friend—in
the presence of that person’s family. He has already shown a propensity for skipping
school and breaking the law. Under these circumstances, we do not think that the
advisory term of fifty-five years is inappropriate in light of the nature of the offenses and
Legg’s character. Cf. Fuller v. State, 9 N.E.3d 653, 659 (Ind. 2014) (revising a 150-year
sentence for a fifteen-year-old who had been convicted of two counts of murder and one
count of robbery to concurrent, maximum terms of 65 years for the murder convictions
and to a consecutive, enhanced 20-year term for robbery); Brown v. State, 10 N.E.3d 1, 8
(Ind. 2014) (revising a 150-year sentence for a sixteen-year-old who had been convicted
of two counts of murder and one count of robbery to concurrent, enhanced terms of 60
years for the murder convictions and a consecutive, enhanced 20-year term for robbery).
The judgment of the trial court is affirmed.
MAY, J., and BARNES, J., concur.
9