MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jun 10 2015, 9:15 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael G. Moore Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Jonathan R. Sichtermann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Burnett, June 10, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A02-1409-CR-674
v. Appeal from the Marion Superior
Court
Cause No. 49G04-1305-MR-30562
State of Indiana,
Appellee-Plaintiff. The Honorable Lisa Borges, Judge
Barnes, Judge.
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Case Summary
[1] David Burnett appeals his sixty-year sentence for murder and Class A
misdemeanor carrying a handgun without a license. We affirm.
Issue
[2] Burnett raises one issue, which we restate as whether his sixty-year sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
Facts
[3] On May 6, 2013, Tyron Woods and Rayshawn Tunstill had an argument near
the Hearts’ Landing apartment complex in Indianapolis. Tunstill left but later
returned with sixteen-year-old Burnett and Burnett’s older brother, Robert
Tibbs. Woods and Tunstill prepared to fight, and Woods handed his gun to his
girlfriend, Leesha Taylor. Tibbs then pointed his gun at Taylor, and Burnett
took the gun from Taylor. Woods and Tibbs also struggled for Tibbs’s gun, but
Woods was unable to take it. Woods and Taylor then tried to flee, but Burnett
shot Woods in the back. Woods and Taylor reached Taylor’s apartment, and
Burnett and Tibbs followed and continued shooting at them. Woods died from
his injuries.
[4] The State charged Burnett with murder and Class A misdemeanor carrying a
handgun without a license. A jury found Burnett guilty, and the trial court
sentenced him to sixty years for the murder conviction and a concurrent
sentence of one year for the handgun conviction. Burnett now appeals.
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Analysis
[5] Burnett argues that his sixty-year sentence is inappropriate under Indiana
Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, we find that the sentence is inappropriate in light of the nature of the
offenses and the character of the offender. When considering whether a
sentence is inappropriate, we need not be “extremely” deferential to a trial
court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). Still, we must give due consideration to that decision. Id. We also
understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. Under this rule, the burden is on the defendant to
persuade the appellate court that his or her sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[6] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. When reviewing the appropriateness of
a sentence under Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
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whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[7] A review of the nature of the offense reveals that sixteen-year-old Burnett shot
Woods, who was unarmed, in the back as a result of Woods’s altercation with
one of Burnett’s friends. After shooting him, Burnett pursued Woods and his
girlfriend into an apartment and fired several more shots. On appeal, Burnett
argues that the offense was not planned and was merely a “fight gone out of
control.” Appellant’s Br. p. 5. We disagree and conclude that the trial court
properly found that Burnett and his brother had “inserted themselves into a
situation where they had no business and no right to be.” Tr. p. 389-90.
[8] As for Burnett’s character, we note that, despite his young age, he has a
substantial juvenile history. He was arrested eight times as a juvenile, resulting
in five true findings. Burnett has three true findings for criminal trespass, one
for battery resulting in serious bodily injury, and one for resisting law
enforcement. Burnett had numerous probation violations and several urine
drug screens positive for marijuana. Sergeant Ed Bruce of the Indianapolis
Metropolitan Police Department testified at Burnett’s sentencing hearing that
Burnett was a member of the Blockburner gang.1 On appeal, Burnett argues
that he was young and was under the influence of his older brother. The trial
1
Burnett argues that the evidence of gang activity was “stale and without proper foundation.” Appellant’s
Br. p. 6. However, Burnett does not challenge the admissibility of the evidence concerning his gang activity.
Consequently, we may consider it in our analysis.
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court took Burnett’s age into consideration, and we see no evidence in the
record that Burnett’s actions were controlled by his brother.
[9] Given Burnett’s juvenile history and the senseless nature of his crimes, we
conclude that the sixty-year sentence imposed by the trial court is not
inappropriate.
Conclusion
[10] The sentence imposed by the trial court is not inappropriate in light of the
nature of the offense and the character of the offender. We affirm.
[11] Affirmed.
Riley, J., and Bailey, J., concur.
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