FILED
Jun 18 2018, 10:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcus T. Threatt, Jr., June 18, 2018
Appellant-Defendant, Court of Appeals Case No.
22A01-1710-CR-2402
v. Appeal from the Floyd Superior
Court.
The Honorable Susan L. Orth, Judge.
State of Indiana, Trial Court Cause No.
Appellee-Plaintiff. 22D01-1512-MR-2296
Shepard, Senior Judge
Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018 Page 1 of 5
[1] Appellant Marcus Threatt was sentenced to twenty years with two and one-half
1
years suspended upon his conviction of robbery, a Level 2 felony. Concluding
the sentence imposed by the trial court was not inappropriate, we affirm.
Facts and Procedural History
[2] In December 2015, Threatt arranged that he and Keontez Malone would
purchase marijuana from Threatt’s friend Charlie Fischbach. Threatt and
Malone planned to take the marijuana without paying for it. When the three
men met for the transaction, Fischbach resisted and Malone shot him.
Fischbach died.
2 3
[3] Threatt was charged with murder and dealing in marijuana, a Level 6 felony.
In an open plea, he pleaded guilty to a reduced charge of robbery as a Level 2
felony, and the State agreed to dismiss the marijuana charge. The trial court
sentenced Threatt to twenty years with two and one-half years suspended to
probation. He now appeals.
Issue
[4] Threatt presents one issue for our review: whether his sentence is
inappropriate.
1
Ind. Code § 35-42-5-1 (2014).
2
Ind. Code § 35-42-1-1(2) (2014).
3
Ind. Code § 35-48-4-10(c)(2)(A) (2014).
Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018 Page 2 of 5
Discussion and Decision
[5] Although a trial court may have acted within its lawful discretion in imposing a
sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of sentences. Indiana Appellate
Rule 7(B) provides that we may revise a sentence if, after due consideration of
the trial court’s decision, we determine that the sentence is inappropriate in
light of the nature of the offense and the character of the offender. Thompson v.
State, 5 N.E.3d 383 (Ind. Ct. App. 2014). However, “we must and should
exercise deference to a trial court’s sentencing decision, both because Rule 7(B)
requires us to give ‘due consideration’ to that decision and because we
understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.
2007).
[6] The principal role of appellate review under Rule 7(B) is to attempt to leaven
the outliers, not to achieve a perceived “correct” result in each case. Garner v.
State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). In other words, the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate. King v. State, 894
N.E.2d 265 (Ind. Ct. App. 2008). The defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018 Page 3 of 5
[7] To assess such a claim, we look first to the statutory range established for the
class of the offense. Here, the offense is a Level 2 felony, for which the advisory
sentence is seventeen and one-half years, with a minimum of ten and a
maximum of thirty years. Ind. Code § 35-50-2-4.5 (2014). Although Threatt
was sentenced to twenty years, the executed portion of his sentence is equal to
the advisory term.
[8] Next, we look to the nature of the offense and the character of the offender. As
to the current offense, this was a drug deal gone bad. Threatt and Malone
planned to grab the marijuana and run, but in the process a young man was
killed.
[9] As for the character of the offender, we observe that Threatt was employed full
time at the time of his arrest and had been for several months. However, while
he claims to have been a law-abiding citizen as an adult, he admitted that he
used marijuana every day. Further, Threatt arranged this deal and, in doing so,
facilitated the death of a childhood friend. At sentencing, the trial judge found
noteworthy the fact that Threatt’s juvenile probation was terminated as
unsuccessful.
[10] In arguing that his sentence should be reduced, Threatt claims that his twenty-
year sentence is too high given that Malone, the shooter, was sentenced to
thirty years. We may compare sentences of co-defendants convicted of the
same or similar crimes, but we are not required to do so. Clark v. State, 26
N.E.3d 615 (Ind. Ct. App. 2014). Regardless of who pulled the trigger in this
Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018 Page 4 of 5
case, the result of Threatt’s criminal endeavor to obtain marijuana was the
murder of a young father. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)
(holding that courts are not required to “turn a blind eye to the facts of the
incident that brought the defendant before them” and may consider as
aggravating circumstances facts that would have supported charges dismissed
under the plea). Yet, the State agreed to allow Threatt to plead to Level 2
felony robbery, for which he received a sentence of twenty years, with only
seventeen and one-half years executed. This is considerably less than the thirty
years Malone received for his conviction of voluntary manslaughter. Even if
the shooting was completely unexpected, as Threatt claims, he arranged the
deal and, at the very least, set up his friend to be robbed, surely understanding
that violence was a possibility in such a drug deal/robbery.
Conclusion
[11] We conclude Threatt’s sentence is not inappropriate given the nature of the
offense and his character.
[12] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 22A01-1710-CR-2402 | June 18, 2018 Page 5 of 5