Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 1 of 11

MEMORANDUM DECISION

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

R. Brian Woodward

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Carah J. Austin

Deputy Attorney General

Angela N. Sanchez

Assistant Section Chief 

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Brandon McFadden,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 2, 2020

Court of Appeals Case No.

20A-CR-1221

Appeal from the Lake Superior 

Court

The Honorable Clarence D. 

Murray, Judge

The Honorable Michael N. 

Pagano, Pro Tempore
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 2 of 11

Trial Court Cause No.

45G02-1908-F1-39

Altice, Judge.

Case Summary

[1] Following his guilty plea to Level 5 felony domestic battery by means of a 

deadly weapon, Brandon McFadden appeals his sentence of four and one-half 

years, with one year suspended, asserting that the trial court abused its 

discretion by considering improper aggravators.

[2] We affirm.

Facts & Procedural History

[3] At 9:19 p.m. on August 19, 2019, police were dispatched to a residence in Gary 

on a report of shots fired. Upon entering the residence, officers made contact 

with a female victim, T.N., who had suffered gunshot abrasions to her arm and 

thigh. T.N. told officers that she and McFadden had been in a relationship but 

they ended it the week prior, he came to her home uninvited, they argued first

at the front door, and then she stepped out and they had a physical altercation. 

She described to officers that she ran back into the house and, as she was 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 3 of 11

closing the door, McFadden began shooting through it. T.N. was grazed by 

two or more bullets.

[4] On August 21, 2019, the State charged McFadden with seven counts: Level 1 

felony attempted murder; Level 3 felony aggravated battery; Level 5 felony 

domestic battery by means of a deadly weapon; Level 5 felony domestic battery 

resulting in serious bodily injury; Level 6 felony domestic battery resulting in 

moderate bodily injury; Level 6 felony pointing a firearm; and Class A 

misdemeanor domestic battery. 

[5] At a March 19, 2020 guilty plea hearing, McFadden and the State filed a plea 

agreement in which McFadden agreed to plead guilty to Level 5 felony 

domestic battery by means of a deadly weapon (Count III), and the State agreed 

to dismiss all remaining charges. Sentencing was left to the court’s discretion. 

The parties attached to the agreement a written Stipulated Factual Basis, which 

stated, in part: McFadden went to T.N’s home uninvited, he and T.N. had 

been in a prior intimate partner/dating relationship; and he was angry and fired 

multiple shots from his handgun through the front door where he knew T.N. 

was standing, grazing her with bullets and causing pain and injury to her arm 

and leg. Appellant’s Appendix at 37.

[6] The court took McFadden’s guilty plea under advisement, ordering the 

preparation of a presentence investigation report (PSI) and setting the matter for 

a sentencing hearing. On April 13, 2020, the State filed a PSI to which the 

probable cause affidavit was attached. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 4 of 11

[7] At the June 4, 2020 sentencing hearing, the State, without objection, referred to 

both the contents of the PSI and the victim’s impact statement1 and asserted 

that it was “a matter of sheer luck” that T.N. suffered only graze wounds given 

that McFadden fired multiple shots at her as she closed the door. Transcript at 

20. The State argued the existence of the following aggravators: (1) the harm 

was greater than necessary to prove the elements of the offense, as domestic 

battery with a deadly weapon does not require any injury; and (2) McFadden’s 

history of delinquent behavior, as he had a prior juvenile allegation and had a 

pending Level 6 felony charge. The State noted that McFadden “was getting a 

significant benefit” through the plea agreement by avoiding a Level 1 felony 

conviction and asked for a sentence of five years in the Indiana Department of 

Correction (DOC) followed by one year of probation. Id. at 20-21.

[8] Defense counsel argued that McFadden had no convictions and “little criminal 

history,” was nineteen years old at the time of sentencing, had family support, 

and had a job available to return to upon release. Id. at 21. Counsel noted that 

McFadden had been in jail for almost a year and suggested that he had learned 

his lesson and was grateful that T.N. “was not injured.” Id. at 22. McFadden

requested that the court impose the advisory three-year sentence with two years 

suspended. 

1 The victim’s impact statement is not included in the record before us.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 5 of 11

[9] McFadden gave a statement apologizing to T.N. “for any mental and physical 

pain that she has endured” and to his family for his “careless decision.” Id. at 

23. He stated that he “didn’t mean for the situation to occur like it did” and 

maintained that he refused to be a product of his environment and was not 

going to “fall victim to this side of the justice system.” Id. at 23-24. McFadden 

planned to re-enroll in a GED program and return to work.

[10] The court accepted McFadden’s guilty plea and, before imposing a sentence,

noted that it had considered the PSI and that it had received and read the 

victim’s impact statement, which defense counsel acknowledged having 

received from the State. The court identified as aggravating that the damages 

suffered by the victim were significant and greater than the elements required to 

prove the case and that the nature and circumstances of the situation indicated 

some degree of premeditation. The court also identified as an aggravating 

circumstance trauma to the victim, which the court viewed as “relatively 

significant” with the victim indicating in her victim impact statement that she 

suffered from nightmares and seizures and the incident delayed her entry into 

college. Id. at 26. The court also identified mitigators, including that 

McFadden was eighteen years old at the time of the incident (as was the victim) 

and that McFadden admitted guilt and entered into a plea agreement. The 

court found that the aggravators outweighed the mitigators and sentenced 

McFadden to four and one-half years in the DOC with one year suspended to 

probation. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 6 of 11

[11] The court entered a written sentencing statement the same day, consistent with 

but more detailed than its oral statement. The court identified the following 

four aggravating factors:

1. The harm, injury, loss or damage suffered by the victim of the 

offense was significant and greater than the elements necessary to 

prove the commission of the offense.

2. The defendant has a criminal history that includes one juvenile 

case that was dismissed and a pending felony case under Cause 

45008-1904-F6-000880.

3. The Court finds the nature and circumstances of the crime to 

be a significant aggravating factor in that the offense was 

premediated beyond the “heat of the moment,” and the age of 

the victim.

4. The trauma to the victim that includes nightmares and 

seizures. The trauma sustained by the victim also delayed her 

attendance to college.

Appellant’s Appendix at 71. After identifying several mitigators – that McFadden 

was likely to respond affirmatively to probation or short-term imprisonment, 

that he admitted his guilt and saved the expense of trial, and that he was only 

eighteen years old at the time of commission of the offense – the court found 

that the aggravators outweighed the mitigators and imposed the sentence. 

McFadden now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 7 of 11

Discussion & Decision

[12] It is well settled that “sentencing decisions rest within the sound discretion of 

the trial court and are reviewed on appeal only for an abuse of discretion.” 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 

218. An abuse of discretion occurs if the trial court’s decision is “clearly against 

the logic and effect of the facts and circumstances before the court, or the 

reasonable, probable, and actual deductions to be drawn therefrom.” Id. The 

trial court can abuse its discretion by: (1) failing to issue a sentencing statement, 

(2) finding aggravating or mitigating factors that are not supported by the 

record, (3) omitting factors that are clearly supported by the record and 

advanced for consideration, (4) or considering reasons that are improper as a 

matter of law. See id. at 490-91. The proper remedy is remand if we cannot say 

with confidence that the trial court would have imposed the same sentence had 

it properly considered reasons that enjoy support in the record. Id. at 491. 

Even if a trial court improperly applies an aggravator, a sentence enhancement 

may be upheld when there is another valid aggravating circumstance. Edrington 

v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009), trans. denied; see also

Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (“A single 

aggravator factor is sufficient to support an enhanced sentence.”). 

[13] For his Level 5 felony conviction, McFadden faced a sentencing range of one to 

six years, with the advisory being three years. Ind. Code § 35-50-2-6. The plea 

agreement left sentencing open to the trial court’s discretion. McFadden

challenges the sentence of four and one-half years, with one suspended, arguing 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 8 of 11

that “the trial court abused its discretion by using improper aggravators to 

enhance McFadden’s sentence[.]” Appellant’s Brief at 4. We address the four 

challenged aggravators in turn.

[14] Initially, McFadden contends there was no evidence in the record to 

substantiate the finding that the harm or injury suffered by the victim was 

significant and greater than the elements necessary to prove the offense. We 

disagree. It is undisputed that T.N. suffered graze wounds to her leg and arm 

causing her physical pain. Physical injury is not required to prove the elements 

of domestic battery by means of a deadly weapon. Ind. Code § 35-42-2-

1.3(a)(1). Thus, the record supports the court’s finding that the harm or injury 

suffered was greater than the necessary elements of the offense. Accordingly, 

we find no error with the trial court’s reliance on this aggravator.

[15] McFadden next alleges that the trial court abused its discretion when it 

aggravated the sentence based upon the impact to the victim, arguing that 

emotional and physical effects are inappropriate aggravators unless they are 

greater than those usually associated with the crime. He maintains that, here, 

“[t]here was no evidence presented that the victim suffered any substantial 

physical injury which would cause her seizures, or any other psychological 

trauma which exceeded that normally associated with crimes such as this.” 

Appellant’s Brief at 7. To the extent that McFadden suggests that a “substantial 

physical injury” was required to have caused her seizures, we reject that claim. 

Id. Whether caused by physical or by emotional injury, T.N. reported to the 

court that she was suffering seizures (and nightmares) after the incident where 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 9 of 11

McFadden shot at her multiple times. The trial court did not abuse its 

discretion when it considered the physical and emotional impact on T.N. 

[16] McFadden also asserts that the trial court abused its discretion when it 

considered his criminal history to be an aggravator because it consisted of a 

dismissed juvenile case and a pending felony but no convictions, arguing, 

“McFadden had nothing more than a bare record of arrest.” Appellant’s Brief at 

10. As this court has recognized, 

[a] record of arrest, without more, does not establish the 

historical fact that a defendant committed a criminal offense and 

may not be properly considered as evidence of criminal history. 

However, a record of brushes with the law . . . may reveal that a 

defendant has not been deterred even after having been subject to 

the police authority of the State. Such information may be 

relevant to the trial court’s assessment of the defendant’s 

character in terms of the risk that he will commit another crime.

Hape v. State, 903 N.E.2d 977, 1001 (Ind. Ct. App. 2009) (internal quotations 

and citation omitted), trans. denied. 

[17] Here, McFadden was eighteen at the time of the instant offense and by then 

had already faced a 2017 juvenile allegation of unauthorized entry of a motor 

vehicle, which was ultimately dismissed. In April 2019, McFadden was 

charged with Class 6 felony auto theft (related to theft of a component part of 

the vehicle) and such charge was pending when McFadden committed the 

present offense in August 2019. The trial court did not abuse its discretion 

when it considered this information when sentencing McFadden. See Hape, 903 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 10 of 11

N.E.2d at 1001 (no abuse of discretion in considering defendant’s pending 

charges as an aggravator).

[18] Lastly, McFadden argues that the trial court abused its discretion when it found 

that the nature and circumstances of the crime reflected that the offense was 

premeditated and beyond the “heat of the moment.” 2 Appellant’s Appendix at 

71. In our view, the record reflects a degree of premeditation. McFadden came 

to T.N.’s home, uninvited. T.N. and McFadden were no longer dating, their 

relationship having ended a week prior. He brought with him a loaded 

weapon. They first argued at the front door and then on the porch, with 

McFadden firing his gun as T.N. was retreating into the home. Given these 

circumstances, we cannot say that the trial court’s finding of premeditation was 

an abuse of discretion. 

[19] McFadden has failed to demonstrate that the trial court abused its discretion in 

its consideration of aggravating circumstances. 

2 In challenging this aggravator, McFadden asserts that it was error for the trial court, when addressing the 

nature and circumstances, to rely, in part, on facts as provided in the probable cause affidavit. He argues that 

it was improper for the court to do so because McFadden “neither adopted those facts nor relied upon them”, 

and, rather, relied solely on the Stipulated Factual Basis. Reply Brief at 6. We reject his claim, as Ind. Code § 

35-38-1-8(a) provides that “a defendant convicted of a felony may not be sentenced before a written 

presentence report is prepared by a probation officer and considered by the sentencing court[,]” and, here, the 

probable cause affidavit was attached to the PSI, which the trial court expressly stated that it considered in its 

entirety. Moreover, even if we agreed with McFadden and found that the trial court improperly relied on 

facts in the probable cause affidavit when determining that the crime showed premeditation, we find no 

reversible error because the trial court properly relied on other valid aggravators, and we can say with 

confidence that the trial court would have imposed the same sentence in light of the remaining aggravators 

and the mitigators.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 11 of 11

[20] Judgment affirmed.

Riley, J. and May, J, concur.