ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Anthony S. Churchward Gregory F. Zoeller

Fort Wayne, Indiana Attorney General of Indiana

Marjorie Lawyer-Smith

Deputy Attorney General

Indianapolis, Indiana

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In the

Indiana Supreme Court 

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No. 02S03-1006-CR-339

AUSTIN KNIGHT,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

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Appeal from the Allen Superior Court, No. 02D04-0702-FA-20

The Honorable John F. Surbeck, Jr., Judge

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On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0811-CR-532

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June 30, 2010

Rucker, Justice.
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Austin Knight pleaded guilty to several felony offenses for which he was sentenced to an 

aggregate term of seventy years. Under our constitutional authority we revise the sentence to a 

total aggregate term of forty years. 

Facts and Procedural History

In the early morning hours of February 19, 2007, seventeen-year-old Knight and three 

other men – Malcom Ellis, Johnnie Walker, and Antonio Wright – used keys they had previously 

stolen from an apartment complex office to gain entry to two separate units in the complex. 

Upon entering the first apartment, the four men found a lone resident asleep in her bed. The men 

tied the resident up, stuffed a rag in her mouth, covered her face, and then proceeded to ransack 

the apartment, stealing money and property from her. Before leaving, one of the men shot the 

resident in the legs more than 10 times at close range with a pellet gun. The resident‟s goldfish 

was also shot and killed. 

The men then entered a second apartment and encountered four occupants therein. 

Brandishing guns, the men rounded up the occupants from their two bedrooms and ordered them 

to the floor in the main room. One of the four occupants was ordered to drive to an ATM to 

make a withdrawal. The intruders remaining at the apartment ordered one of the female 

occupants to disrobe. After taking money and property from the occupants and after the others 

had returned, the men heard sirens and fled. Three of the four men, including Knight, were 

apprehended nearby.

On February 22, 2007, the State charged Knight with: (1) Count I, burglary as a class A 

felony; (2) Count II, robbery as a class B felony; (3) Count III, criminal confinement as a class B 

felony; (4) Count IV, burglary as a class B felony; (5) Count V, robbery as a class B felony; (6) 

Count VI, robbery as a class B felony; (7) Count VII, criminal confinement as a class B felony; 

(8) Count VIII, criminal confinement as a class B felony; (9) Count IX, criminal confinement as 

a class B felony; (10) Count X, robbery as a class B felony; and (11) Count XI, criminal 

confinement as a class B felony.
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On July 6, 2007, Knight entered into a plea agreement with the State in which he agreed 

to plead guilty to Count I, burglary as a class A felony and Count IV, burglary as a class B felony 

with the remaining counts being dismissed. Appellant‟s App. at 43-45. The State agreed to a 

sentence of twenty years executed on Count I and ten years executed on Count IV, with the 

sentences running consecutively for a total executed term of thirty years. In return Knight was 

required to testify truthfully in any proceedings the State brought against Knight‟s three 

codefendants. Id. The trial court took the plea agreement under advisement and scheduled a 

sentencing hearing for September 10, 2007, which was later continued until April 3, 2008. 

However on March 3, 2008, the plea agreement was rescinded upon the State‟s motion when 

Knight refused to testify against Antonio Wright, one of the codefendants. 

Thereafter Knight pleaded guilty to all eleven counts without the benefit of a plea 

agreement. After a hearing, the trial court sentenced Knight as follows: thirty years on Count I 

and ten years on Count II to be served concurrently; ten years on Count IX to be served 

consecutively to the sentences imposed on Counts I and II; and six years on each of Counts IV, 

V, VI, X, and XI, to be served consecutively to each other and consecutive with the sentences 

imposed on Counts I, II, and IX, for a total executed term of seventy years.1 Knight appealed 

contending the sentence was inappropriate in light of the nature of the offense and his character. 

In an unpublished memorandum decision, the Court of Appeals affirmed the judgment of the 

trial court. See Knight v. State, No. 02A03-0811-CR-532 (Ind. Ct. App. June 17, 2009). We 

grant transfer. 

Discussion

For burglary as a class A felony as charged in Count I and robbery as a class B felony as 

charged in Count II the trial court imposed the advisory sentences of thirty years and ten years 

respectively. As for confinement as a class B felony as charged in Count IX the trial court 

imposed the advisory sentence of ten years. And for robbery as a class B felony as charged in 

Counts IV, V, VI and X and confinement as a class B felony as charged in Count XI, the trial 

court imposed six year minimum sentences. There is no question that the trial court properly 

 

1 The trial court merged Counts III, VII, and VIII into Counts I, V, and VI, respectively.
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exercised its sentencing discretion in this case. Nonetheless, “[a]lthough a trial court may have 

acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the 

Indiana Constitution „authorize[ ] independent appellate review and revision of a sentence 

imposed by the trial court.‟” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (alterations in 

original) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). Our appellate 

authority is implemented through Indiana Appellate Rule 7(B), which allows us to “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.” We also observe that although we “need not compare” sentences of codefendants, 

Dennis v. State, 908 N.E.2d 209, 214 (Ind. 2009), “we are not precluded” from “compa[ring] 

sentences among those convicted of the same or similar crimes.” Trowbridge v. State, 717 

N.E.2d 138, 150 (Ind. 1999), reh‟g denied (revising 199-year sentence of a fourteen-year-old 

convicted of multiple offenses including murder, rape, robbery, and burglary “in light of 

Trowbridge‟s age and comparisons to the sentences of other juveniles convicted of the same or 

similar crimes.”).

In this case the seventy-year sentence imposed by the trial court on one of Knight‟s 

codefendants – Malcolm Ellis – was revised on appeal to a total executed term of thirty-six years 

with four years probation. As with Knight, Ellis also entered a plea agreement calling for a 

thirty-year sentence and requiring him to testify truthfully in any proceedings the State brought 

against any of the other three codefendants. As with Knight, Ellis‟ plea agreement was rescinded 

when he also refused to testify against codefendant Antonio Wright. And as with Knight, Ellis 

has a juvenile criminal history that includes what would have been a class B felony if committed 

by an adult. The only difference between the two is that Knight was seventeen years old at the 

time of the instant offenses and Ellis was sixteen. Although apparently acknowledging that the 

nature of the crimes was horrendous, in revising Ellis‟ sentence the Court of Appeals majority 

had this to say about the character of the offender:

[W]e are concerned about the effect that a lengthy seventy-year 

prison sentence may have on a sixteen year old. His imprisonment 

will house him with older, hardened criminals and without a „light 

at the end of the tunnel,‟ Ellis might be less susceptible to 

redemption. The State apparently recognized that a lower sentence 
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might be more appropriate in this case by offering Ellis an 

aggregate sentence of thirty years. We agree. In order for the 

prison sentence to retain a somewhat rehabilitative character for 

Ellis, we decrease his sentence.

Ellis v. State, No. 02A03-0811-CR-557, slip op. at 4 (Ind. Ct. App. May 18, 2009). These 

observations apply with equal force in this case. Indeed “a defendant‟s youth . . . is a significant 

mitigating circumstance in some circumstances including the commission of a heinous crime by 

a juvenile.” Trowbridge, 717 N.E.2d at 150 (internal citations and quotations omitted). We do 

not condone Knight‟s past or current violations of the law. Nonetheless, we cannot conclude that 

Knight‟s transgressions necessarily “demonstrate a character of such recalcitrance or depravity” 

that they justify a seventy-year sentence. Hollin v. State, 877 N.E.2d 462, 465-66 (Ind. 2007) 

(quoting Frye v. State, 837 N.E.2d 1012, 1015 (Ind. 2005)). And although we are not inclined to 

revise Knight‟s sentence to be precisely the same as that of Knight‟s codefendant, we do believe 

a revision is in order. We therefore revise Knight‟s six-year consecutive sentences imposed on 

Counts IV, V, VI, X, and XI to run concurrently with the thirty-year and ten-year concurrent 

sentences imposed on Counts I and II and the ten-year consecutive sentence imposed on Count 

IX for a total executed term of forty years. 

Conclusion

We remand this cause to the trial court with instructions to enter a sentence consistent 

with this opinion. 

Shepard, C.J., and Sullivan, J., concur.

Dickson and Boehm, JJ., dissent without separate opinion.