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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: KATHERINE A. CORNELIUS Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana MARA MCCABE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID BURKE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0601-CR-7

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jane Magnus-Stinson, Judge Cause No. 49G06-0503-MR-43337

December 14, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues David Burke appeals his sentence of thirty-five years with five years suspended for voluntary manslaughter, following a guilty plea. Burke raises two issues, which we restate as: (1) whether the trial court properly sentenced Burke; and (2) whether Burke's sentence is inappropriate given his character and the nature of the offense. We affirm, concluding that the trial court properly sentenced Burke and that the sentence is not inappropriate. Facts and Procedural History On February 6, 2005, Burke and Eric Taylor attended a barbeque at the residence of Taylor's girlfriend, Nikkitra Flemming. Burke and Taylor remained at Flemming's house after the other guests left. That evening, Dwayne Pryor, Flemming's ex-boyfriend came to the house and got in an argument with Flemming, at one point pushing her up against a wall. At this point, Taylor gave a handgun he had been carrying to Burke and began fighting with Pryor. During the fight, Burke fired four shots at Pryor, who died as a result of the gunshot wounds. Burke then fled the scene and Taylor called 911 to report the shooting. On March 14, 2005, a police officer saw Burke at a liquor store and recognized him as the person wanted in connection with Pryor's death. Officers arrested Burke and a search of the car Burke had driven to the store revealed the handgun with which Burke had shot Pryor. Burke was charged with murder and carrying a handgun without a license in connection with Pryor's death, and with carrying a handgun without a license and possession of a handgun by a domestic batterer in connection with the March 14 arrest. On November 16, 2005, Burke entered into a plea agreement under which he agreed to plead guilty to voluntary manslaughter and carrying a handgun without a license in 2

connection with Pryor's death, and to carrying a handgun without a license and possession of a firearm by a domestic batterer in connection with the March 14 arrest. In return, the State agreed to drop the murder charge, and capped the maximum executed portion of Burke's aggregate sentence at thirty-two and one-half years, with any additional time to be suspended to probation. On December 9, 2005, the trial court held a guilty plea and sentencing hearing, at which it discussed the aggravating and mitigating circumstances of the case. The trial court found as aggravating circumstances the fact that Burke shot Pryor four times, the fact that Burke continued to possess the handgun he used to kill Pryor after the shooting,1 and Burke's criminal history, which included felony possession of cocaine, and three misdemeanors: carrying a handgun without a license, resisting arrest, and domestic battery. As mitigating circumstances, the trial court recognized that Burke pled guilty, expressed remorse, had previously completed probation successfully, and had maintained employment. The trial court also found that Burke had acted in "not quite self-defense," and afforded the factor minimal weight. Transcript at 60. The trial court noted that it would not extend mitigating weight to two of Burke's proffered mitigators. First, the trial court stated that it was unable to say that the shooting was a result of circumstances that were unlikely to recur. The trial court also gave no weight to Burke's claim that his incarceration would impose undue hardship on his family, noting that Pryor's death had also imposed undue hardship on Pryor's family.

1

Burke does not argue that this factor is an improper aggravator.

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The trial court imposed an aggravated sentence of thirty-five years, with five suspended, for voluntary manslaughter, and six years, all executed, for possession of a handgun without a license. Under the cause number stemming from the March 14 arrest, the court sentenced Burke to eight years for possession of a handgun without a license, and one year for possession of a handgun by a domestic batterer. 2 The court ordered that all the sentences run concurrently, for an aggregate sentence of thirty-five years, with five years suspended, and that the length of Burke's probation upon his release be two years. Burke now appeals, challenging only his sentence for voluntary manslaughter. Discussion and Decision Burke argues that the trial court improperly balanced the aggravating and mitigating circumstances and that his sentence is inappropriate given his character and the nature of the offense. I. Balancing of Aggravators and Mitigators Because of the timing of events in this case, before addressing Burke's sentence, we must discuss the recent change in Indiana's statutory sentencing scheme. In 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), an opinion that called into question the constitutionality of Indiana's current sentencing scheme. Our legislature responded to Blakely by amending our sentencing statutes to replace "presumptive" sentences with "advisory" sentences, effective April 25, 2005. Weaver v.

Although Burke is not appealing the sentences under the second cause number, in his brief, he maintains his ability to challenge the sentences under post-conviction relief if some basis on which the sentences could be challenged is found to exist. Appellant's Brief at 2.

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State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006), trans. denied. Under the new advisory sentencing scheme, "a court may impose any sentence that is authorized by statute and permissible under the Indiana Constitution `regardless of the presence or absence of aggravating circumstances or mitigating circumstances.'" Id. (quoting Ind. Code

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