MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 13 2018, 6:32 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
G. Allen Lidy Curtis T. Hill
Lidy Law, PC Attorney General of Indiana
Mooresville, Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremiah I. Moore, March 13, 2018
Appellant-Defendant, Court of Appeals Case No.
55A04-1708-CR-1984
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Peter R. Foley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
55D01-1509-F2-1384
Mathias, Judge.
[1] Jeremiah Moore (“Moore”) pleaded guilty to Level 4 felony possession of a
narcotic drug in excess of 10 grams in Morgan Superior Court. Sentencing was
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left to the discretion of the trial court, and Moore received a six-year sentence,
with three years executed in the Department of Correction (“DOC”), one year
of home detention, and two years suspended to probation. Moore now appeals
and argues that his sentence is inappropriate in light of the nature of the offense
and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On September 28, 2015, a state trooper and a confidential informant (“CI”)
arranged to purchase 20 grams of heroin in Morgan County, Indiana. At the
controlled buy, the CI identified the vehicle and the target, and two state
troopers stopped the vehicle. An individual, later identified as Moore, exited the
passenger door and made movements to indicate he was going to run. Moore
was blocked in, and a trooper on scene watched as Moore placed a bag in his
mouth and attempted to swallow it. An officer on site was able to tackle Moore
and retrieve the item from his mouth, which was later identified as 27 grams of
heroin. Inside the vehicle, a state trooper removed a loaded semi-automatic
handgun which Moore later indicated was his.
[4] Moore was charged with Level 2 felony dealing in a narcotic drug in excess of
10 grams, Level 3 felony dealing in a narcotic drug with a firearm, Level 3
felony possession of a narcotic drug in excess of 10 grams with a firearm, and
Level 6 felony maintaining a common nuisance.
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[5] On January 19, 2017, Moore entered into an open plea agreement in which he
pleaded guilty to the Level 4 felony possession of a narcotic drug in excess of 10
grams, and the State dismissed the remaining charges. Sentencing was left to
the discretion of the trial court. Moore pleaded guilty pursuant to the plea
agreement at his June 26 guilty plea hearing, and the trial court took the plea
under advisement and ordered a presentence investigation.
[6] Moore’s sentencing hearing was held on August 7 in which the trial court
accepted the plea agreement and dismissed the remaining charges. The court
found Moore’s criminal history and the fact that he committed the instant
offense while released on his own recognizance in a separate case as
aggravating factors. As a mitigating circumstance, the trial court noted that
Moore would likely respond positively to short-term imprisonment and
supervision. Ultimately, the court found the aggravators and mitigators
balanced, and it sentenced Moore to the advisory term of six years, with three
years executed in the DOC, one year of home detention, and two years
suspended to probation.
[7] Moore now appeals his sentence.
Discussion and Decision
[8] Moore argues that the imposition of the six-year sentence is inappropriate.
Specifically, Moore contends that his sentence is inappropriate because “[t]he
nature of the offense and the character of [Moore] demand a lesser aggregate
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sentence and a lesser executed sentence because of the mitigators the Trial
Court found.” Appellant’s Br. at 7. We disagree.
[9] Indiana Appellate Rule 7(B) provides that “[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.” In conducting our review, “[w]e do not look
to determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “[S]entencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). Thus, although we have the power to review
and revise sentences, the principal role of appellate 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.” Id. at 1225. It is Moore’s burden on
appeal to establish that his sentence is inappropriate. Grimes v. State, 84 N.E.3d
635, 645 (Ind. Ct. App. 2017), trans. denied.
[10] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The
advisory sentence for a Level 4 felony is six years, with a sentencing range of
two to twelve years. Ind. Code § 35-50-2-5.5 Thus, Moore was ordered to serve
the advisory sentence.
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[11] Concerning the nature of the offense, when first stopped by officers, Moore
attempted to swallow 27 grams of heroin. He was also traveling with a loaded
semi-automatic handgun that he admitted was his. Moreover, he brought the
drugs from Indianapolis to distribute in Morgan County, and he was carrying
an amount of drugs far exceeding the statutory threshold for the offense.
[12] We acknowledge that several of these factors do not directly relate to the
possession charge to which Moore pleaded guilty, however, “it is not necessary
for a trial court to turn a blind eye to the facts of the incident that brought the
defendant before them.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013); see
also Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (holding the “circumstances
of the crime as well as the manner in which the crime is committed” are proper
aggravating factors for a trial court to consider). Simply put, the nature of the
offense does not support a finding that Moore’s advisory sentence was
inappropriate.
[13] Regarding Moore’s character, this is his first felony conviction. However, we
will not ignore the fact Moore has a prior arrest and conviction for possession of
marijuana,1 he committed the instant offense after being released on his own
recognizance from that case, and he tested positive for marijuana while out on
bond in the present case. Despite Moore’s previous contact with the criminal
1
Moore’s Class B misdemeanor possession of marijuana conviction was pending at the time he was arrested
for the instant offense. However, Moore had been convicted of the Class B misdemeanor by the time the trial
court sentenced him here.
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justice system and the police power of the State, he was not deterred from
committing the instant offense. Therefore, although Moore’s criminal history is
not significantly aggravating, it is still a poor reflection on his character. See
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
[14] We commend Moore for taking responsibility for his actions, expressing a
desire to turn his life around and take care of his family, and for completing an
eight-hour drug treatment program on his own. However, we cannot conclude
that the trial court’s decision to impose the six-year advisory sentence here is an
“outlier” that should be reversed under our constitutional authority to review
and revise sentences. Caraway v. State, 977 N.E.2d 469, 473 (Ind. Ct. App.
2012), trans. denied.
Conclusion
[15] Based on the facts and circumstances before us, we conclude that Moore has
not met his burden of persuading us that his six-year sentence is inappropriate
in light of the nature of the offense and the character of the offender.
Accordingly, we affirm.
Najam, J. and Barnes, J., concur.
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