McCain v. State, No. 20S-CR-281, __ N.E.3d __ (Ind., June 30, 2020).

Massa, J.

Marcus Lee McCain was sentenced to forty-five years in prison for killing Marcel Harris in a crowded Gary, Indiana fast-food restaurant. McCain contends that the trial judge—who stated that the jury’s voluntary manslaughter verdict was “a gift”—impermissibly increased McCain’s sentence based on his beliefs about the case. We disagree. First, we find that the trial court did not abuse its discretion in imposing the sentence. Second, because we determine under Indiana Appellate Rule 7(B) that the sentence is not inappropriate in light of the nature of the offense and McCain’s character, we uphold the sentence in its entirety.


I. The trial court did not abuse its discretion when sentencing McCain.


At issue here is whether the trial court, when imposing its sentence, relied on a legally “improper aggravator based in its disagreement with the jury’s verdict.” Appellant’s Br. in Opp. to Trans. at 8. Specifically, McCain argues the trial judge’s comments—indicating that the manslaughter verdict was “a gift” and that the evidence presented “the cleanest cut video I have ever seen of my impression of murder”—are evidence that the judge improperly imposed his own beliefs during sentencing. Tr. Vol. 7, p.187; Tr. Vol. 8, p.51. McCain argues that this belief was formally manifested in an aggravating factor which referred to the “cold-blooded and callous [nature of the killing] despite the fact that the defendant was convicted of Voluntary Manslaughter.” Appellant’s App. Vol. 3, p.143. Because voluntary manslaughter requires the jury find the killing was committed in “sudden heat,” see Ind. Code § 35-42-1-3, McCain contends that this aggravator would always be antithetical to the nature of the offense.


Altogether, these cases illustrate that examining a judge’s sentencing decision for impermissible motives is a highly fact specific inquiry. Applying the factors explained above, we determine that the judge’s comments here, though coming very close to the line, are insufficient to demonstrate that the judge abused his discretion when viewed in the context of the record as a whole. While the sentencing judge made several comments on the record that clearly show he personally disagreed with the verdict, a judge “is not prohibited from expressing his personal disagreement,” ), Hamman, 504 N.E.2d at 278, though for obvious reasons we highly discourage that practice. The record contains several other evidentiary factors that demonstrate the trial judge did not enhance the sentence based on his disagreement with the jury verdict.

First, unlike in Gambill, Hammons, and Hamman, the judge’s initial sentencing decision included a careful, detailed discussion of ten aggravating factors and six potential mitigating factors (ultimately accepting only four), both at the hearing and in a detailed sentencing order. See Gambill, 436 N.E.2d at 305 (listed aggravators contained merely “conclusory language”); Hammons, 493 N.E.2d at 1251, 1253 (judge’s first sentencing order failed to provide aggravators); Hamman, 504 N.E.2d at 279 (record did “not disclose specific conclusions” justifying the sentence enhancement). While not completely dispositive, the judge’s detailed attempt at showing his work goes a long way in demonstrating that his personal feelings were not driving the decision.

Second, like in Wilson, and in contrast to Gambill, Hammons, and Hamman, McCain did not receive the maximum possible sentence for his crimes, and the sentence is substantially lower than what he would have received for murder. Compare Wilson, 458 N.E.2d at 654 (trial court “add[ed] five years to the basic sentence” for voluntary manslaughter), with Gambill, 436 N.E.2d at 305 (imposing the then-maximum sentence), Hammons, 493 N.E.2d at 1251 (same), and Hamman, 504 N.E.2d at 277 (same). With his criminal record, McCain faced an advisory sentence of at least twenty-two-and-a-half years for his convictions before any of the aggravating and mitigating circumstances were considered. See I.C. §§ 35- 50-2-4.5 (advisory sentence for voluntary manslaughter is seventeen-and-a-half years), -11(g) (the court could add at least five years for the firearm enhancement). While McCain’s counsel took issue with how some of these aggravators were broken out and weighed in the trial court’s analysis, he essentially conceded that all but one of the aggravators had a valid factual basis, so a heightened sentence should be expected. The forty-five-year sentence the trial court imposed is five years short of the maximum. See I.C. §§ 35-50-2-4.5 (maximum sentence for voluntary manslaughter is thirty years), -11(g) (the court could add up to twenty years for the firearm enhancement). It is also significantly more lenient, given the number of aggravating factors, than what McCain would have likely received if he had been convicted of both the firearm enhancement, see I.C. § 35-50-2- 11(g) (between “five years and twenty years”), and murder, see I.C. § 35- 50-2-3 (between forty-five and sixty-five years with an advisory sentence of fifty-five years). The forty-five-year sentence length does not evince an improper motive.

Third, again like in Wilson, the trial judge made statements—both at the hearing and in the sentencing document—clarifying he would filter out his personal feelings. See Wilson, 458 N.E.2d at 655. Appellant’s App. Vol. 3, p.144 (“The Court acknowledges that the jury found the defendant guilty of Voluntary Manslaughter. To be clear, the Court is not assessing this sentencing as that of a murder case or using the factors of a murder to elevate the sentence of Voluntary Manslaughter.”) (emphasis added). While this disclaimer is not a magic phrase inoculating the trial court from scrutiny, it weighs against a finding of bias. It also distinguishes this case from cases like Hammons, where the judge based his first sentencing decision explicitly on “ample evidence . . . justify[ing] a finding on the murder count itself.” 493 N.E.2d at 1251.

Finally, we need not decide the validity of the disputed aggravator— citing the “cold-blooded and callous” nature of the killing—because we find any error stemming from its inclusion was harmless. Appellant’s App. Vol. 3, p.143 The thrust of this disputed aggravator is captured, less controversially, in the preceding aggravating circumstance finding the heinous nature of the shooting to be significant. See Appellant’s App. Vol. 3, p.142. (“The victim was shot at point-blank range with the gun placed to the victim’s temple.”). Both these aggravators represent a legitimate view that the nature and circumstance of this killing differentiates its heinousness from other heat-of-passion homicides. Our precedent is clear: “[e]ven when a trial court improperly applies an aggravator, a sentence enhancement may be upheld if other valid aggravators exist.” Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002) (citation omitted). When an improper aggravator is used, we remand for resentencing only “if we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances.” McCann, 749 N.E.2d at 1121 (citations omitted). Given the similarity between these two aggravators, remand is unnecessary.



Because the trial court’s comments disagreeing with the jury’s verdict were insufficient to taint the sentencing decision, and the sentence was not inappropriate given the nature of the crime and McCain’s demonstrated character, we affirm the trial court’s judgement in its entirety, including the forty-five-year sentence.

Rush, C.J., and David, Slaughter, and Goff, JJ., concur


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