KIZER v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Dyequan Shykiel-Malik Kizer appeals his sentence following his guilty plea to voluntary manslaughter, as a Level 2 felony. We affirm.

Issues

[2] Kizer raises two issues for our review:

1. Whether the trial court abused its discretion when it sentenced him.

2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

Facts and Procedural History

[3] In June 2023, Dashawn Hamilton lived with her “best friend” Darius Sims. Appellant's App. Vol. 2 at 24. On June 9, Hamilton and Sims got into an argument, and Sims asked Hamilton to “pack up her belongings and leave the residence.” Id. Hamilton then took her two children to the car and began to pack.

[4] While she did this, Hamilton called Kizer, who is the father of her children, on speakerphone. Sims was helping Hamilton with her belongings, and Sims and Kizer “began to exchange words” and shout “obscenities at each other.” Id. After the call ended, Hamilton and Sims went back into the apartment to find Hamilton's keys. Hamilton's children remained in the car, which was parked “outside of the residence[.]” Id.

[5] Hamilton and Sims were standing in the living room when Kizer “appeared out of nowhere unannounced[.]” Id. Kizer then “pulled out a gun” and shot Sims once in the chest. Id. Kizer “fled” from the apartment, and Hamilton called 9-1-1 and “attempted to render aid” to Sims. Id. at 25. Sims died as a result of the gunshot wound.

[6] The State charged Kizer with murder and alleged that he had used a firearm in the commission of an offense. Thereafter, the State and Kizer entered into a plea agreement pursuant to which Kizer agreed to plead guilty to voluntary manslaughter, as a Level 2 felony, in exchange for the dismissal of the murder charge and firearm enhancement. The parties agreed to leave sentencing open to the trial court, and they attached a stipulated factual basis to the plea. The court accepted the guilty plea and entered judgment of conviction accordingly.

[7] Following a sentencing hearing, the court identified as aggravating the “nature and circumstances of the crime,” which the court found to shock the “conscious [sic] of any reasonable person,” and the “harm suffered by the witnesses, including [Kizer's] own children and their mother.” Tr. Vol. 2 at 44-45. And the court identified as mitigating the fact that Kizer had no criminal history, that he was unlikely to commit another crime, and that he had pleaded guilty. The court then sentenced Kizer to twenty years in the Department of Correction. This appeal ensued.

Discussion and Decision

Issue One: Abuse of Discretion in Sentencing

[8] Kizer first asserts that the trial court abused its discretion when it sentenced him. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied. A trial court abuses its discretion in sentencing if it does any of the following:

(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.”

Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)).

[9] The sentencing range for a Level 2 felony is ten years to thirty years, with an advisory sentence of seventeen and one-half years. See Ind. Code § 35-50-2-4.5. Following a sentencing hearing, the court identified aggravators and mitigators and sentenced Kizer to a slightly enhanced sentence of twenty years. On appeal, Kizer contends that the court erred when it identified both the nature and circumstances of the offense and the harm to Hamilton and her kids as aggravators. We address each argument in turn.

Nature of the Offense

[10] Kizer first asserts that the court erred when it identified the nature of the offense to be aggravating. As this Court has previously stated:

[W]hen evaluating the nature and circumstances of the offense, “the trial court may properly consider the particularized circumstances of the factual elements as aggravating factors.” McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001). The trial court must then “detail why the defendant deserves an enhanced sentence under the particular circumstances.” Vasquez v. State, 762 N.E.2d 92, 98 (Ind. 2001).

Weaver v. State, 189 N.E.3d 1128, 1135 (Ind. Ct. App. 2022), trans. denied.

[11] Kizer specifically contends that the court erred when it found that the nature of the offense “ ‘shocks the conscious [sic] of any reasonable person’ ” because that finding “is not particularized to Kizer's conduct[.]” Appellant's Br. at 10. He maintains that the court's finding “fails to differentiate it” from other violent acts and “provides no true basis for enhancing the sentence.” Id.

[12] However, during sentencing, the court specifically found that the incident began with a phone call but that Kizer made the “decision to take a gun” with him. Tr. Vol. 2 at 45. In other words, the court noted that Kizer and Sims had engaged in a verbal altercation over the phone and that, following that argument, Kizer chose to take a gun with him to Sims's house. Thus, it was the particularized fact that Kizer responded to a verbal argument by choosing to take a firearm to Sims's residence that the court identified as aggravating. That fact-specific circumstance was properly considered by the trial court, and the court did not err when it identified the nature and circumstances of the offense as an aggravator.

Harm to Hamilton and Children

[13] Kizer next contends that the court erred when it identified the harm to Hamilton and her children as an aggravating factor. As for Hamilton, Kizer argues that she did not provide any statements “regarding the effects of this incident” on her and, as such, the court's finding is “an improper generality” that is “unsupported by the record.” Appellant's Br. at 11-12. But the record is clear that Hamilton witnessed the father of her children shoot and kill her best friend. While Hamilton may not have testified that witnessing the event caused her harm, it goes without saying that any person who sees something like that will suffer harm. As such, the court did not err when it identified the harm to Hamilton as an aggravating factor.

[14] However, we agree with Kizer that there is no evidence in the record to demonstrate that the children were aware of the offense. Rather, at the time Kizer shot Sims inside Sims's apartment, the children were outside in Hamilton's car. And, contrary to the State's assertion, there is no indication that the children heard, or were even within hearing distance of, the shooting. The court therefore erred when it identified the harm to Hamilton's children as part of the aggravator. In any event, “where the trial court abuses its discretion in sentencing a defendant, we need not remand for resentencing if we can ‘say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.’ ” Vega v. State, 119 N.E.3d 193, 203 (Ind. Ct. App. 2019) (quoting Anglemyer, 868 N.E.2d at 491). And, here, we can say with confidence that the court would have imposed the same slightly enhanced sentence even if it had only considered the nature and circumstances of the offense and the harm to Hamilton. The court did not abuse its discretion when it sentenced Kizer.

Issue Two: Appropriateness of Sentence

[15] Kizer next contends that his sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he Court 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.” This Court has held that “[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has previously explained that:

The principal role of appellate review should be to attempt to leaven the outliers ․ but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[16] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[17] As discussed above, Kizer faced a possible sentence of thirty years. And, following a sentencing hearing, the court sentenced him to a slightly enhanced term of twenty years. On appeal, Kizer contends that his sentence is inappropriate in light of the nature of the offense because “the record contains no facts which would show that the offense here went beyond the elements of” voluntary manslaughter. Appellant's Br. at 14. And he asserts that his sentence is inappropriate in light of his character because he has a “complete lack of prior criminal history,” he is “unlikely to commit further offenses,” and “he accepted guilt by way of a plea.” Id.

[18] Be that as it may, Kizer has not met his burden on appeal to show that his sentence is inappropriate. Regarding the nature of the offense, Kizer engaged in a verbal altercation with Sims then escalated the situation by taking a gun to Sims's house, entered unannounced, and shot an unarmed Sims in front of Hamilton. Kizer has not presented compelling evidence showing any restraint or otherwise portraying the nature of the offense in a positive light. See Stephenson, 29 N.E.3d at 122.

[19] As for his character, we acknowledge that Kizer does not have a criminal history. But the fact that Kizer responded to a fight during a phone conversation by taking a gun to Sims's house and shooting him reflects poorly on his character. Kizer has not presented compelling evidence of substantial virtuous traits or persistent examples of good character to warrant a revision to his sentence. Kizer's sentence is not inappropriate in light of the nature of the offense or his character.

Conclusion

[20] The court did not abuse its discretion when it sentenced Kizer, and his sentence is not inappropriate. Therefore, we affirm his sentence.

[21] Affirmed.

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.