Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 1 of 7

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

P. Jeffrey Schlesinger

Office of the Public Defender

Appellate Division

Crown Point, Indiana

ATTORNEY FOR APPELLEE

Steven J. Hosler

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Marquise Marcel Harvey,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 22, 2020

Court of Appeals Case No.

20A-CR-12

Appeal from the Lake Superior 

Court

The Honorable Clarence D. Murray, 

Judge

Trial Court Cause No.

45G02-1807-F2-20

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 2 of 7

Case Summary

[1] Marquise Marcel Harvey (“Harvey”) pled guilty to one count of Robbery, as a 

Level 5 felony,1 and was sentenced to three years imprisonment. On appeal, he 

challenges the sentence, contending that the trial court abused its sentencing 

discretion and that his sentence is inappropriate. We affirm.

Facts and Procedural History

[2] On June 30, 2018, Trace Howard (“Howard”) purchased a meal for Harvey,

who was a stranger to Howard. Harvey rewarded Howard’s generosity by 

striking him in the head and stealing Howard’s wallet and cellular phone.

[3] On July 3, 2018, the State filed several charges against Harvey, related to his 

conduct against Howard, including a charge of Robbery, as a Level 2 felony. 

The State later alleged Harvey to be a habitual offender. As a result of plea 

negotiations between the State and Harvey, the State filed an amended 

Information, charging Harvey with Robbery, as a Level 5 felony. Harvey pled 

guilty to that charge. On December 2, 2019, he was sentenced to three years 

imprisonment, which is the advisory sentence for a Level 5 felony2 but the 

maximum sentence permitted by the plea agreement. Harvey now appeals. 

1

Ind. Code § 35-42-5-1.

2

See I.C. § 35-50-2-6, providing that a person convicted of a Level 5 felony faces a sentence of one to six 

years, with three years as the advisory sentence.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 3 of 7

Discussion and Decision

Abuse of Discretion

[4] Sentencing decisions rest within the sound discretion of the trial court. 

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

218 (Ind. 2007). So long as the sentence is within the statutory range, the trial 

court may impose it without regard to the existence of aggravating or mitigating 

factors. Id. at 489. However, if the trial court does find the existence of 

aggravating or mitigating factors, it must give a statement of its reasons for 

selecting the sentence it imposes. Id. at 490. The relative weight or value 

assignable to reasons properly found, or those which should have been found, is 

not subject to review for abuse of discretion. Id.

[5] An abuse of discretion will be found where 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 in a number of ways, including: (1) failing to 

enter a sentencing statement at all; (2) entering a sentencing statement that 

includes aggravating and mitigating factors that are unsupported by the record; 

(3) entering a sentencing statement that omits reasons that are clearly supported 

by the record; or (4) entering a sentencing statement that includes reasons that 

are improper as a matter of law. Id. at 490-91.

[6] Here, the trial court entered a sentencing statement recognizing four 

aggravators: the severity of the victim’s beating, Harvey’s criminal history, his
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 4 of 7

violation of probation, and his pending criminal charge. The trial court 

recognized a single mitigator, Harvey’s decision to plead guilty, thereby 

preserving judicial resources and taxpayer funds. Harvey now argues that the 

trial court abused its discretion by failing to include as mitigating circumstances 

his difficult childhood, his youth (twenty years of age), the hardship his 

imprisonment would cause his aunt, and his maturation during his most recent 

incarceration.

[7] “When a defendant alleges that the trial court failed to identify or find a 

mitigating circumstance, the defendant must establish that the mitigating 

evidence is both significant and clearly supported by the record.” Corbett v. 

State, 764 N.E.2d 622, 630 (Ind. 2002). “Age is neither a statutory nor a per se 

mitigating factor.” Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). As for 

Harvey’s background, his aunt, Alice Locket (“Locket”), testified that she had 

raised Harvey after his parents abandoned him in infancy. According to 

Locket, Harvey had a good childhood, one free from abuse and neglect. She 

testified that she had undergone cancer treatment in 2011 and Harvey’s 

assistance had been invaluable. Locket also opined that Harvey had benefited 

from recent rehabilitative efforts, describing him as “mature, rational, and 

compassionate.” (Tr. Vol. III, pg. 8.) Locket’s testimony did not establish that 

Harvey had endured abuse or suggest that he provided necessary assistance to a 

dependent on an ongoing basis. In closing, Harvey’s attorney argued that he 

had recently exhibited increased signs of maturity, yet he conceded that Harvey 

had been unable to comply with conditions of probation in the past. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 5 of 7

[8] On this record, we cannot say that the trial court overlooked evidence of 

mitigation that is “both significant and clearly supported by the record.” 

Corbett, 764 N.E.2d at 630. Harvey has not demonstrated an abuse of the trial 

court’s sentencing discretion.

Appropriateness

[9] Harvey received the advisory sentence for his crime, see Ind. Code § 35-50-2-6, 

but argues that it is too severe, due to his youth, background, recent benefits 

from rehabilitation, and his family obligations. We may revise a sentence if it is 

inappropriate in light of the nature of the offense and the character of the 

offender. Ind. Appellate Rule 7(B). When determining whether a sentence is 

inappropriate, we acknowledge that the advisory sentence “is the starting point 

the Legislature has selected as an appropriate sentence for the crime 

committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). The 

defendant has the burden of persuading us that his sentence is inappropriate. 

Id. at 1080.

[10] The principal role of a Rule 7(B) 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). We need not determine whether another sentence is more appropriate 

but rather whether the sentence imposed is inappropriate. Conley v. State, 972 

N.E.2d 864, 876 (Ind. 2012), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 6 of 7

[11] The nature of Harvey’s robbery of Howard is particularly heinous. Harvey 

gained access to his victim because he had purchased food for Harvey. Harvey

struck Howard in his head in order to obtain his wallet and cellular phone. At 

the sentencing hearing, the State submitted documentary evidence suggesting 

that Howard had been seriously injured as a result of blows to his head. 

Howard testified that, since the beating, he suffered more frequent seizures and 

was anxious and lacked trust in others.

[12] As for Harvey’s character, there was evidence that he had been kind to his aunt. 

His behavior as a citizen was not likewise becoming. In 2014, Harvey was 

twice adjudicated a juvenile delinquent. In 2016, he was convicted of illegal 

possession of alcohol and twice convicted of criminal trespass, all 

misdemeanors. In 2017, he was convicted of criminal confinement, as a Level 

5 felony, and failure to return to lawful detention, a Level 6 felony. He had 

violated probation on multiple occasions and was, at the time of sentencing, 

facing an additional charge for conversion.

[13] In sum, there is nothing known to us about the nature of the offense or the 

character of the offender that militates toward a sentence less than the advisory 

sentence imposed upon Harvey. 

Conclusion

[14] Harvey has not shown an abuse of the trial court’s sentencing discretion. His 

sentence is not inappropriate.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-12 | May 22, 2020 Page 7 of 7

[15] Affirmed.

Crone, J., and Altice, J., concur.