Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 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

Kristin A. Mulholland

Office of the Lake County Public 

Defender

Appellate Division

Crown Point, Indiana

ATTORNEY FOR APPELLEE

Sierra A. Murray

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Sherquell Dion Magee,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 10, 2020

Court of Appeals Case No.

19A-CR-2638

Appeal from the

Lake Superior Court

The Honorable

Samuel L. Cappas, Judge

Trial Court Cause No.

45G04-1805-MR-3

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 2 of 10

[1] After Sherquell Dion Magee (“Magee”), age seventeen, pleaded guilty to 

voluntary manslaughter,1 a Level 2 felony, and a sentence enhancement for use 

of a firearm,2the trial court sentenced him to an aggregate term of forty years, 

twenty-five years for voluntary manslaughter and a fifteen-year enhancement 

for Magee’s use of a firearm in the commission of his crime. On appeal, Magee 

raises one issue, which we restate as whether his forty-year aggregate sentence 

is inappropriate. 

[2] We affirm. 

Facts and Procedural History

[3] On May 5, 2018, Magee went to Nunez Park in East Chicago, Indiana, with a 

group of friends, including N.H. Appellant’s App. Vol. Two at 78. An elevenyear-old boy, D.A., was also at the park with several of his friends. Id. at 78. 

Shortly after Magee’s group arrived, a third group came to the park, which 

included A.G. Id. Approximately twenty-two people were within the 

immediate vicinity. State’s Ex. 1; Tr. Vol. 2 at 53. N.H. and A.G. argued and 

began to fight. Appellant’s App. Vol. Two at 78. Magee intervened to help N.H., 

and Magee and A.G. exchanged punches. Id. Magee then reached into his 

pocket, pulled out a handgun, and pointed the gun at A.G. Id. Magee fired one 

1

See Ind. Code § 35-42-1-3(a)(1).

2

See Ind. Code § 35-50-2-11(d).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 3 of 10

shot with the intent to kill A.G. Id. The bullet missed A.G. and struck D.A. in 

the head, killing him. Id. 

[4] On May 11, 2018, the State charged Magee with murder, attempted murder, 

and attempted battery by means of a deadly weapon. Id. at 17-18. The State 

amended the charging information several times, ultimately charging Magee 

with murder, attempted murder, battery by means of a deadly weapon, 

voluntary manslaughter, and sought a sentencing enhancement for Magee’s use 

of a firearm in the commission of his crime. Id. at 72-73. 

[5] The parties entered into a plea agreement on August 30, 2019, in which Magee

agreed to plead guilty to voluntary manslaughter and the use of a firearm

enhancement. Id. 74-79. The State agreed to dismiss the remaining counts. Id.

Sentencing was left to the trial court’s discretion, although the parties agreed to 

a minimum of twenty years on the voluntary manslaughter conviction. Id. On 

August 30, 2019, Magee pleaded guilty, and the trial court accepted the plea. 

Tr. Vol. 2 at 11.

[6] The sentencing hearing was held on October 11, 2019. Appellant’s App. Vol. Two

at 110-12; Tr. Vol. 2 at 17-55. The trial court sentenced Magee to twenty-five 

years on the voluntary manslaughter charge and enhanced the sentence by 

fifteen years for the firearm enhancement, yielding an aggregate sentence of 

forty years. Appellant’s App. Vol. Two at 110-12. The trial court also ordered 

that the last two years of the sentence be served in Lake County Community 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 4 of 10

Corrections. Id. at 111. Magee now appeals. We will provide additional facts 

as necessary.

Discussion and Decision

[7] Magee argues his forty-year aggregate sentence is inappropriate, primarily 

focusing on the character prong of appellate sentencing review under Indiana 

Appellate Rule 7(B). Specifically, Magee contends the sentence is inappropriate 

because of his youth, his lack of a criminal record, his expressions of remorse, 

and his agreement to plead guilty. As to the nature-of-offense prong, Magee 

claims his sentence is inappropriate because D.A., the victim, was struck and 

killed by a stray bullet. 

[8] Under Indiana Appellate Rule 7(B), we may revise a sentence if we find the 

sentence is inappropriate considering the nature of the offense and the character 

of the offender. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on 

reh’g, 875 N.E.2d 218 (2007). The “nature of offense” compares the defendant’s 

actions with the required showing to sustain a conviction under the charged 

offense, Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008), while the 

“character of the offender” permits for a broader consideration of the 

defendant’s character. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 

2013), trans. denied. Whether a sentence is inappropriate turns on our sense of 

the defendant’s culpability, the severity of the crime, the damage done to others, 

and other factors that come to light in a given case. Cardwell, 895 N.E.2d at 

1224. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 5 of 10

[9] We consider not only the aggravators and mitigators found by the trial court but 

also any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852, 

856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our goal is 

to determine whether the appellant’s sentence is inappropriate, not whether 

some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 

864, 876 (Ind. 2012). “Such deference should prevail unless overcome by 

compelling evidence portraying in a positive light the nature of the offense (such 

as accompanied by restraint, regard, and lack of brutality) and the defendant’s 

character (such as substantial virtuous traits or persistent examples of good 

character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). When we 

review a sentence, we seek to leaven the outliers, not to achieve a perceived 

correct result. Cardwell, 895 N.E.2d at 1225.

I. Character of Offender

[10] Magee correctly observes that it is necessary for appellate courts to “consider an 

offender’s youth and its attendant characteristics,” Brown v. State, 10 N.E.3d 1, 

7 (Ind. 2014), and that juveniles are presumed to be less culpable than adults. 

Graham v. Florida, 560 U.S. 48, 68 (2010). Youth are less culpable because they 

are less mature and responsible, are more impulsive and reckless, and are more 

vulnerable to peer pressure. Id. They are less culpable also because a youth’s 

character is not well formed, meaning his or her actions are less likely to 

indicate irretrievable depravity. Miller v. Alabama, 567 U.S. 460, 471 (2012). 

These traits diminish justification for the most severe sentences, even when 

young offenders commit terrible crimes. Id. at 472. Draconian sentences 
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forswear the rehabilitative ideal and deny hope because character improvement 

becomes immaterial. Brown, 10 N.E.3d at 8. Applying these principles, Magee 

analogizes his case to Brown, in which the Indiana Supreme Court reduced a 

sixteen-year-old’s aggregate sentence of 150 years to an aggregate sentence of 

eighty years. Id.

[11] We reject Magee’s argument that his youth makes his sentence inappropriate. 

Magee’s age is the starting point, not ending point, in our analysis. “There are 

cunning children and there are naïve adults.” Sensback v. State, 720 N.E.2d 

1160, 1164 (Ind. 1999). “[F]ocusing on chronological age, while often a 

shorthand for measuring culpability, is frequently not the end of the inquiry for 

people in their teens and early twenties.” Monegan v. State, 756 N.E.2d 499, 504 

(Ind. 2001). “There are both relatively old offenders who seem clueless and 

relatively young ones who appear hardened and purposeful.” Ellis v. State, 736 

N.E.2d 731, 736 (Ind. 2000). Here, much of Magee’s behavior before the 

incident established that Magee was often able to resist immature, impulsive 

behavior, and was able to make prudent choices. For instance, even though 

Magee was frequently bullied, he tried to avoid fights. Tr. Vol. 2 at 25-26, 30-

32. He described himself as someone who “typically walked away from fights” 

and “did not take risks often.” Appellant’s Conf. App. Vol. Two at 87. He had no 

desire to join a gang and did not join a gang. Tr. Vol. 2 at 28, 32. Magee 

worked construction jobs since he was fifteen, often working two or three days 

per week, making $70.00 per day. Appellant’s Conf. App. Vol. Two at 86. While 

this evidence does not show that Magee was “cunning” and “hardened” – see 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 7 of 10

Sensback, 720 N.E.2d at 1164; Ellis, 736 N.E.2d at 736 – it does show Magee 

was capable of resisting impulsive and risky behavior. Therefore, we do not 

believe that his youth significantly reduces his culpability for his offense.

[12] We also find that the sentence reduction in Brown does not support a sentence 

reduction here. Admittedly, our Supreme Court reduced Brown’s sentence 

partly because Brown was sixteen when he committed his offenses. Brown, 10 

N.E.3d at 6-8. However, Brown’s sentence was reduced for other reasons, 

including that Brown: 1) was an accomplice, not the principal; 2) gave police a 

detailed description of the crime; and 3) began using drugs at a very young age. 

10 N.E.3d at 4-6. Such mitigating circumstances do not exist here. Most 

importantly, the Supreme Court reduced Brown’s 150-year sentence because 

such a sentence would forswear the rehabilitative ideal and deny hope. Id. at 8. 

Here, Magee did not receive the maximum potential aggregate sentence of fifty 

years, which would have consisted of the thirty-year maximum for Level 2 

felony voluntary manslaughter3 and the twenty-year maximum for the firearm 

enhancement.4 Further, Magee’s forty-year aggregate sentence, though 

substantial, does not remove hope and forswear the rehabilitative ideal because 

assuming Magee earns all credit time, he will be released from incarceration in 

his mid-40s, with the final two years of his sentence to be served in community 

3

See Ind. Code § 35-50-2-4.5.

4

See Ind. Code § 35-50-2-11(d), (g).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 8 of 10

corrections. Accordingly, Magee’s forty-year aggregate sentence is not 

inappropriate considering his age. 

[13] Magee argues his sentence is inappropriate considering his character for three 

additional reasons. First, he contends that his lack of a criminal record reflects 

well on his character. Magee correctly observes that he has no prior juvenile 

adjudications, adult convictions, or even arrests. Citing Bluck v. State, Magee 

argues that his lack of a criminal record deserves “substantial mitigating 

weight.” 716 N.E.2d 507, 514 (Ind. Ct. App. 1999). Second, Magee claims his 

expressions of remorse also reflect well on his character. See Appellant’s Conf. 

App. Vol. Two at 84; Tr. Vol. 2 at 51. Third, he claims his guilty plea shows he 

accepted responsibility for his offense. See Francis v. State, 817 N.E.2d 235, 237-

38 (Ind. 2004) (“A guilty plea demonstrates a defendant’s acceptance of 

responsibility for the crime and extends a benefit to the State and to the victim 

or the victim’s family by avoiding a full-blown trial.”).

[14] We are not persuaded that these factors are sufficient to find Magee’s sentence 

inappropriate. Magee’s lack of criminal record is commendable, but as the 

State observes, Magee had previously engaged in criminal conduct, even 

though Magee was not arrested or charged for that conduct. Specifically, 

Magee would often shoot his gun in the air to disperse crowds, even though he 

was not old enough to obtain a license to carry a gun. Tr. Vol. 2 at 31-32; see

Ind. Code § 35-47-2-3(g)(3). And by possessing the gun, Magee committed 

dangerous possession of a firearm, a Class A misdemeanor under Indiana Code 

section 35-47-10-5(a). The fact that Magee had been twice suspended from 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 9 of 10

school also reflects poorly on his character. Appellant’s Conf. App. Vol. Two at 

86.

[15] Magee’s guilty plea also does not make his sentence inappropriate. A 

guilty plea may not be significantly mitigating when a defendant receives a 

substantial benefit for the plea. Reis v. State, 88 N.E.3d 1099, 1105 (Ind. Ct. 

App. 2017). Here, Magee received a substantial benefit for his plea because if 

he had proceeded to trial on just the murder charge and was convicted of that 

offense, he could have been sentenced to a maximum of sixty-five years5 and 

been subjected to a maximum firearm enhancement of twenty years.6 Because 

Magee’s open guilty plea resulted in an aggregate sentence of forty years, he 

received a substantial benefit for the plea, so his plea is not a mitigating factor. 

Finally, to the degree that Magee’s remorse reflects well on his character, that is 

overshadowed by the foregoing factors, which reflect poorly on his character. 

See Kunberger v. State, 46 N.E.3d 966, 974 (Ind. Ct. App. 2015) (defendant’s 

remorse, acceptance of responsibility, and alleged mental health issues are 

clearly overshadowed by his flagrant violations of the no-contact order). 

[16] Accordingly, while we find that Magee’s character has some redeeming 

qualities, Magee has failed to show that his sentence is inappropriate with 

compelling evidence of “virtuous traits or persistent examples of good

5

See Ind. Code § 35-50-2-3.

6

See Ind. Code § 35-50-2-11(g).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2638 | June 10, 2020 Page 10 of 10

character” to find his sentence inappropriate considering his character. See

Stephenson, 29 N.E.3d at 112. 

II. Nature of Offense

[17] Magee argues that his sentence is inappropriate considering the nature of his

offense because the shooting was neither “brutal” nor “heinous” since D.A. 

was struck by “a bullet that went astray.” Appellant’s Br. at 12. We reject 

Magee’s effort to minimize the nature of his offense. Magee armed himself 

with a handgun that he was not old enough to own, needlessly intervened into a 

fistfight, and escalated the situation by drawing a handgun. Appellant’s App. Vol. 

Two at 78. When he aimed and fired the gun, there were twenty-two other 

people present, mostly juveniles, in the immediate area. State’s Ex. 1; Tr. Vol. 2 

at 53. Magee shot eleven-year-old D.A. in the head, resulting in his death. 

Appellant’s App. Vol. Two at 78. Accordingly, Magee has not provided 

compelling evidence that portrays his offense in a less negative light, that is, as 

an offense accompanied by restraint, regard, and lack of brutality. See 

Stephenson, 29 N.E.3d at 122. Accordingly, Magee has failed to show that his 

aggregate sentence of forty years is inappropriate considering the nature of his 

offense, and, likewise, considering his character.

[18] Affirmed.

Najam, J., and Brown, J., concur.