Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Feb 26 2013, 8:55 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KELLY A. MIKLOS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JERRY L. MOORE, )
)
Appellant-Defendant, )
)
vs. ) No. 90A05-1207-CR-370
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1112-FB-28
February 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Jerry L. Moore appeals his fifteen-year executed sentence for Class B felony
dealing in a schedule III controlled substance. He contends that the trial court failed to
consider certain mitigating factors and his sentence is inappropriate in light of the nature
of the offense and his character. Because Moore has failed to persuade us that the trial
court abused its discretion or that his sentence is inappropriate in light of the nature of the
offense and his character, we affirm.
Facts and Procedural History
On September 20, 2011, Moore sold four Dihydrocodeinone tablets, a schedule III
controlled substance, to a confidential informant. The next day, Moore sold morphine, a
schedule II controlled substance, to the same confidential informant. The State charged
Moore with Count I: Class B felony dealing in a schedule III controlled substance, and
Count II: Class B felony dealing in a schedule II controlled substance. Moore accepted a
plea agreement and pled guilty to Count I, and the State dismissed Count II. Moore’s
maximum executed sentence was also capped at fifteen years.
At the sentencing hearing, the trial court sentenced Moore to a fifteen-year
executed sentence, noting his extensive criminal history and his moderate risk to
reoffend. Fifty-nine-year-old Moore’s criminal history spans fifty years and includes
nineteen felonies and fourteen misdemeanors from three different states. PSI p. 4-11.
The trial court did not note any mitigating factors in reaching its decision.
Moore now appeals his sentence.
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Discussion and Decision
Moore contends that the trial court did not properly consider certain mitigating
factors in his sentencing. He also contends that his sentence is inappropriate in light of
the nature of the offense and his character.
I. Abuse of Discretion
Moore challenges the trial court’s failure to consider his guilty plea, his poor
health, and the undue hardship his family would suffer from his incarceration as
mitigating factors. Sentencing decisions rest within the sound discretion of the trial
court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory range, it is subject
to review only for an abuse of discretion. Id. An abuse of discretion will be found where
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.
A trial court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3) entering a
sentencing statement that omits reasons that are clearly supported by the record; or (4)
entering a sentencing statement that includes reasons that are improper as a matter of law.
Id. at 490-91. Because 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
491. If a trial court abuses its discretion, “remand for resentencing may be the
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appropriate remedy if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy support in the
record.” Id.
Determining what is a proper mitigating circumstance is within the discretion of
the trial court. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007), trans. denied. The
trial court does not have to accept the defendant’s arguments as to what the mitigating
factors are, id., and “[a]n allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record.” Carter v. State, 711 N.E.2d 835, 838
(Ind. 1999).
Moore first argues that the trial court erred in not considering his guilty plea to be
a mitigating factor. While we have long realized that pleading guilty deserves some
mitigating weight, “a plea is not necessarily a significant mitigating factor.” Cotto v.
State, 829 N.E.2d 520, 525 (Ind. 2005) (emphasis added). Additionally, its significance
is lessened if there is substantial evidence of the defendant’s guilt or the defendant
receives a substantial benefit from the plea. See Wells v. State, 836 N.E.2d 475, 479 (Ind.
Ct. App. 2005) (“[A] guilty plea does not rise to the level of significant mitigation where
the defendant has received a substantial benefit from the plea or where the evidence
against him is such that the decision to plead guilty is merely a pragmatic one.”), trans.
denied. In this case, there was substantial evidence of Moore’s guilt, including audio
recordings and visual surveillance of the controlled buys by the confidential informant.
By pleading guilty, Moore was able to have a Class B felony charge dismissed and his
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maximum possible sentence for the remaining charge decreased by five years. The
benefit Moore gained was substantial, so the trial court did not err in failing to consider
his guilty plea as a mitigating factor.
Moore next contends that the trial court erred in failing to consider his poor health
as a mitigator. Moore argues that he suffers from a torn aorta, lower abdominal pain,
blood in his urine, Hepatitis C, and mental illness, and he recently had a heart attack that
delayed the sentencing in this case. Appellant’s App. p. 206; Tr. p. 69. However, at the
sentencing hearing, Moore was asked, “have you ever been treated for any mental illness
or do you now suffer from any mental or emotional disability?” Tr. p. 46. Moore
answered “No, sir.” Id. Moore also was suffering from his medical conditions before his
arrest, Appellant’s App. p. 217, but that did not stop him from committing the two
offenses for which he was arrested, or the multiple offenses he committed in the past.
Moore’s counsel even admitted at trial that he was “not sure if [Moore’s health] mitigates
the offense . . . .” Tr. p. 71. Because Moore has failed to show that his health was a
significant mitigating factor that was clearly supported by the record, we hold that the
trial court did not err.
Finally, Moore contends that the trial court should have considered the undue
hardship that his incarceration would cause on his family as a mitigating factor. We
disagree. “Absent special circumstances showing that the hardship to [the defendant] is
‘undue,’ a trial court does not abuse its discretion by not finding this to be a mitigating
factor.” Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans. denied.
While Moore’s wife does have a number of health problems, she was receiving disability
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payments and had moved in with her daughter. Moore has therefore failed to show that
his support of his wife is necessary for her well-being, and any hardship on her from his
incarceration as a result would be “undue.” We therefore find that the trial court properly
did not consider this to be a mitigating factor.
The trial court did not abuse its discretion in determining that there were no
mitigating factors when sentencing Moore.
II. Inappropriate Sentence
Moore also contends that his fifteen-year executed sentence is inappropriate.
Although a trial court may have acted within its lawful discretion in imposing a sentence,
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate
review and revision of sentences through Indiana Appellate Rule 7(B), which provides
that a 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.” Reid v. State, 876 N.E.2d 1114,
1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). The defendant has the burden of
persuading us that his sentence is inappropriate. Id. (citing Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006)).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
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counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and a myriad of other factors that come to light in a
given case. Id. at 1224.
The sentencing range for a Class B felony is six to twenty years, with ten years
being the advisory term. Ind. Code § 35-50-2-5. Here, the trial court sentenced Moore to
an executed sentence of fifteen years in the DOC. This sentence is within the statutory
range.
Regarding the nature of the offense, there is nothing in the record that indicates
that this sentence is inappropriate. Moore sold controlled substances to a confidential
informant on two different occasions. There is not much detail in the record about the
circumstances of the sales; however, Moore’s self-serving statements after the fact that
the confidential informant “hounded” him and “played on his sympathies,” Appellant’s
Br. p. 12, are completely devoid of support in the record. This appears to just be an
attempt by Moore to lessen his culpability, and it does nothing to lessen the nature of the
offense.
Regarding Moore’s character, he has an extensive criminal history that spans fifty
years and includes nineteen felonies and fourteen misdemeanors from three different
states. Moore began committing crimes when he was nine and joined a gang when he
was twelve. He also admits that he is still associated with that gang in an “advisor”
capacity due to his age and inactive status. Appellant’s App. p. 216. Moore also has
failed to take responsibility for this offense, claiming in a letter to the court that he was
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not guilty and was entrapped by the confidential informant. Id. at 215. Moore has not
convinced us that his character warrants a reduction in his sentence.
After due consideration of the trial court’s decision, we cannot say that Moore’s
fifteen-year executed sentence is inappropriate in light of the nature of the offense and his
character.
Affirmed.
BAILEY, J., and BROWN, J., concur.
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Jerry L. Moore v. State of Indiana
Combined Opinion