Scotty R. Irvin v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 28 2018, 10:50 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scotty R. Irvin, September 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-856
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff. Christofeno, Judge
Trial Court Cause No.
20C01-1612-MR-9
Mathias, Judge.
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[1] Scotty Irvin (“Irvin”) appeals his sentence of sixty-four years for a murder
conviction from the Elkhart Circuit Court. Irvin argues that the sentence is
inappropriate in light of his character and the nature of the offense.
[2] We affirm.
Factual and Procedural History
[3] Irvin was married to Tifanee Burrows (“Burrows”) for approximately nineteen
years. In late 2015, Burrows asked for a separation. In February of 2016, Irvin
moved out of the family’s home. Burrows filed for divorce in March of 2016.
After Burrows filed for divorce, she re-established contact with someone she
had dated in high school, Mark Huber (“Huber”). In May of 2016, Huber
moved in with Burrows. Huber found a job in Goshen, but did not have a
driver’s license and depended on Burrows for a ride to work. Burrows dropped
Huber off at a church near his workplace every day around 3:00 a.m. before
going to work herself. This had become the couple’s routine for approximately
six months.
[4] Burrows did not often communicate with Irvin. The two only saw each other
when Irvin picked up their son. However, when the former couple did
communicate, Irvin indicated that he was angry and blamed Huber for the
divorce. Irvin wanted Burrows to give him another chance. Burrows was
unwilling. On one occasion, Huber and Irvin had an angry exchange because
Irvin had stopped paying his child support to Burrows.
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[5] On November 21, 2016, Burrows dropped Huber off at the church near his
workplace around 3:00 am. Usually, Burrows would text Huber to let him
know that she had arrived at work. Huber would always respond to her
immediately, but on that day, there was no response. Burrows tried Huber’s cell
phone multiple times that day to no avail. When Burrows went back to the
church after work to pick Huber up, he was not there. Huber never showed up
to work that day, nor did he show up for work on the 22 nd. Burrows filed a
missing person report with police.
[6] Several days after he disappeared, on November 25, 2016, Huber’s body was
discovered by a utility worker during a routine check of the sewer system in
LaPorte County. Huber had been shot in the back of the head.
[7] When detectives learned of the animosity between Huber and Irvin, Irvin
became a suspect. When Irvin was questioned by detectives, he initially denied
having anything to do with Huber’s death. However, Irvin eventually admitted
that he had arrived at the church before Burrows dropped off Huber on
November 21, 2016. Irvin snuck up behind Huber while he sat at the church
prior to work and shot him in the back of his head. Irvin transported the body
to another county, discarded Huber’s body in the sewer, and burned the
victim’s belongings. He also admitted to sending himself a text message from
Huber’s phone saying “[y]ou can have your slut of wife back now,” which Irvin
forwarded to Burrows in an attempt to get back together after Burrows realized
Huber was missing. After confessing, Huber gave the murder weapon to police.
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[8] The State charged Irvin with murder. A bench trial was held on November 27-
28, 2017, and Irvin was found guilty as charged. He was sentenced to sixty-four
years in the Department of Correction. He appeals his sentence, arguing the
sentence is inappropriate in light of Irvin’s character and the nature of the
offense.
Discussion and Decision
[9] Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of a sentence imposed by the trial court. Trainor v.
State, 950 N.E.2d 352, 355–56 (Ind. Ct. App. 2011) (citing Anglemyer v. State,
868 N.E.2d 482, 491 (Ind. 2007)), trans. denied. This authority is implemented
through Indiana Appellate Rule 7(B), which provides that the court on appeal
“may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light
of the nature of the offense and the character of the offender.”
[10] Still, we must and should exercise deference to a trial court’s sentencing
decision because Rule 7(B) requires us to give “due consideration” to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions. Trainor, 950 N.E.2d at 355 (quoting
Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). Although we have
the power to review and revise sentences, the principal role of appellate 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 what we perceive to be a “correct” result in each
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case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (citing
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)), trans denied. The
appropriate question is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. Fonner v.
State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s burden on
appeal to persuade us that the sentence imposed by the trial court is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[11] The sentence for murder carries a range from forty-five years as a minimum, to
sixty-five years as a maximum, with fifty-five years as the advisory sentence.
Ind. Code § 35-50-2-3. The maximum sentence is generally reserved for the
worst offenses and offenders. Buchanan v. State, 699 N.E.2d 655, 657 (Ind.
1998). In the instant case, the trial court imposed a sixty-four year sentence.
Irvin asks this Court to revise his sentence to between forty-five and fifty-five
years, arguing that the nature and circumstances of the offense do not reflect
that his was the “very worst” crime of murder warranting a sentence of one
year below the maximum.
[12] With respect to the character of the offender, Irvin has no prior criminal history.
Also, Irvin eventually cooperated with investigators, confessed, and turned over
the murder weapon. His risk assessment showed a low likelihood of re-offense.
However, the trial court noted Irvin’s lack of remorse, which reflects poorly on
his character. Irvin argues no other character evidence.
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[13] However, the nature of Irvin’s offense was horrific. The record shows that Irvin
carefully planned and carried out the murder. Irvin observed his victim’s
routine. He arrived at the church to wait for Huber to be dropped off at the
church prior to work. Irvin was lying in the grass until he could sneak up on his
victim. Irvin shot his victim in the back of the head, and transported the
victim’s body to another county, dumping Huber’s body into a sewer. Irvin
burned the victim’s belongings to cover up his crime. Additionally, Irvin sent
himself a text message from the victim’s phone stating “you can have your slut
of a wife back now,” which he later showed to Burrows in an attempt to
rekindle their marriage.
[14] The nature of the offense and Irvin’s lack of remorse more than support the trial
court’s decision to impose a sixty-four year sentence. This Court is not
persuaded that the Defendant’s sentence is inappropriate.
[15] Affirmed.
Bailey, J., and Bradford, J., concur.
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