MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 14 2017, 10:35 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher Sturgeon Curtis T. Hill, Jr.
Clark County Public Defender’s Office Attorney General of Indiana
Jeffersonville, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric L. Moots, November 14, 2017
Appellant-Defendant, Court of Appeals Case No.
10A01-1706-CR-1279
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Vicki L.
Appellee-Plaintiff Carmichael, Judge
Trial Court Cause No.
10C04-1602-F4-11
Crone, Judge.
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Case Summary
[1] Eric Moots appeals the twelve-year sentence imposed by the trial court
following his guilty plea to level 4 felony burglary. He contends that his
sentence is inappropriate in light of the nature of the offense and his character.
Concluding that he has not met his burden to demonstrate that his sentence is
inappropriate, we affirm.
Facts and Procedural History
[2] Moots worked for his half brother, Jimmy Green. On January 26, 2016, Moots
phoned Green and told him he was unable to make it into work. Moots asked
his sister to drive him to Green’s house so he could pick something up from
Green’s back porch. He walked back to the porch area, but he did not have
anything with him when he returned to the car. Moots later returned to
Green’s house, kicked in the basement door, and ransacked the house. Moots
knew where Green kept his guns, and he took three of them. He also
unsuccessfully tried to break into Green’s gun safe located in a closet. Moots
caused damage to the doors of the home and the gun safe. While in jail, Moots
confessed to a detective that he subsequently used one of the stolen guns to
commit a bank robbery.1 Appellant’s App. Vol. 2 at 76.
[3] The State charged Moots with level 4 felony burglary, level 6 felony theft of a
firearm, and being a habitual offender. Pursuant to a plea agreement, Moots
1
The State charged Moots with level 3 felony robbery in a separate cause.
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pled guilty to one count of level 4 felony burglary in exchange for dismissal of
the other charges. Sentencing was left to the trial court’s discretion. The trial
court sentenced Moots to twelve years with three years suspended to probation.
The court also gave Moots the option to participate in the Purposeful
Incarceration program for the last two years of his executed sentence. This
appeal ensued.
Discussion and Decision
[4] Moots claims that his sentence is inappropriate and invites this Court to reduce
it pursuant to Indiana Appellate Rule 7(B), which provides that we 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.” The defendant bears the burden to
persuade this Court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible sentencing scheme
allows trial courts to tailor an appropriate sentence to the circumstances
presented, and the trial court’s judgment “should receive considerable
deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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. We consider all aspects of the penal consequences imposed
by the trial court in sentencing the defendant, including whether a portion of
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the sentence is ordered suspended “or otherwise crafted using any of the variety
of sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or “if another sentence might
be more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
[5] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a level 4 felony is between two and twelve years, with the advisory sentence
being six years. Ind. Code § 35-50-2-5.5. The trial court here imposed the
maximum sentence of twelve years, with three years suspended to probation.
[6] Moots argues that the advisory sentence of six years would be more appropriate
because there was nothing egregious about his offense. He points out that when
he committed the burglary, nobody was present at the house and nobody was
injured. Appellant’s Br. at 7. Moots ignores, however, that the evidence
indicates that this was a premeditated burglary of a family member’s home, that
he abused a position of trust, and that he caused property damage while doing
so. The evidence also indicates that Moots’s purpose in committing the
burglary was to obtain a gun to use in a subsequent armed robbery. We are not
persuaded that the nature of this offense warrants a sentence reduction. We
remind Moots that the question is not whether another sentence might be more
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appropriate; rather, the question is whether the sentence imposed is
inappropriate. See Fonner, 876 N.E.2d at 344.
[7] In any event, we need look no further than his character to justify the sentence
imposed. When considering the character of the offender, one relevant fact is
the defendant’s criminal history. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.
App. 2017), trans. denied. Twenty-nine-year-old Moots has an extensive adult
criminal history, including several felony convictions and several misdemeanor
convictions in the span of only ten years.2 Many of his convictions are similar
to his current offense: he has been convicted of robbery, attempted robbery,
theft, and unlawful possession of a firearm by a serious violent felon. He has
been granted the leniency of probation on multiple occasions, only to violate
that probation and have it revoked. Moots’s refusal to alter his criminal
behavior reflects very poorly on his character. Moreover, as noted above, he
violated a position of trust when committing the current offense, and he used
one of the stolen guns to commit yet another crime. Moots has not convinced
us that his twelve-year sentence, a quarter of which has been suspended to
probation, and two years of which may be served in Purposeful Incarceration, is
inappropriate in light of the nature of the offense or his character.
2
Although Moots’s juvenile history “could not be added to [the Presentence Investigation Report] due to not
being entered in Odyssey Case System,” Moots reported that he had his first involvement with the criminal
justice system at age eight, and the records from a 2008 presentence investigation revealed that he had at least
eleven separate placements in juvenile delinquency facilities between the ages of thirteen and eighteen.
Appellant’s App. Vol. 2 at 64.
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[8] We note that as part of his Rule 7(B) character analysis, Moots argues that the
trial court failed “to consider significant mitigating circumstances[.]”
Appellant’s Br. at 8. However, Moots conflates two different appellate
arguments. An inappropriate sentence analysis does not involve an argument
that the trial court abused its discretion in sentencing the defendant. King v.
State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Nevertheless, even if the trial
court had abused its discretion in its consideration of (or failure to consider)
mitigating circumstances, reversal would not be necessary, because as we have
already concluded, the sentence imposed is not inappropriate. See Mendoza v.
State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that “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”), trans. denied. We affirm the sentence imposed by the trial
court.
[9] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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