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Pursuant to Ind.Appellate Rule 65(D), this
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:
KEVIN L. LIKES
Likes Law Office, LLC
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Jul 26 2011, 9:30 am
COURT OF APPEALS OF INDIANA
MATTHU R. SANDERS,
STATE OF INDIANA,
APPEAL FROM THE DEKALB SUPERIOR COURT I
The Honorable Kevin P. Wallace, Judge
Cause No. 17D01-0905-MR-2
July 26, 2011
MEMORANDUM DECISION – NOT FOR PUBLICATION
of the supreme court,
court of appeals and
STATEMENT OF THE CASE
Appellant-Defendant, Matthu R. Sanders (Sanders), appeals his conviction and
sentence for robbery while armed with a deadly weapon, a Class A felony, Ind. Code § 3542-5-1.
Sanders raises two issues on appeal, which we restate as follows:
(1) Whether the trial court failed to establish a factual basis to support Sanders‟
guilty plea; and
(2) Whether the trial court‟s sentence was appropriate in light of the nature of the
offense and his character.
FACTS AND PROCEDURAL HISTORY
Sanders was out on bond for a pending charge when he violated the terms of his bond
by traveling to Florida for a couple of months. While in Florida, he met Jeffrey Cain (Cain),
a man with a “tough reputation.” (Transcript p. 77). In early May of 2009, Sanders brought
Cain back with him to Indiana and they lived with Sanders‟ friend, Matthew Nelson
(Nelson), for a week. Cain then decided to return to Florida but lacked the money to do so.
Sanders, along with Cain and Sanders‟ other friend, Daniel Hess (Hess), discussed robbing
someone to get money for Cain. Hess told Cain about Raymond Morrow (Morrow), who
owned a flea market in DeKalb County, Indiana. He suggested that Morrow always carried a
significant amount of money but also carried a gun. In response, Cain said that he would
“just have to get the drop on him.” (Tr. p. 79).
Following their conversation, Sanders asked Nelson for a “throw away gun” that Cain
could use to rob Morrow, which Nelson provided on the condition that Sanders would give
him a snow plow if Cain did not return the gun. (Tr. p. 78). Sanders also told Cain how to
get to Morrow‟s flea market. Later that week, Cain went to Morrow‟s flea market, killed
Morrow, and brought four guns back to Nelson‟s house– three guns that were proceeds from
the robbery and the gun that Sanders had given to Cain previously. Cain also put money bags
from the robbery in a trash barrel outside of Hess‟ house. When Cain told Sanders about
killing Morrow, Sanders told him to burn the money bags in the trash barrel, and Sanders
sold two of the guns Cain had brought home in exchange for drugs.
On May 27, 2009, the State filed an Information charging Sanders with Count I,
murder, a felony, I.C. § 35-42-1-1(1); Count II, murder, a felony, I.C. § 35-42-1-1(2); and
Count III, robbery while armed with a deadly weapon, a Class B felony, I.C. § 35-42-5-1. On
November 25, 2009, the State and Sanders filed a plea agreement with the trial court.
However, on the date scheduled for sentencing, the trial court rejected the plea agreement
and set the matter for trial. On February 18, 2010, the State and Sanders filed a second plea
agreement with the trial court. Before sentencing, both the State and Sanders filed motions
to withdraw the plea of guilty and proceed to trial. On July 23, 2010, the trial court granted
the motions and again set the matter for trial.
On November 19, 2010, the State and Sanders filed a third plea agreement with the
trial court. Under the terms of this agreement, Sanders pled guilty to an amended Count III,
robbery resulting in serious bodily injury, as a Class A felony. In exchange, the State agreed
to dismiss both Counts I and II, as well as Sanders‟ probation violation of another charge.
The agreement also specified that the sentence would be open to the trial court and that the
sentencing hearing could occur on the same day as the trial court reviewed the plea
agreement because a pre-sentence investigation had already been completed. On November
19, 2010, the trial court accepted the plea agreement and sentenced Sanders to fifty years
executed in the Indiana Department of Correction.
Sanders now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sanders’ Guilty Plea
On appeal, Sanders first argues that the trial court failed to establish a factual basis to
support his plea of guilty. In Indiana, a trial court “shall not enter judgment upon a plea of
guilty . . . unless it is satisfied from its examination of the defendant or the evidence
presented that there is a factual basis for the plea.” I.C. § 35-35-1-3(b). Here, the trial court
held a guilty plea hearing on November 19, 2010, and heard Sanders‟ testimony regarding the
facts underlying the guilty plea. At the conclusion of Sanders‟ testimony, neither party
objected to the facts, and the trial court accepted both the factual basis underlying the plea
and the agreement itself.
Based on this procedural history, we cannot agree with Sanders‟ argument. It is wellsettled that a person who pleads guilty cannot challenge the propriety of the resulting
conviction on direct appeal; he or she is limited on direct appeal to contesting the merits of a
trial court‟s sentencing decision, and then only where the sentence is not fixed in the plea
agreement. Alvey v. State, 911 N.E.2d 1248, 1249 (Ind. 2009). “This is one of the
consequences of pleading guilty. After all, „[a] defendant‟s plea of guilty is [ ] not merely a
procedural event that forecloses the necessity of trial and triggers the imposition of sentence.
It also, and more importantly, conclusively establishes the fact of guilt, a prerequisite in
Indiana for the imposition of criminal punishment.‟” Id. (quoting Norris v. State, 896 N.E.2d
1149, 1152 (Ind. 2008)).
Based on this standard, we conclude that Sanders has not presented an argument that
we can address on direct appeal. His argument specifically relates to the nature of the
evidence resulting in his guilty plea and conviction, which is an argument that was foreclosed
for direct appeal when he pled guilty. See id. Accordingly, we conclude that the trial court
did not fail to establish a factual basis to support Sanders‟ guilty plea.
I. The Nature of the Offense and Character
Next, Sanders argues that the trial court inappropriately sentenced him in light of the
nature of his offense and his character. Under Indiana Appellate Rule 7(B), this court may
revise a sentence authorized by statute if, after due consideration of the trial court‟s decision,
the court finds that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006).
Although this court is not required to use “great restraint,” we nevertheless exercise
deference to a trial court‟s sentencing decision, both because Appellate Rule 7(B) requires
that we give “due consideration” to that decision and because we recognize the unique
perspective a trial court has when making decisions. Stewart v. State, 866 N.E.2d 858, 86566 (Ind. Ct. App. 2007). The “principal role of appellate 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). In addition, the
defendant bears the burden of persuading this court that his sentence is inappropriate.
Childress, 848 N.E.2d at 1080.
As to the nature of Sanders‟ offense, Sanders claims that the trial court should not
have given him the maximum possible sentence for a Class A felony because he was only an
accessory to the crime. He also argues that the trial court inappropriately considered
Morrow‟s death in relation to the gravity of his offense because “serious bodily injury” was
already included as an element of the offense. See I.C. § 35-42-5-1-1(2). However, in
Patterson v. State, 846 N.E.2d 723, 731 (Ind. Ct. App. 2006), we held that persons guilty of
aiding and abetting crimes may receive maximum sentences under Indiana‟s sentencing laws.
We also determined that it was not improper for the trial court to consider the nature of the
serious bodily injury as a factor justifying the imposition of the maximum sentence, even
though serious bodily injury is also an element of the crime. Id.
In addition, Sanders‟ other actions contributed to the gravity of his offense. Sanders
obtained and guaranteed a throw away gun for Cain; told Cain how to find Morrow; and
helped Cain dispose of the evidence by selling two of the guns and telling him to burn the
money bags. We agree with the State that Sanders was inextricably involved in Cain‟s
robbery of Morrow and Morrow‟s resulting death. Therefore, the trial court‟s sentence is
appropriate in light of the nature of Sanders‟ offense.
In regards to his character, Sanders argues that the trial court inappropriately
sentenced him with the maximum sentence allowed for a Class A felony because, as we
stated in Haddock v. State, 800 N.E.2d 242, 248 (Ind. Ct. App. 2003), maximum sentences
should be reserved for the worst offenders. However, we find that Sanders has misconstrued
this standard. In Buchanan, the Indiana Supreme Court clarified that:
This is not, however, a guideline to determine whether a worse offender could
be imagined. Despite the nature of any particular offense and offender, it will
always be possible to identify or hypothesize a significantly more despicable
scenario. Although maximum sentences are ordinarily appropriate for the
worst offenders, we refer generally to the class of offenses and offenders that
warrant the maximum punishment. But such class encompasses a considerable
variety of offenses and offenders.
Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002).
Here, there is evidence in the record that Sanders‟ character warranted the maximum
sentence. Sanders‟ criminal history, as documented in the pre-sentence investigation report,
was extensive. He had three prior felony convictions and was on felony probation at the time
of the instant offense. In addition, “[a]s a juvenile, [Sanders] had his probation modified
several times and eventually revoked. As an adult, [Sanders]  had two (2) terms of
probation revoked and was ordered to serve additional jail time.” (Appellant‟s App. p. 43).
He also had a pending probation violation and a pending suspended sentence violation at the
time the pre-sentence investigation report was written. We conclude that the trial court‟s
evaluation of Sanders‟ character was not inappropriate in light of this criminal history. We
especially find it notable that Sanders received several opportunities for probation and
suspended sentences in the past and had a history of violating the terms of those sentences.1
As an additional note, Sanders also argues that the trial court failed to give enough
weight to the psychological evaluations in the pre-sentence investigation report that detail
that Sanders had “long standing mental deficiencies” such as attention deficit hyperactivity
disorder and tendencies towards impulsiveness, aggressiveness, and low confidence.
(Appellant‟s Br. p. 15). We will not address this argument, because it is an improper ground
for appellate review. Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on
Sanders argues that the trial court inappropriately considered his probation violations because none of the
violations were admitted by Sanders or proven by the State, but we cannot agree with this argument. The
violations were documented in the pre-sentence investigation report, and Sanders told the trial court that he did
not have any new evidence to add to the report.
reh’g, 875 N.E.2d 218. Under the current sentencing scheme, a trial court cannot be said to
have abused its discretion by failing to properly weigh or balance sentencing factors. Id.
Based on the foregoing, we conclude that Sanders cannot challenge the factual basis
for his guilty plea on direct appeal, and the trial court properly sentenced him in light of the
nature of his offense and his character.
DARDEN, J., and BARNES, J., concur.