Judge’s comment doesn’t require reversal of 15-year sentencing enhancement, COA rules

Despite a judge’s comment that a defendant “dodged a bullet” in avoiding a murder conviction, the St. Joseph County man cannot avoid a 15-year sentencing enhancement on his conviction of reckless homicide with the use of a firearm, the Court of Appeals of Indiana has concluded.

While gathered at a South Bend gas station in the early morning hours of March 14, 2020, two women engaged in a fight that drew a crowd. Anthony Malone, who was dating one of the women, got involved and began kicking the other woman in the face.

Malone then pulled out a gun and threatened an onlooker who said he shouldn’t be kicking the woman. Malone also attempted to start a fight with someone in the crowd, prompting Andre Jones to intervene.

When the confrontation between Malone and Jones dissolved and people started walking away, Malone took a shot at Jones but missed. Instead, the bullet hit bystander DeAshay Thompson in the neck, killing her.

A number of witnesses were interviewed, and Malone emerged as a suspect. A couple weeks after the shooting, following a high-speed chase spanning several counties and resulting in a vehicle wreck, Malone was arrested on a warrant for homicide.

Malone was subsequently charged with felony murder and a firearm sentencing enhancement. However, a jury found him guilty of the lesser-included offense of reckless homicide as a Level 5 felony.

Malone then pleaded guilty to the firearm enhancement charge and was sentenced to an aggregate of 21 years in prison, with six years  for the reckless homicide conviction and 15 years for the enhancement. In handing down the sentence, St. Joseph Superior Judge Jeffrey L. Sanford told Malone, “I think you dodged a bullet in not being convicted of [m]urder because you’d be talking about a lot more time than this.”

On appeal, Malone argued the trial court’s imposition of a 15-year enhancement was “compensation for the trial court’s belief that the jury incorrectly found [him] guilty of reckless homicide, rather than murder.”

But the Court of Appeals affirmed in Anthony Malone v. State of Indiana, 21A-CR-2380, finding that remand and resentencing weren’t warranted.

The appellate court applied a similar analysis to what was used in McCain v. State, 148 N.E.3d 977 (Ind. 2020), noting the trial court’s sentencing statement in Malone’s case was centered on the circumstances surrounding the crime and his criminal history.

“Unlike the statements in (Gambill v. State, 436 N.E.2d 301 (Ind. 1982)) the trial court’s statement here was not openly hostile to the jury’s decision, but was rather an observation,” Judge Patricia Riley wrote. “… While the judge’s statement at sentencing revealed that he personally disagreed with the reckless homicide verdict, a judge ‘is not prohibited from expressing his personal disagreement.’

“… We find that the statement that Malone dodged a bullet for not being convicted of murder, viewed in the context of the record as a whole, was a similar statement to that in McCain, and we consider it an ‘evaluative statement of the circumstances surrounding the crime,’” Riley wrote.

The appellate court further concluded that the language the trial court used was more of a statement regarding the seriousness of the crime and an explanation for the imposition of the sentence, rather than an improper display of bias.

“In light of the foregoing, we hold that Malone’s aggregate twenty-one-year sentence does not demonstrate an improper motive by the trial court, and we conclude that the trial court did not abuse its discretion at sentencing,” Riley wrote.

As for the appropriateness of his sentence, the COA noted that Malone only raised an argument about his character, not the nature of the offense.

“As such, Malone has waived any argument in this regard,” Riley wrote.

“… Based on the foregoing,” she concluded, “nothing about the nature of the offense and the character of the offender warrants the imposition of less than the twenty-one-year sentence. Malone has not established that his sentence is inappropriate.”

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