MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Jan 11 2016, 6:19 am
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, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Moberg, January 11, 2016
Appellant-Defendant, Court of Appeals Case No.
79A02-1506-CR-630
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Laura W. Zeman,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D04-1311-FD-293
Baker, Judge.
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[1] After he was convicted of class D felony possession of a controlled substance
and class A misdemeanor possession of a synthetic drug, the trial court
sentenced Christopher Moberg to a term of three years in the Tippecanoe
County Community Corrections program. Moberg argues that this sentence is
inappropriate in light of the nature of the offenses and his character. Finding
that Moberg’s sentence is not inappropriate, we affirm.
Facts
[2] On November 26, 2013, in response to a report of an ongoing argument, Officer
Landis of the Lafayette Police Department found Moberg and Kristen Arnett
arguing in a parked vehicle. Officer Landis asked Moberg to step out of the
vehicle and Moberg consented to a search of his person. During the search,
Officer Landis discovered one bag containing Methylin pills, which often go by
the name Ritalin, and another bag containing synthetic marijuana, also known
as spice.
[3] On November 27, 2013, the State charged Moberg with class D felony
possession of a controlled substance and class A misdemeanor possession of a
synthetic drug. On April 2, 2015, a jury found Moberg guilty as charged. On
May 14, 2015, the trial court sentenced Moberg to three years for the class D
felony conviction and one year for the class A misdemeanor conviction. The
trial court determined that these sentences would run concurrently, resulting in
a total term of three years. The trial court also determined that Moberg would
serve his term in the Tippecanoe County Community Corrections program,
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provided he was accepted into the program and did not violate its rules.
Moberg now appeals.
Discussion and Decision
[4] Under Indiana Appellate Rule 7(B), “[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.” The burden is on the defendant to persuade
us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind.2006).
[5] When assessing the appropriateness of a sentence, we look first to the statutory
range provided for the class of the offense. Bigger v. State, 5 N.E.3d 516, 518
(Ind. Ct. App. 2014). Here, Moberg was convicted of both a class D felony and
a class A misdemeanor. Our criminal code provides that “[a] person who
commits a Class D felony . . . shall be imprisoned for a fixed term of between
six (6) months and three (3) years, with the advisory sentence being one and
one-half (1 ½) years.” Ind. Code § 35-50-2-7. The code also provides that “[a]
person who commits a Class A misdemeanor shall be imprisoned for a fixed
term of not more than one (1) year.” I.C. § 35-50-3-2. In this case, the trial
court chose to sentence Moberg to the maximum allowable term for each
conviction and to run those terms concurrently.
[6] As to the nature of the offenses, Moberg claims that he suffers from Attention
Deficit Hyperactivity Disorder (ADHD) and was merely trying to self-medicate.
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While we acknowledge that Ritalin is commonly used to treat ADHD, this does
not excuse the possession of such a drug absent a prescription. Moberg has
failed to produce a prescription despite initially claiming that he had one.
Furthermore, his assertion that he suffers from ADHD does nothing to excuse
his possession of synthetic marijuana.
[7] As to his character, Moberg argues that he has an excellent job and is current in
his payment of child support. The trial court noted that these were indeed
mitigating factors; however, it had to balance these factors against Moberg’s
extraordinarily lengthy criminal history. As a juvenile, Moberg was
adjudicated a delinquent child ten times for offenses including theft, auto theft,
and burglary. Appellee’s Br. p. 11. As an adult, Moberg had amassed eight
misdemeanor and six felony convictions prior to the convictions at issue here.
Id. at 11-12. Such a significant criminal history shows a complete lack of
respect for the law on Moberg’s part and a consequent need for reform.
[8] We also note that Moberg has been ordered to serve his sentence in Tippecanoe
County Community Corrections, which may provide him with the opportunity
for work release. As we “may consider all aspects of the penal consequences”
when reviewing a sentence under Rule 7(B), we cannot overlook the fact that a
sentence served in community corrections is far more lenient than a sentence
served in the Department of Correction. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010). Accordingly, we do not find Moberg’s sentence inappropriate
in light of the nature of the offenses and his character.
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[9] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
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