MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Feb 20 2018, 5:55 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chad A. Montgomery Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keywan Moten, February 20, 2018
Appellant-Defendant, Court of Appeals Cause No.
79A02-1709-CR-2138
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy Williams,
Judge
Appellee-Plaintiff.
Trial Court Cause No. 79D01-1612-
F5-168
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Keywan Moten (Moten), appeals his eight-year aggregate
sentence following his open guilty plea to two Counts of robbery, Level 5
felonies, Ind. Code § 35-42-5-1(a).
[2] We affirm.
ISSUES
[3] Moten presents two issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion during sentencing; and
(2) Whether Moten’s sentence is inappropriate in light of the nature of the
offenses and his character.
FACTS AND PROCEDURAL HISTORY
[4] On December 11, 2016, the Lafayette Police Department investigated a robbery
at a Village Pantry. The officers obtained surveillance footage documenting the
robbery. The following day, on December 12, 2016, the police investigated a
“strong-arm robbery of a female subject walking down an alley.” (Appellant’s
App. Vol. II, p. 13). Details of the perpetrator were obtained from the victim.
Then on December 13, 2015, the police investigated another robbery at a
different Village Pantry in Lafayette. During subsequent police investigations,
Moten was identified as the suspect in all three robberies.
[5] On December 20, 2016, the State filed an Information, charging Moten with
three Counts of robbery as Level 5 felonies. On June 23, 2017, Moten and the
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State executed a plea agreement, pursuant to which Moten agreed to plead
guilty to two Counts of robbery. The State further agreed that it would dismiss
Moten’s remaining robbery charge. The plea agreement left sentencing to the
discretion of the trial court. The same day, the trial court conducted a hearing
on Moten’s guilty plea. After a factual basis was presented to the trial court, the
trial court took Moten’s plea under advisement, and ordered the preparation of
a pre-sentencing report. On July 25, 2017, at the start of Moten’s sentencing
hearing, the trial court accepted Moten’s guilty plea. The trial court then heard
evidence and arguments regarding sentencing. At the close of the evidence, the
trial court entered a judgment of conviction for two Counts of robbery as Level
5 felonies, and ordered Moten to serve consecutive terms of four years on each
Count. Moten’s aggregate sentence was eight years, of which the trial court
ordered six years executed and two years suspended to supervised probation.
[6] Moten now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Abuse of Sentencing Discretion
[7] Moten claims that the trial court abused its sentencing discretion. It is well
established that sentencing decisions rest within the sound discretion of the trial
court and are subject to appellate review only for an abuse of that discretion.
Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind.
2007). It is an abuse of discretion if the trial court’s decision “is ‘clearly against
the logic and effect of the facts and circumstances before the court, or the
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reasonable, probable, and actual deductions to be drawn therefrom.’” Id.
(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).
[8] One way that a trial court may abuse its discretion is by not recognizing
mitigators that are clearly supported by the record and advanced for
consideration. Anglemyer, 868 N.E.2d at 491. The defendant bears the burden
of demonstrating that “the trial court failed to find or identify a mitigating
factor by establishing that the mitigating evidence is both significant and clearly
supported by the record.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016).
Remand for resentencing may be the 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.” Anglemyer, 868
N.E.2d at 491.
[9] The State initially argues that Moten “has waived consideration of the issue of
sentencing because he failed to present this [c]ourt with the presentence
investigation report.” (State’s Br. p. 9). We agree. Failure to provide the pre-
sentencing report as part of the appellate record results in waiver of the issue on
appeal. Nasser v. State, 727 N.E.2d 1105, 1110 (Ind. Ct. App. 2000), trans.
denied. Waiver notwithstanding, we observe that the record supports the trial
court’s sentencing decision.
[10] Indiana Code section 35-50-2-6(b) provides that “[a] person who commits a
Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and
six (6) years, with the advisory sentence being three (3) years.” In the present
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case, the trial court imposed a four-year term on both Counts, to be served
consecutively. In the written sentencing order, the trial court noted the
existence of certain aggravators factors, namely Moten’s criminal history, the
existence of a pending petition to revoke his probation, and upon reading a
statement offered from the victim Moten robbed in an alley. The trial court
found Moten’s guilty plea, Moten’s support from his family members, and the
fact that Moten suffers from mental health issues and lacks intellectual ability as
mitigating factors.
[11] Moten contends that his youthful age of eighteen at the time he committed the
crimes should have also been considered as a mitigating factor. “The finding of
mitigating circumstances is not mandatory but is within the discretion of the
trial court.” Sandleben v. State, 29 N.E.3d 126, 135 (Ind. Ct. App. 2015), trans.
denied. A trial court is under no obligation “to accept the defendant’s argument
as to what constitutes a mitigating factor”; nor is the trial court “required to
give the same weight to a proffered mitigating factor as does the defendant.” Id.
at 135-36. A defendant alleging “that the trial court failed to identify or find a
mitigating factor” is required “to establish that the mitigating evidence is both
significant and clearly supported by the record.” Id. at 136.
[12] Regarding age, our Supreme Court stated in Sensback v. State, 720 N.E.2d 1160,
1164 (Ind. 1999), “Age is neither a statutory nor a per se mitigating factor.
There are cunning children and there are naïve adults.” In other words,
focusing on chronological age, while often a shorthand for measuring
culpability, is frequently not the end of the inquiry for people in their teens and
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early twenties. There are both relatively old offenders who seem clueless and
relatively young ones who appear hardened and purposeful. Id. See also Ellis v.
State, 736 N.E.2d 731, 736 (Ind. 2000).
[13] At his sentencing, Moten explicitly asked the sentencing court to consider his
age as a mitigating circumstance. The trial court, in turn, noted that although
Moten was eighteen years old at the time he committed the crimes, “he’s not a
kid.” (Sentencing Tr. p. 26). The trial court further noted that Moten was on
probation for a burglary offense when he committed the instant offenses.
Moreover, Moten’s three-day robbery spree does not reflect acts of an innocent
youth who committed an isolated crime; rather, his purposeful acts can be
associated with that of a hardened criminal. Therefore, it is apparent that the
trial court found that Moten’s age was not a mitigating circumstance.
Accordingly, we conclude that Moten’s abuse of sentencing discretion claim
has no merit.
II. Inappropriate Sentence
[14] Next, Moten claims that his eight-year aggregate sentence is inappropriate in
light of the nature of the offenses and his character. Indiana Appellate Rule
7(B) empowers us to independently review and revise sentences authorized by
statute if, after due consideration, we find the trial court’s decision
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). The “nature of
offense” compares the defendant’s actions with the required showing to sustain
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a conviction under the charged offense, while the “character of the offender”
permits a broader consideration of the defendant’s character. Cardwell v. State,
895 N.E.2d 1219, 1224 (Ind. 2008); Douglas v. State, 878 N.E.2d 873, 881 (Ind.
Ct. App. 2007). An appellant bears the burden of showing that both prongs of
the inquiry favor a revision of his sentence. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006). Whether we regard a sentence as appropriate 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 a myriad of other considerations that
come to light in a given case. Cardwell, 895 N.E.2d at 1224. Our court focuses
on “the length of the aggregate sentence and how it is to be served.” Id.
[15] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). Moten was convicted of two Counts of robbery, Level 5
felonies, and the trial court imposed four years on each Count, to be served
consecutively. A Level 5 felony is punishable for a fixed term between one and
six years, with the advisory sentence being three years. See I.C. § 35-50-2-6(b).
[16] The nature of the offenses is that Moten committed two robberies, one to a
Village Pantry, and the other was to a woman who was walking down an alley.
Moten committed the instant offenses while on probation for a burglary offense.
After the police confronted Moten with the evidence, he subsequently pled
guilty.
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[17] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. While a record of arrests may not be used as
evidence of criminal history, it can be “relevant to the trial court’s assessment of
the defendant’s character in terms of the risk that he will commit another
crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).
[18] At his sentencing hearing, the trial court took note of Moten’s prior run-ins with
the criminal justice system. In 2013, Moten was adjudicated as a delinquent for
dealing in marijuana, resisting law enforcement, and residential entry.
Although it is unclear as to when the offenses were committed, the trial court
noted that Moten had been “placed in secure detention for carrying a handgun
without a license and dangerous possession of a firearm.” (Sentencing Tr. p.
23). Then in May of 2015, Moten committed a burglary offense, and was
placed on probation. The trial court took note of the fact that Moten
committed the instant offenses while on probation for a burglary offense, and
there was a pending petition to revoke his probation. Additionally, the trial
court indicated that Moten abused drugs from age thirteen, and Moten only
stopped after he was incarcerated for the instant offenses. As stated, Moten
committed three separate robberies in a span of three days which resulted in the
State charging Moten with three separate Level 5 felony robbery charges.
Because Moten agreed to plead guilty to two robbery charges, the State
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dismissed the remaining Count. Moten’s criminal history and prior criminal
contacts have not deterred him from breaking the law. For all of the above
reasons, Moten has failed to meet his burden in persuading us that his sentence
is inappropriate in light of his character and the nature of his offenses.
CONCLUSION
[19] In sum, we conclude that the trial court did not abuse its discretion in
sentencing Moten, and Moten’s sentence is not inappropriate in light of the
nature of the offenses and his character.
[20] Affirmed.
[21] Baker, J. and Brown, J. concur
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