from the Marion Superior Court The Honorable Grant Hawkins,
Judge Trial Court Cause No. 49G05-1601-MR-2267
ATTORNEY FOR APPELLANT Darren Bedwell Marion County Public
Defender Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Samuel J. Dayton Deputy Attorney General
Tyler Miller appeals his sentence for murder, attempted
robbery as a level 5 felony, and robbery as a level 3 felony.
He also requests a corrected abstract of judgment and
sentencing order. We affirm and remand.
and Procedural History
On January 15, 2016, Khushwinder Singh was working as a clerk
at the Cumberland Express Mart. Brittany Thompson, who
planned to begin working at the store the following day, was
also present. At approximately 7:00 p.m., a man entered the
store, purchased a cigar, and left. A few minutes later,
Miller and a third man entered the store, displayed firearms,
and stated they were robbing the store. Singh was on the
phone, "said something in his language," and set
the phone down. Transcript Volume II at 119. Miller shot
Singh, the bullet perforated Singh's heart, and Singh
grabbed his chest and dropped to the floor. The men told
Thompson to open the register, she was not able to open it,
and the men left the store. Singh died within minutes as a
result of the gunshot wound.
At approximately 7:51 p.m., Miller used his phone to access a
news article titled "Man dies in far east side
shooting." State's Exhibit 141. At approximately
9:20 p.m., Miller and one of the other men entered a Rich Oil
station on Brookville Road, and one of the men commanded the
store clerk to open the register and struck him on the head
with a gun. The clerk opened the register, and the men took
the cash and exited the store. The police located the vehicle
in which the men had fled at 9:32 p.m., set up a perimeter,
and soon afterwards apprehended the three men.
On January 20, 2016, the State charged Miller with: Count I,
murder; Count II, felony murder; Count III, attempted robbery
resulting in serious bodily injury as a level 2 felony; Count
IV, robbery resulting in bodily injury as a level 3 felony;
and Count V, battery by means of a deadly weapon as a level 5
felony. The jury found him guilty as charged.
The court entered judgments of conviction for murder under
Count I, robbery as a level 5 felony as a lesser included
offense under Count III, and robbery as a level 3 robbery
under Count IV. At sentencing, the prosecutor asked for a
sentence of sixty years for the murder and an aggregate
sentence of seventy-five years and argued Miller was the
person who shot Singh. Miller's counsel asked for the
minimum sentence on each count and concurrent sentences and
argued that Miller was seventeen years old when the crimes
occurred, had no prior convictions, graduated from high
school, was employed, and was the primary caretaker for his
mother. The court stated that Miller was the shooter, the
shooting was needless, and that, given that he had no prior
convictions, was a high school graduate, and was employed, it
was sentencing him to the advisory for murder. The court
noted that Miller was involved with the robbery within two
hours of the shooting and sentenced him to consecutive
sentences of fifty-five years on Count I, five years on Count
III, and twelve years on Count IV, for an aggregate sentence
of 72 years.
Miller presents two arguments with respect to Count III: the
abstract of judgment and sentencing order should be corrected
to reflect his attempted robbery conviction, and his sentence
should be reduced in light of Ind. Code § 35-50-2-1.3.
Correction of Abstract of Judgment and Sentencing Order
on Count III
Miller observes the trial court's sentencing order and
abstract of judgment show a conviction for robbery under
Count III but that the jury found him guilty of attempted
robbery. The State charged Miller with attempted robbery
under Count III, the court instructed the jury on attempted
robbery, and the jury found him guilty of attempted robbery.
We remand for an amended abstract of judgment and ...