Kevin D. Morris v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Dec 30 2014, 8:25 am
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:
DAVID M. ZENT GREGORY F. ZOELLER
Leonard, Hammond, Thoma & Terrill Attorney General of Indiana
Fort Wayne, Indiana
KENNETH E. BIGGINS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN D. MORRIS, )
)
Appellant/Defendant, )
)
vs. ) No. 02A03-1406-CR-216
)
STATE OF INDIANA, )
)
Appellee/Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1307-FC-228
December 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
The State charged Kevin Morris with Class C felony battery and Class D felony
criminal recklessness after he stabbed his fiancée’s father. A jury found Morris guilty as
charged and determined that he was a habitual offender, and Morris received a twenty-
year aggregate sentence. He now appeals, arguing that his sentence is inappropriate in
light of the nature of the offenses and his character. Because we conclude that Morris’s
sentence is appropriate, we affirm the trial court.
Facts and Procedural History
In July 2013 Morris and Anthony Gooden were involved in a fight over Nicole
Gooden, Anthony’s daughter and Morris’s fiancée. At some point during the fight,
Morris pulled out a three-inch pocket knife and stabbed Anthony four times, puncturing
one of Anthony’s lungs. Anthony was hospitalized for two months and incurred more
than $30,000 in medical bills.
The State charged Morris with Class C felony battery and Class D felony criminal
recklessness and alleged that he was a habitual offender. A jury found Morris guilty as
charged and determined that he was a habitual offender. When sentencing Morris, the
trial court found no mitigating circumstances. Sent. Tr. p. 25-26. The court did find
aggravating circumstances, however, including Morris’s previous convictions for Class C
felony battery (2000), Class D felony possession of cocaine (2003), and Class C felony
battery (2008); misdemeanor convictions for false reporting/informing (2000 and 2002)
and driving without a license (1999); juvenile adjudication for what would have been
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false reporting/informing if committed by an adult;1 and unsuccessful experiences with
alternative sentencing, including suspended sentencing and parole. See id. at 26-28;
Presentence Investigation Report p. 4-6.
The trial court sentenced Morris to an aggregate twenty-year term: eight years for
battery, enhanced by twelve years for being a habitual offender, and a three-year
concurrent term for criminal recklessness.
Morris now appeals.
Discussion and Decision
Morris contends that his sentence is inappropriate. The Indiana Constitution
authorizes independent appellate review and revision of a trial court’s sentencing
decisions. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement this authority
through 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
the sentence is inappropriate in light of the nature of the offense and the character of the
offender. Id. Morris bears the burden on appeal of proving that
his sentence is inappropriate. 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—
1
According to Morris, he also has juvenile adjudications for robbery, assault with a firearm, and
exhibiting a firearm. See Sent. Tr. p. 26 (“You’ve also self-reported . . . having a juvenile record in
Orange County, California, apparently for Robbery, Assault with a Firearm on a Person and Exhibiting a
Firearm. There’s no information in the PSI that supports that other than your self-reported self-admission
. . . .”).
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the aggregate sentence—rather than the trees—consecutive or concurrent, number of
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. In assessing whether a sentence is inappropriate, appellate courts
may take into account whether a portion of the sentence is ordered suspended or is
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). These tools include probation,
home detention, placement in a community-corrections program, executed time in a
Department of Correction facility, concurrent rather than consecutive sentences, and
restitution/fines. Id.At the time Morris committed the underlying offenses, the sentencing range for a
Class C felony was between six and twenty years, with an advisory sentence of ten years.
Ind. Code Ann. § 35-50-2-5 (West 2012). The sentencing range for a Class D felony was
six months to three years, with one and one-half years being the advisory term. Ind. Code
Ann. § 35-50-2-7 (West 2012). Because Morris was found to be a habitual offender, the
trial court was required to sentence him to an “additional fixed term that is not less than
the advisory sentence for the underlying offense nor more than three (3) times the
advisory sentence for the underlying offense.” Ind. Code Ann. § 35-50-2-8(h) (West
2012). Here, the trial court sentenced Morris to an aggregate twenty-year term: eight
years for Class C felony battery, enhanced by twelve years for being a habitual offender,
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and a three-year concurrent term for Class D felony criminal recklessness. This sentence
is within the statutory range.
The nature of the offenses is serious. Morris stabbed Anthony, his fiancée’s
father, four times during a fight. One stab wound punctured Anthony’s lung. Anthony
was hospitalized for two months and incurred more than $30,000 in medical bills.
Morris’s character does not help his cause. This is Morris’s third Class C felony
battery conviction. He also has a felony conviction for possession of cocaine,
misdemeanor convictions for false reporting/informing and driving without a license, and
a juvenile adjudication for what would have been false reporting/informing if committed
by an adult. In addition, Morris’s Presentence Investigation Report indicates that he is at
a very high risk of reoffending. PSI p. 9. Morris failed to take advantage of alternative
sentencing when it was offered to him—his parole was revoked in 2002 and twice he
received a suspended sentence that was later reinstated due to his failure to comply with
probation or other legal requirements. See id. at 4-6. Despite many opportunities to
reform his conduct, Morris continues to engage in criminal behavior.
Finally, Morris’s claim that his sentence is inappropriate because he is not “among
the very worst offenders and . . . he did not commit[] one of the very worst offenses,”
Appellant’s Br. p. 7, is not persuasive because Morris did not receive the maximum
sentence. The trial court could have sentenced Morris to an aggregate sentence of
twenty-three years; instead, the court ordered Morris’s three-year sentence for criminal
recklessness to be served concurrent to his battery/habitual-offender sentence.
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Morris has failed to persuade us that his aggregate twenty-year sentence is
inappropriate in light of the nature of his offenses and his character.
Affirmed.
BAKER, J., and RILEY, J., concur.
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