Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 15 2014, 10:11 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDY M. FISHER GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARSHAWN A. MOORE, )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-1312-CR-623
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D06-1307-FA-27
August 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Marshawn Moore appeals his sentence following his conviction for burglary, as a
Class A felony. Moore presents 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.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 1, 2013, Moore and Raymond Richardson knocked on the door of Seth
Smith’s residence. Smith lived there with his stepmother, Jennifer Smith, and Michael
Faller, who is physically disabled and confined to a wheelchair. Smith opened the door
“about an inch or two” to see who it was, and Moore and Richardson forced their way
into the house. Tr. at 51. Moore and Richardson told Smith and Faller that Jennifer
owed them money, and they demanded that Smith give them money. Smith told the men
that Jennifer was not there, and both men struck Smith in the head.
Moore and Richardson then proceeded to punch and kick Smith and continued to
demand money from him. Moore said to Faller, “You’re lucky you’re in your wheelchair
because I can’t hit a man in a wheelchair.” Id. at 23. And Moore told Faller to call
Jennifer, which he did. Faller told Jennifer that Moore was looking for the money she
owed him and was beating up Smith. After they hung up, Jennifer called police. At
some point, Moore got a knife from the kitchen and threatened to hurt Smith with it.
Moore and Richardson then began to gather tools and a PlayStation II, but Richardson
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realized that the police had arrived, and Moore and Richardson dropped everything and
fled. Police officers quickly apprehended Moore.
The State charged Moore with burglary, as a Class A felony; robbery, as a Class B
felony; and battery, as a Class A misdemeanor. A jury found him guilty as charged. The
trial court entered judgment of conviction for burglary, as a Class A felony, and
sentenced Moore to thirty-five years executed. This appeal ensued.
DISCUSSION AND DECISION
Issue One: Abuse of Discretion in Sentencing
Moore first contends that the trial court abused its discretion when it sentenced
him. Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). 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. Id.
One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law . . . .
[However, b]ecause the trial court no longer has any obligation to
“weigh” aggravating and mitigating factors against each other when
imposing a sentence, . . . a trial court cannot now be said to have abused its
discretion in failing to “properly weigh” such factors.
Id. at 490-91.
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Moore contends that the trial court abused its discretion when it did not identify as
mitigating: his age; that an extended period of incarceration would be a hardship on his
three dependents; and his employment. The determination of mitigating circumstances is
within the trial court’s discretion. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App.
2007), trans. denied. The trial court is not obligated to accept the defendant’s argument
as to what constitutes a mitigating factor, and a trial court is not required to give the same
weight to proffered mitigating factors as does a defendant. Id. A trial court does not err
in failing to find a mitigating factor where that claim is highly disputable in nature,
weight, or significance. Id. An allegation that a trial court abused its discretion by
failing to identify or find a mitigating factor requires the defendant on appeal to establish
that the mitigating evidence is significant and clearly supported by the record. Id.
The trial court considered each of Moore’s proffered mitigators and rejected them.
In particular, the trial court found that Moore was “old enough to know better”; that
Moore put himself in the position of not being able to provide for his children during his
incarceration; and that it was “troubling that [he was] employed at the time” and still
committed this offense. Sent. Tr. at 12. On appeal, Moore has failed to demonstrate that
the proffered mitigators are significant and clearly supported by the record. We hold that
the trial court did not abuse its discretion when it sentenced Moore.
Issue Two: Inappropriate Sentence
Moore also contends that his sentence is inappropriate in light of the nature of the
offense and his character. Again, the trial court imposed a thirty-five year sentence. The
sentencing range for a Class A felony is twenty years to fifty years with the advisory
sentence being thirty years. Ind. Code § 35-50-2-4.
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Although a trial court may have acted within its lawful discretion in determining a
sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize[]
independent appellate review and revision of a sentence imposed by the trial court.”
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This
appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of
a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his
sentence is inappropriate in light of the nature of his offenses and his character. See App.
R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the
trial court’s recognition or non-recognition of aggravators and mitigators as an initial
guide to determining whether the sentence imposed was inappropriate. Gibson v. State,
856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the
appellate court that his or her sentence has met th[e] inappropriateness standard of
review.” Roush, 875 N.E.2d at 812 (alteration original).
And our supreme court has stated that “sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable deference.”
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing
scheme allows trial courts to tailor an appropriate sentence to the circumstances
presented. See id. at 1224. The principal role of appellate review is to attempt to “leaven
the outliers.” Id. at 1225. 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 facts that come to light in a given case.” Id.
at 1224.
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Moore first contends that his sentence is inappropriate in light of the nature of the
offense. Moore “concede[s] to the seriousness of these felony criminal acts” but alleges
that “all of the victims were either drug dealers and/or users.” Appellant’s Br. at 16. But
the character of the victims is not at issue here, and we disapprove of Moore’s attempt to
use the character of the victims to mitigate the nature of the offense. However, we accept
Moore’s concession regarding the “seriousness of these felony criminal acts,” id., and we
further note that the trial court found that Smith obviously “suffers from some mental
disability,” Sent. Tr. at 13. We cannot say that Moore’s sentence is inappropriate in light
of the nature of the offense.
As for his character, Moore points out that, as the trial court recognized, he has no
criminal history, maintains full-time employment, and provides for three children. But
the evidence shows that Moore was dealing in cocaine at the time of the offense. And
while Moore boasts having had regular, full-time employment, the presentence
investigation report shows that Moore was mostly unable to keep a job for more than a
few months before quitting or being laid off. Moore reported having six different jobs
between 2009 and 2013, all but one of which lasted six months or less, and he was not
employed during 2010. Finally, Moore was found to be at a moderate risk to reoffend
under the Indiana Risk Assessment System. We cannot say that Moore’s thirty-five-year
sentence is inappropriate in light of the nature of the offense or his character.
Affirmed.
BAILEY, J., and PYLE, J., concur.
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Marshawn A. Moore v. State of Indiana
Combined Opinion