TURNER v. STATE (2026)

MEMORANDUM DECISION

[1] Justin L. Turner appeals his sentence for murder, robbery as a level 5 felony, and two counts of unlawful possession of a firearm by a serious violent felon as level 4 felonies. He also requests a corrected sentencing order and abstract of judgment. We affirm and remand.

Facts and Procedural History

[2] On March 30, 2023, Stephen Flynn traveled to an address, which was the address of a vacant house, to deliver pizza. Turner shot Flynn and drove away in Flynn's vehicle. Flynn died as a result of his injuries. Police found that the phone used to place the pizza order was associated with Turner and, using the GPS Flynn carried as a delivery driver, discovered Flynn's vehicle near a senior living facility where a relative of Turner lived. They also located Turner's vehicle and found a gun in the vehicle. Subsequent testing showed that a cartridge found at the scene where Flynn was shot was fired by the gun found in Turner's vehicle.

[3] On April 17, 2023, the State charged Turner with Count I, murder; Count II, felony murder; Count III, robbery as a level 2 felony; Count IV, unlawful possession of a firearm by a serious violent felon as a level 4 felony; and Count V, unlawful possession of a firearm by a serious violent felon as a level 4 felony. The court held a bench trial and found Turner guilty on Counts I, II, and III, and Turner pled guilty to Counts IV and V.

[4] At sentencing, the trial court merged Count II into Count I and reduced the robbery conviction under Count III from a level 2 felony to a level 5 felony. The court found that “clearly the harm that was suffered as part of the offense of murder goes well beyond what the State needs to prove for the purpose of demonstrating that a murder was committed.” Transcript Volume II at 194. It found that Turner had a significant criminal history, “there were 2 felony delinquent adjudications and then 5 felony convictions as an adult over the course of a good 20 years,” “Turner was given the opportunity to rehabilitate himself both on community corrections and on probation, and on several occasions violated the terms of his placement and did not successfully complete those placements,” and “there were disciplinary issues that ․ Turner has raised with the jail and with the sheriff's department while he's been incarcerated.” Id. at 194-195. The court also stated “the word that the State used is a word that is exactly accurate, ․ that Mr. Turner lured ․ Stephen into this situation,” “[t]his was a thought out approach that was planned in some fashion,” and “you set the situation up and I see that as an aggravating circumstance as well.” Id. at 195. The court stated that it had “a tough time finding any statutory mitigators” and that it would consider Turner's mental health, his “using alcohol ․ over a period of time,” and that he “had been living out of a car” as mitigators. Id. at 195-196. The court found that “the aggravating circumstances clearly outweigh the mitigating circumstances.” Id. at 196. The court sentenced Turner to concurrent terms of sixty-three years on Count I, four years on Count III, two years on Count IV, and two years on Count V. The court issued a written sentencing order and an abstract of judgment which indicated a conviction under Count III for robbery as a level 2 felony with a sentence of twenty-eight years.

Discussion

I.

[5] Turner asserts that the trial court's written sentencing order and abstract of judgment with respect to Count III “do not reflect the court's actual decision at sentencing.” Appellant's Brief at 8. The State “agrees that remand is appropriate to allow the trial court to correct the apparent scrivener's errors in the sentencing order and abstract of judgment.” Appellee's Brief at 11 n.1.

[6] The record reveals that, at Turner's sentencing hearing, the trial court verbally stated, “Count 3, Armed Robbery which we'll show as a level 5 felony,” and later stated, “[a]s to Count 3, the Robbery, ․ I'll sentence you to 4 years with 4 years executed with the Department of Corrections.” Transcript Volume II at 194, 196. However, the written sentencing order and abstract of judgment, with respect to Count III, state “F2” and “28 Year[s].” Appellant's Appendix Volume II at 166, 168. In light of the record, we remand for entry of a corrected sentencing order and abstract of judgment which reflect Turner's conviction for robbery as a level 5 felony and sentence of four years under Count III.¹ See Brewer v. State, 241 N.E.3d 19, 28 (Ind. Ct. App. 2024) (remanding to correct abstract of judgment).

II.

[7] Turner argues the trial court abused its discretion in sentencing him and, specifically, that the record does not support the finding that the harm “suffered by Flynn's family was greater than that which is inherent in the crime of murder.” Appellant's Brief at 10. He asserts “[t]he case should be remanded for re-sentencing.” Id. at 11. The State argues the trial court did not abuse its discretion in finding the harm suffered by the victim's family to be an aggravating circumstance and, even if the court considered an improper aggravator, any error is harmless.

[8] A court abuses its discretion in sentencing a defendant if it: (1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.” Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. “[E]ven when a trial court improperly applies an aggravator, a sentence enhancement may be upheld if other valid aggravators exist.” McCain v. State, 148 N.E.3d 977, 984 (Ind. 2020) (quoting Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002)). “[W]e will remand for resentencing if we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances.” Pickens, 767 N.E.2d at 535 (quoting McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001)).

[9] Even excluding the aggravating factor challenged by Turner, the trial court found other aggravating circumstances. The court found that Turner had a significant criminal history which included felonies. The court noted Turner's prior unsuccessful placements on community corrections and probation and that he had disciplinary issues. The presentence investigation report states that Turner, who was born in 1990, had two felony delinquency adjudications as a juvenile and five felony convictions and seven misdemeanor convictions as an adult. The court also noted that Turner “lured” Flynn, that he “set the situation up,” and that “[t]his was a thought out approach that was planned.” Transcript Volume II at 195. The record reveals that the trial court carefully considered the aggravating and mitigating circumstances and relied heavily on the aggravators not challenged by Turner. In light of the record and the trial court's statements, we cannot say that remand for resentencing is warranted. See Pickens, 767 N.E.2d at 535 (“As seen by the trial court's oral remarks at sentencing, the court relied mainly on the six proper aggravating circumstances in enhancing the defendant's sentence. Given the trial court's oral remarks at sentencing and the weight of the aggravating factors remaining, our confidence in the sentence is not diminished by the removal of the two improper aggravators.”).

[10] For the foregoing reasons, we affirm Turner's sentence and remand for a corrected sentencing order and abstract of judgment consistent with this opinion.

[11] Affirmed and remanded.

FOOTNOTES

1.   The entry of a corrected sentencing order and abstract of judgment will not impact Turner's aggregate sentence.

Brown, Judge.

Felix, J., and Scheele, J., concur.