Vaidik, J.
The State charged Marcus Lee McCain with murder for shooting a man in the head in a Gary restaurant, an incident that was captured on surveillance video. The State also filed a firearm enhancement, alleging that McCain used a firearm in the commission of murder. McCain argued self-defense during trial but requested a voluntary-manslaughter instruction at the end of trial. Thereafter, the jury found McCain guilty of voluntary manslaughter, and the trial court found that the firearm enhancement applied. The court then sentenced McCain to forty-five years: twenty-seven years for voluntary manslaughter enhanced by eighteen years for using a firearm.
McCain now appeals. He first argues that the trial court erred in imposing the firearm enhancement because he was acquitted of the offense (murder) that was alleged in the charging information for the enhancement. Because McCain doesn’t dispute that (1) voluntary manslaughter is an offense that qualifies for the firearm enhancement, (2) voluntary manslaughter is simply murder mitigated by evidence of sudden heat, (3) he used a firearm to kill the victim, and (4) he is the one who asked for the voluntary-manslaughter instruction at the end of trial, we conclude that the court did not err in imposing the firearm enhancement. McCain also argues that the court impermissibly enhanced his sentence based upon its personal disagreement with the jury’s verdict. Given that the court made it clear that it disagreed with the jury’s verdict and found as an aggravator that the killing was “cold blooded” and “callous”—which is directly at odds with the jury’s finding of sudden heat and therefore an improper aggravator as a matter of law—we choose to exercise our authority to review and revise sentences and remand this case with instructions for the court to sentence McCain to thirty-five years: twenty-five years for voluntary manslaughter enhanced by ten years for using a firearm.
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McCain’s sentencing hearing was held in April 2019. At the hearing, the trial court continued to make comments that it disagreed with the jury’s verdict, saying, for example, “The words that the video spoke to me w[ere] cold blooded and callous” and “that was the cleanest cut video I have ever seen of my impression of a murder.” The court identified numerous aggravators: (1) the shooting took place in a public environment with fourteen people in close proximity; (2) there were two children present during the shooting; (3) the defendant endangered at least one other person who was within the trajectory of the bullet a couple of seconds before the shooting; (4) Harris “was shot at point-blank range with the gun placed to [his] temple”; (5) the nature of the shooting was “particularly cold-blooded and callous despite the fact that [McCain] was convicted of Voluntary Manslaughter wherein heat of passion was found to be a mitigating circumstance”; (6) McCain has a criminal history, including two felony convictions; (7) McCain has previously been incarcerated for thirty days, “which has failed to deter him from a life of crime”; (8) McCain has seven to eight contacts with the criminal-justice system, “which reflect adversely on [his] character in that he is not able to live a law-abiding life;” (9) a Facebook post from McCain adversely reflects on his character, as it shows that he invites “violence or conflict”…; and (10) McCain is in need of correctional or rehabilitative treatment that can only be provided by a penal facility. The court identified several mitigators: (1) McCain expressed remorse; (2) approximately thirty people submitted letters on McCain’s behalf; … (3) McCain has a two-year-old child; however, the court didn’t give this much weight either because McCain wasn’t court-ordered to pay support for his child; and (4) McCain completed some courses in jail, which was “somewhat of a mitigating factor.” …
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McCain makes various arguments why we should vacate his firearm enhancement. We find no merit to any of them. … The trial court did not err in imposing the firearm enhancement.
… “While a trial judge is not prohibited from expressing his personal disagreement with a jury’s verdict, a trial judge is prohibited from enhancing a defendant’s sentence based upon his personal disagreement with the verdict.” Hamman v. State, 504 N.E.2d 276, 278 (Ind. 1987). …
Notwithstanding these comments, the judge included a statement at the end of its sentencing order that although the video “depicted a cold-blooded callous execution type shooting,” he was “not punishing McCain for the crime of Murder in the Voluntary Manslaughter sentence.” But the judge did punish McCain for the crime of murder, at least in part. … Although the jury found the existence of sudden heat, the judge found as an aggravator that the killing was “cold-blooded” and “callous.” The judge’s finding that the killing was “cold-blooded” is clearly at odds with the jury’s finding that the killing was done in sudden heat. … It is apparent that the judge enhanced McCain’s sentence, in part, to compensate for what he believed to be an erroneous verdict. See Gambill v. State, 436 N.E.2d 301, 305 (Ind. 1982).
When a trial court relies on an improper aggravator, an appellate court has several options, including (1) remanding the case to the trial court for a new sentencing determination or (2) exercising our authority to review and revise the sentence pursuant to Indiana Appellate Rule 7(B). Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007), reh’g denied. We find that the first option is not appropriate here given the trial judge’s outspoken disagreement with the jury’s verdict. …
… We therefore remand this case with instructions that McCain’s sentence be vacated and that the trial court sentence him to thirty-five years: twenty-five years for voluntary manslaughter enhanced by ten years for using a firearm.
Affirmed in part, reversed and remanded in part.
Najam, J., concurs.
Tavitas, Judge, concurring in part and dissenting in part.
I agree with the outcome of the majority’s decision regarding the gun enhancement. There was a variance here between the charging information and the evidence presented. …
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As for the reduction in McCain’s sentence, I respectfully disagree. …
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The trial court was very specific regarding the aggravators and mitigators in this case. The trial court made it clear that it was following the law and basing the sentence upon those aggravators and mitigators. … I do not find that the trial court abused its discretion, especially in light of the fact that the trial court did not impose the maximum sentence. Moreover, I do not find this sentence inappropriate. I would affirm.