Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018 Page 1 of 10

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

Mark A. Thoma

Leonard Hammond Thoma & Terrill

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J. T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Fredrick L. Magee,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 28, 2018

Court of Appeals Case No.

18A-CR-747

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D06-1708-F3-46

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-747 | September 28, 2018 Page 2 of 10

STATEMENT OF THE CASE

[1] Appellant-Defendant, Fredrick L. Magee (Magee), appeals his conviction for 

Count I, rape, a Level 3 felony, Ind. Code § 35-42-4-1; Count II, sexual battery, 

a Level 6 felony, I.C. § 35-42-4-8; Count III, strangulation, a Level 6 felony, 

I.C. § 35-42-2-9; and Count IV, battery, a Class A misdemeanor, I.C. § 35-42-2-

1. 

[2] We affirm.

ISSUES

[3] Magee raises two issues on appeal, which we restate as the following three 

issues: 

(1) Whether the trial court properly imposed a consecutive sentence;

(2) Whether the trial court abused its discretion in failing to consider certain 

mitigating circumstances during sentencing; and

(3) Whether Magee’s sentence is inappropriate in light of the nature of the 

offense and his character. 

FACTS AND PROCEDURAL HISTORY

[4] On July 2, 2017, T.J. was living on Decatur Road, in Fort Wayne, Indiana. 

T.J. had met Magee seven years ago and they had been in an “on and off” 

relationship. (Transcript p. 170). When she finished her shift at a local bar in 

the early morning of July 2, 2017, T.J. and Magee met at T.J.’s apartment 

where they were planning to have a couple of beers and to smoke some 
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marijuana. Around 6:00 a.m., after having drank a couple of beers, Magee 

asked T.J. if she had Snapchat on her phone. T.J. denied having the app and 

showed Magee her phone. Magee moved from the chair where he had been 

sitting to the bed where T.J. was laying in an effort “to grab the phone because 

he thought [T.J.] was trying to hide something.” (Tr. p. 177). While they were 

fighting over T.J.’s phone, Magee became angry and started choking T.J. from 

behind, telling her she was“gonna die tonight.” (Tr. p. 180). T.J. struggled and 

unsuccessfully attempted to stand up. Instead, she was pushed up against the 

bedside table, on her knees, while Magee placed his forearm around her neck 

until he cut off her breathing. T.J. urinated and defecated all over herself and 

then passed out. 

[5] When T.J. regained consciousness, she was laying on her stomach and Magee 

was having anal sex with her. Magee finished, rolled over, and covered himself 

up. As T.J. became more fully aware of what was going on, she managed to 

separate herself from Magee and go into the bathroom. When she looked into 

the mirror, she noticed that she had a black eye, a “bite mark in her eye,” a bite 

on her ear, bruises on her neck, and blood in her hair. (Tr. p. 185). When she 

returned to the bedroom, she took her phone, went into the kitchen where she 

grabbed a knife to defend herself, and proceeded to call 911. While T.J. was on 

the phone with 911, Magee came “running out the room charging T.J.” (Tr. p. 

188). Magee eventually left the apartment and police officers arrived at T.J.’s 

apartment shortly thereafter. 
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[6] On August 28, 2017, the State filed an Information, charging Magee with 

Count I, rape, a Level 3 felony; Count II, sexual battery, a Level 6 felony; 

Count III, strangulation, a Level 6 felony; and Count IV, battery, a Class A 

misdemeanor. On January 30 through January 31, 2018, the trial court 

conducted a jury trial. At the close of the evidence, Magee was found guilty as 

charged. On March 2, 2018, during the sentencing hearing, Magee was 

sentenced to fourteen years executed on Count I and two years executed on 

Count III. The trial court merged Counts I and II, as well as Counts III and IV, 

and ordered the sentences to run consecutively.

[7] Magee now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Consecutive Sentence

[8] Magee first contends that the trial court abused its discretion in sentencing him 

to consecutive sentences because both crimes occurred during a single episode 

of criminal conduct. 

[9] In general, a trial court cannot order consecutive sentences in the absence of 

express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006). 

“‘A sentence that is contrary to or violative of a penalty mandated by statute is 

illegal in the sense that is without statutory authorization.’” Id. (quoting Rhodes 

v. State, 698 N.E.2d 304, 307 (Ind. 1998)). Indiana Code section 35-50-1-2(c)(2) 

provides that except for statutory crimes of violence, “the total of the 

consecutive crimes of imprisonment . . . to which the defendant is sentenced for 
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felony convictions arising out of an episode of criminal conduct shall not 

exceed the advisory sentence for a felony which is one (1) class of felony higher 

than the most serious of the felonies for which the person has been convicted.” 

The term “‘episode of criminal conduct’ means offenses or a series of offenses 

that are closely related in time, place, and circumstance.” I.C. § 35-50-1-2(b). 

In determining whether multiple offenses constitute an episode of 

criminal conduct, the focus is on the timing of the offenses and 

the simultaneous and contemporaneous nature, if any, of the 

crimes. Additional guidance on the question can be obtained by 

considering whether the alleged conduct was so closely related in 

time, place, and circumstance that a complete account of one 

charge cannot be related without referring to the details of the 

other charge.

Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008). “Whether certain 

offenses constitute a single episode of criminal conduct is a fact-sensitive 

inquiry to be determined by the trial court.” Schlichter v. State, 779 N.E.2d 1155, 

1157 (Ind. 2002). The decision to impose consecutive sentences lies within the 

discretion of the trial court. Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 

2009). 

[10] While it is undisputed that the rape and strangulation occurred close in time, 

we are not persuaded that the two crimes are simultaneous or contemporaneous 

in nature to render them a single episode. Looking at the circumstances 

surrounding the charges, we note that the strangulation occurred out of a 

struggle over a phone. The attack was violent but not sexual in nature. The 

rape charge, however, commenced after Magee stopped strangling T.J. and she 
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had passed out. While she regained consciousness, Magee anally penetrated 

her. The second attack was both violent and sexual in nature, and commenced 

after Magee had time to decide to remain with an unconscious victim and to 

perpetrate an entirely new second offense while she regained consciousness.

[11] Furthermore, even if the two charges constitute a single episode of criminal 

conduct, the aggregate sentence does not exceed the statutory provision. See

I.C. § 35-50-1-2(c). Magee’s highest charge is a Level 3 felony. Thus, his

maximum sentence shall not exceed the advisory sentence for a Level 2 felony, 

which is seventeen and one-half years. See I.C. § 35-50-2-4.5. Here, the trial 

court’s imposed aggregate sentence is sixteen years. Accordingly, we find that 

the trial court did not abuse its discretion in imposing a consecutive sentence.

II. Mitigating Circumstances

[12] Next, Magee claims that the trial court abused its discretion when it failed to 

identify significant mitigating circumstances which were clearly supported by 

the record. 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 (Ind. 

2007). “An abuse of discretion occurs if the 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. A trial court may 

abuse its discretion by failing to enter a sentencing statement, entering findings 

of aggravating and mitigating facts unsupported by the record, omitting factors 
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clearly supported by the record and advanced for consideration, or giving 

reasons that are improper as a matter of law. Id. at 490-91. However, a trial 

court has no obligation to properly weigh these factors, and the weight given to 

such factors is no longer subject to appellate review. Id. at 491. “Under those 

circumstances, remand for resentencing may be the appropriate remedy 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. 

[13] Magee argues that the trial court failed to identify and consider the significant 

mitigating factors of community and familial support offered on Magee’s 

behalf; his desire to continue his education by going to college; and the 

hardship imposed on his two dependent children. During the sentencing 

hearing, the trial court considered the letters provided on behalf of Magee but 

rejected these statements as mitigators. Likewise, the Pre-Sentence 

Investigation (PSI) indicates Magee’s family and social support level to be 

“low.” (Appellant’s App. Vol. III, p. 10). At no point did Magee present any 

witnesses who testified on his behalf during the sentencing hearing. While 

Magee did not raise his intention during the hearing to continue his education 

by attending college, we note that the PSI makes an almost cursory mention of 

Magee listing “attending college as future educational goals.” (Appellant’s 

App. Vol. III, p. 10). With respect to the hardship Magee’s incarceration 

imposed on his two minor children, we hasten to point out that the children 

reside with their mother and do not receive any financial support from Magee. 
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Accordingly, while all of the proposed mitigating circumstances are briefly 

mentioned in the record, we conclude that Magee failed to establish that these 

were significant. Therefore, we find no abuse of discretion. 

III. Appropriateness of Sentence

[14] Magee also argues that his sentence is inappropriate in light of his character and 

the nature of the offenses. The authority granted to this court by Article 7, § 6 

of the Indiana Constitution permitting appellate review and revision of criminal 

sentences is implemented through Appellate Rule 7(B), which provides: “The 

[c]ourt may revise a sentence authorized by statute if, after due consideration of 

the trial court’s decision, the [c]ourt finds that the sentence is inappropriate in 

light of the nature of the offense and the character of the offender.” In 

performing our review, we assess “the culpability of the defendant, the severity 

of the crime, the damage done to others, and myriad of other factors that come 

to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). 

The principal role of such review is to attempt to leaven the outliers. Id. at 

1225. A defendant “must persuade the appellate court that his or her sentence 

has met the inappropriateness standard of review.” Angelmyer, 868 N.E.2d at 

494. 

[15] The trial court sentenced Magee to fourteen years executed on a Level 3 felony 

and two years executed on a Level 6 felony. A Level 3 felony carries with it a 

“fixed term of between six (6) and twenty (20) years, with the advisory sentence 

being ten (10) years;” while a Level 6 felony is punishable by “a fixed term of 
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between six (6) months and two and one-half (2 1⁄2) years, with the advisory 

sentence being one (1) year.” See I.C. §§ 35-50-2-5; -7. Accordingly, the trial 

court imposed an aggravated sentence on each offense. 

[16] Turning to the nature of the offenses, we note that Magee inflicted multiple 

injuries on T.J. and threatened her with her life during the commission of two 

separate offenses. A trivial fight over a phone led to strangulation and T.J. 

losing consciousness. When she regained consciousness, Magee was anally 

penetrating her, leaving her bloodied from the assault. 

[17] With respect to Magee’s character, thirty-eight-year-old Magee has an extensive 

history of criminal behavior. As the trial court observed during the sentencing 

hearing, there is not a particular calendar year during his adult life that Magee 

was not locked up or has not committed a crime. As an adult, Magee 

accumulated fifteen prior misdemeanor convictions and two prior felony 

convictions. He has been convicted of operating while intoxicated four times, 

operating while suspended four times, false informing twice, public intoxication 

twice, battery resulting in bodily injury twice, domestic battery, possession of 

marijuana, and escape. Magee has had his probation revoked once, his 

probation modified once, his home detention placement revoked once, and his 

suspended sentence revoked four times. At the time of sentencing in the current 

cause, Magee also had charges pending in Allen County. 

[18] Even though Magee claimed during sentencing that he “feel[s] like this system 

has failed [him], and [he] still maintain[s] [his] innocence,” Magee failed to take 
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advantage of the opportunities offered to him by the system previously. (Sent. 

Tr. p. 9). Moreover, Magee claims that “anything that [he has] done [he has] 

accepted it and [] owned up to it,” yet at the same time he painted T.J. as a liar 

at the sentencing hearing and assured the trial court that he was disappointed 

that she could “get away with accusing somebody over [] something that they 

say.” (Sent. Tr. p. 9). We conclude that the trial court did not impose an 

inappropriate sentence under Indiana Appellate Rule 7(B), and Magee’s 

sentence does not warrant appellate revision. Therefore, we decline to disturb 

the sentence imposed by the trial court. 

CONCLUSION

[19] Based on the foregoing, we hold that the trial court did not abuse its discretion 

by (1) imposing consecutive sentences; and (2) sentencing Magee to an 

aggregate sentence of sixteen years. 

[20] Affirmed.

[21] Vaidik, C. J. and Kirsch, J. concur