A man convicted of murder in Allen County will continue to serve a 65-year sentence after the Indiana Court of Appeals ruled that the callousness of the crime merited the consideration of numerous aggravators.
In Delmas Sexton II v. State of Indiana, No. 02A03-1110-CR-465, Sexton argued that the trial court abused its discretion in sentencing him when it found as an aggravating circumstance the fact that as a multiple-conviction felon, he was unlawfully possessing the gun he used to kill his victim.
The court also rejected Sexton’s claim that the Allen Superior Court sentence was improper because its consideration of his criminal past resulted in double jeopardy.
In March 2009, Sexton went to the home of Donald McKee, ordered him at gunpoint to write checks, then bound him with duct tape, covered his head and forced him into a truck. According to court documents, Sexton shot McKee in the head three times and left him in the truck, where McKee was found more than a week later.
Sexton was charged with murder; felony murder; Class A felony robbery; criminal confinement and unlawful possession of a firearm by a serious violent felon, both Class B felonies, and two counts of Class C felony forgery. The state also alleged that Sexton was a habitual offender.
According to court records, Sexton punched his attorney in the face in open court as a trial was set to begin in 2009, resulting in the trial’s cancellation. As another jury trial was about to begin, Sexton pleaded guilty to felony murder and the state dropped the remaining charges.
“Sexton says the trial court’s finding of multiple aggravators relating to his criminal past (like his criminal convictions, his drug use, the escalating nature of his crimes of violence, that he is at high risk of reoffending) is akin to being punished multiple times for the same offense. We disagree,” Senior Judge Randall Shepard wrote in an opinion joined by Judge Edward Najam Jr.
“A trial court may consider multiple factors relating to a defendant’s criminal past at the sentencing stage. The trial court here convicted Sexton of felony murder. For that crime, the trial court imposed one sentence. There is no double jeopardy violation,” Shepard wrote.
Judge L. Mark Bailey in a brief concurring opinion wrote that he relied on Farmer v. State, No. 772 N.E.2d 1025 (Ind. Ct. App. 2002), as the proper application of Hammons v. State, 493 N.E.2d 1250 (Ind. 1986), cited as precedent in affirming Sexton’s conviction.