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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: MICHAEL C. BORSCHEL Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

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

No. 49A02-0610-CR-882

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jane Magnus-Stinson, Judge Cause No. 49G06-0507-MR-116947

May 15, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Shaun Matthews 1 appeals the sentence imposed by the trial court after he pleaded guilty to reckless homicide, a class C felony. We affirm. ISSUES 1. Whether the trial court abused its discretion and committed fundamental error when it referred to evidence not in the record. 2. Whether the eight-year sentence imposed for reckless homicide is inappropriate. FACTS On July 7, 2005, Christopher Bridges was shot and killed on the grounds of the Newport Apartments. On July 14, 2005, the State charged Matthews and co-defendant Percy Bronson with the murder of Bridges. On June 27, 2006, Matthews tendered to the trial court a written plea agreement with the State whereby he would plead guilty to the lesser included offense of reckless homicide, a class C felony, with sentencing to be argued to the trial court. At the plea hearing, on July 12, 2006, the State asserted that it would have proved beyond a reasonable doubt that on or about July 7, 2005, deputies with the Marion County Sheriff's Department were dispatched to a person shot in the Newport Townhomes addition in Marion County, Indianapolis, Indiana. When they arrived they learned that an individual, Christopher Bridges, had been shot and taken to the hospital, and they spoke to witnesses. They spoke to Kevin Smith, who indicated that he was in a '91 tan Chevy Caprice, and that the victim, . . . Bridges, was with Bryant Jackson at a Citgo gas station. While there they learned

1

Some filings in the record reflect the spelling of Matthews' forename as "Shawn."

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that the defendant, . . . Matthews, was at the Newport Apartments and that previously that . . . Matthews and . . . Bridges had had some altercations. . . . Bridges then went to the Newport Townhomes addition where he saw the defendant, . . . Matthews. Got out of his vehicle and approached . . . Matthews. . . . Bridges was unarmed. As he approached . . . Matthews, . . . Matthews pulled a firearm and fired two to three shots, striking . . . Bridges, recklessly shooting at or near . . . Bridges, causing his death. (Tr. 13-14). When the trial court asked Matthews if this was true, he answered, "Yes." (Tr. 14). The trial court then accepted Matthew's plea and found him guilty of reckless homicide, a class C felony. The trial court held the sentencing hearing on July 27, 2006. The trial court took judicial notice of letters written to Matthews from Percy Bronson -- who was in jail charged with the shooting death of Joshua McAtee and whom Bridges had identified as having fired gunshots at McAtee. 2 Matthews admitted that Bronson had asked him to ensure that Bridges did not testify against him. Matthews also testified that, on the

evening of July 14, 2005, after Bridges had gotten out of his vehicle and approached him, he shot Bridges, who "was not armed" and "didn't have a shirt on." (Tr. 30, 44). Matthews further testified that he saw no weapon in Bridges' hand or tucked in the waist of his pants when he fired "two shots" at Bridges from a distance of "around eight feet." (Tr. 41). Matthews also admitted that he had lied when he informed the writer of the presentence investigation report ("PSI") that he had never used marijuana and admitted that he had "a true finding for Possession of Marijuana." (Tr. 36).

2

The trial court having granted Matthews' request that judicial notice be taken of these letters, but they are not included in his Appendix. The substance of these letters is summarized in the probable cause affidavit as being the solicitation by Bronson of Matthews "to make sure . . . Bridges does not appear to testify at trial." (App. 18).

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The trial court made a lengthy statement from the bench in explaining its imposition of an eight-year sentence. The trial court found as a mitigating circumstance that Bridges had been the initial aggressor and had provoked the incident, but it noted that "a lot of the mitigation" in that regard was reflected in the plea agreement that allowed Matthews to plead to the lesser-included offense of reckless homicide. (Tr. 101). It found no "particular mitigation or aggravation in [his] criminal history." Id. It found that Matthews was a member of a gang but did not expressly state this was an aggravating factor. The trial court specifically found two aggravating circumstances: that Bridges was unarmed when Matthews shot him, using "excessive force" to respond with a gun to a man there for "a fistfight"; and that Matthews had "lied about [his] drug use." (Tr. 100, 99, 101). The trial court then found "the aggravators outweigh[ed] the mitigators" and sentenced Matthews to an eight-year term for the class C felony of reckless homicide. Id. DECISION 1. Due Process Matthews argues that the trial court's sentence is "fundamentally erroneous because the material evidence upon which the trial court based its maximum sentence came from an unnamed witness

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