Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Dec 18 2013, 9:07 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDRE MOTON, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1305-CR-220
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Michael J. Lewis, Judge
Cause No. 84D06-1110-MR-3437
December 18, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Andre Moton appeals his sentence for robbery as a class A felony and attempted
carjacking as a class B felony. Moton raises two issues which we consolidate and restate
as whether his sentence is inappropriate in light of the nature of the offense and his
character. We affirm.
FACTS AND PROCEDURAL HISTORY1
Moton, who was born on May 13, 1994, was committed to the Gibault Children’s
Services Facility. On October 24, 2011, Moton and two other juveniles at the facility
beat another individual and then left the facility. The three eventually approached Aaron
Drumm as he was loading groceries in his car in the Walmart parking lot. Drumm
entered his vehicle, and one of the juveniles blocked the door and hit Drumm in the head
with his fist while another juvenile crawled over Drumm, sat in the passenger seat, and
began hitting Drumm in the side of his head and face with his fist. Moton attempted to
take Drumm’s vehicle by striking him, entering his vehicle, and/or attempting to remove
him from the vehicle. The three individuals left while Drumm was still in his vehicle.
They then walked to a nearby White Castle Restaurant where they beat Kevin
Sherrill and stole his truck. Moton forcefully took a cell phone and wallet from Kevin
Sherrill resulting in serious bodily injury of a laceration and broken hip and/or pelvis.
The police chased Moton who was driving Sherrill’s truck with the two other
juveniles. Moton struck a concrete median, overcorrected, and struck a light pole and
several parked vehicles. He ran from the vehicle and was apprehended by police. The
1
On appeal, Moton cites to an Indiana State Police Incident Report and an Indiana State Police
Supplemental Case Report for his statement of facts. We rely on these documents as well as Moton’s
brief for our recitation of the facts.
2
two other juveniles were injured in the collision, and one of the juveniles later died from
his injuries.
On October 28, 2011, the State charged Moton with Count I, felony murder; Count
II, robbery resulting in serious bodily injury as a class A felony; Count III, carjacking as a
class B felony; Count IV, attempted carjacking as a class B felony; Count V, resisting
law enforcement as a class D felony; Count VI, escape as a class C felony; Count VII,
resisting law enforcement as a class A misdemeanor; and Count VIII, battery resulting in
bodily injury as a class A misdemeanor.
On September 17, 2012, the parties filed a plea agreement in which Moton agreed
to plead guilty to Count II, robbery resulting in serious bodily injury as a class A felony,
and Count IV, attempted carjacking as a class B felony, and the State agreed to dismiss
the remaining counts. The parties agreed that the sentences for Counts II and IV would
run concurrent with one another and any sentence Moton received would be capped at
thirty-five years. At sentencing, the court stated:
Weighing aggravators and mitigators, I’ll go over aggravators first. The
fact that you plead guilty to this crime I’m not using as a mitigator because
you were giving [sic] the benefit of all those other counts being dismissed.
I do look at your prior criminal history, even though it was all committed as
a juvenile, . . . there’s force as the prosecutor said is associated with each of
these arrest [sic], even though some of these cases were dismissed. Battery
on a police officer, battery on another, disorderly conduct, battery resulting
in bodily injury, resisting law enforcement, false informing. I look at this
crime itself. We had an individual attacked at Walmart, Mr. Drum[m], then
we had an individual attacked at Stake [sic] an [sic] Shake, Mr. Sherrill.
Which he had some disabilities before but he’s a lot more disabled now
because of the attack. I do look at some of your problems as child, as a, as
a child and, I mean you’re still basically a child, I mean some people will
say eighteen’s (18) a child some people say twenty one (21). You have
ADHD, you have post traumatic stress disorder from things that happen
[sic] to you as child. I’ve read the reports, I’ve read Dr. Murphy’s report,
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I’ve read the other documents that said you have oppositional defiance
disorder. Weighing everything, the mitigators and the aggravators, I think
they balance each other out.
March 15, 2013 Transcript at 52-53. The court sentenced Moton to thirty years on Count
II, robbery resulting in serious bodily injury as a class A felony, and ten years on Count
IV, attempted carjacking as a class B felony, and ordered the sentences to be served
concurrent with each other for an aggregate sentence of thirty years. The court also
recommended that Moton participate in mental health counseling at the Indiana
Department of Correction.
DISCUSSION
The issue is whether Moton’s sentence is inappropriate. Indiana Appellate Rule
7(B) provides that this court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Moton concedes that “[a]fter beating another boy at the Gibault School, [he] and
two other juveniles escaped, beat a man during an unsuccessful carjacking, [] beat
another man during a later successful carjacking,” that “[w]hen police began pursuing the
stolen truck, which Moton was driving, the truck crashed, injuring Moton and [one of the
juveniles] and ultimately killing” the other juvenile, and that Sherrill suffered serious
bodily injuries. Appellant’s Brief at 15. However, Moton argues that the record does not
reflect the extent of the injuries to Drumm or the other victim or the exact roles of each of
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the three boys in each offense except that Moton was driving the stolen car when it
crashed. With respect to his character, he argues that he was seventeen years old at the
time of the offense, was functioning in the low normal range of intelligence, his juvenile
misconduct is minor in comparison to the present offenses, he suffered from ADHD,
depression, and oppositional defiant disorder, and he is remorseful for these offenses.
Moton requests this court to reverse his sentence and impose an aggregate sentence of no
more than twenty years imprisonment.
Our review of the nature of the offense reveals Moton and two others approached
Drumm as he was loading groceries in his car in the Walmart parking lot. Moton
attempted to take Drumm’s vehicle by striking him, entering his vehicle, and/or
attempting to remove him from the vehicle. Moton forcefully took a cell phone and
wallet from Sherrill resulting in serious bodily injury to Sherrill, that being laceration and
broken hip and/or pelvis.
Our review of the character of the offender reveals that while Moton pled guilty to
robbery resulting in serious bodily injury as a class A felony and attempted carjacking as
a class B felony, the State dismissed charges of felony murder, carjacking as a class B
felony, resisting law enforcement as a class D felony, escape as a class C felony, resisting
law enforcement as a class A misdemeanor, and battery resulting in bodily injury as a
class A misdemeanor, and the plea agreement provided that the sentences would run
concurrent with each another and any sentence would be capped at thirty-five years.
As a juvenile, Moton was charged with battery resulting in bodily injury in 2009,
but the charge was dismissed. That same year, Moton was charged with disorderly
5
conduct and criminal recklessness, he admitted to disorderly conduct and was placed on
probation, and the charge of criminal recklessness was dismissed. In April 2011, Moton
was charged with battery resulting in bodily injury against a law enforcement officer,
disorderly conduct, criminal trespass, and resisting law enforcement. The charge of
battery on a police officer was dismissed, and Moton admitted to the other counts. He
was placed on probation with “In House Arrest,” and a probation violation was filed
because of new charges. Appellant’s Appendix at 125. In August 2011, the State
charged Moton with resisting law enforcement and false informing, and he entered an
admission and was placed at the Gibault facility in Terre Haute. At the time of the
presentence investigation report, Moton was eighteen years old and had three
adjudications as a juvenile which included six misdemeanor offenses.
Moton has been in counseling and treatment since he was twelve years old. The
presentence investigation report reveals that Moton was diagnosed with ADHD,
depression, and PTSD and has been on ongoing medication for all. The PTSD was a
result of a rape when Moton was eleven years old by the sixteen-year-old son of one of
his mother’s boyfriends. Moton also received inpatient treatment for suicidal ideation.
He was suspended or expelled from Merrillville High School.
Under the circumstances and after due consideration of the trial court’s decision
and of the record, we conclude that Moton has not sustained his burden of establishing
that his advisory sentence of thirty years for robbery as a class A felony to be served
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concurrent with his advisory sentence of ten years for attempted carjacking as a class B
felony is inappropriate in light of the nature of the offense and his character.2
For the foregoing reasons, we affirm Moton’s sentence for robbery as a class A
felony and attempted carjacking as a class B felony.
Affirmed.
ROBB, C.J., and BARNES, J., concur.
2
Moton also argues that the trial court abused its discretion by failing to find his age and difficult
childhood as mitigating circumstances, by finding Sherrill’s injuries to be an aggravating circumstance
because those injuries were an element of the robbery count, and by finding that Sherrill had some
disabilities before but was now more disabled because of the attack, when the record contains no evidence
of the extent of Sherrill’s injuries before or after the offense. However, “even if the trial court is found to
have abused its discretion in the process it used to sentence the defendant, the error is harmless if the
sentence imposed was not inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007),
trans. denied; see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that in the absence of
a proper sentencing order, we may either remand for resentencing or exercise our authority to review the
sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind.
Ct. App. 2013) (holding that “even if the trial court did abuse its discretion by failing to consider the
alleged mitigating factor of residual doubt, this does not require remand for resentencing”), trans. denied.
Accordingly, we need not discuss Moton’s contentions that the court abused its discretion in sentencing
him given that we have determined that his sentence is not inappropriate.
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