Carl Louis Moore, Jr. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 27 2015, 9:18 am
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
Steven P. Teverbaugh Gregory F. Zoeller
Greensburg, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carl Louis Moore, Jr. February 27, 2015
Appellant-Defendant, Court of Appeals Case No.
16A01-1408-CR-353
v. Appeal from the Decatur Circuit
Court
State of Indiana, The Honorable Timothy B. Day,
Judge
Appellee-Plaintiff
Cause No. 16C01-1304-FC-228
Mathias, Judge.
[1] Carl Louis Moore, Jr. (“Moore”) pleaded guilty in Decatur Circuit Court to
Class C felony robbery and Class C felony attempted robbery. After a
sentencing hearing, the trial court sentenced Moore to two consecutive six-year
sentences and ordered his aggregate twelve-year sentence to be served
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consecutive to Moore’s sentences for other crimes committed in other counties.
On appeal, Moore claims that the trial court abused its discretion in sentencing
him to an aggregate twelve-year sentence.
[2] We affirm.
Facts and Procedural History
[3] On March 13, 2013, Moore entered the New Point Food Mart in Greensburg,
Indiana and demanded money from the clerk, Chintankumar Patel (“Patel”).
Moore made Patel believe that he was armed with a knife. Patel gave Moore a
bag containing $2,140, and Moore fled from the store.
[4] On April 5, 2013, while Patel was working at the store, Moore again entered
the store and demanded money from Patel. Because he had already placed the
money in the store’s safe, Patel ran away from the counter. Moore tried to open
the register, but he was unable to do so. He then fled the scene. When the
police investigated, Moore was identified as a suspect of the crime. He later
admitted to committing the two crimes. Patel suffered significant psychological
trauma from these events.
[5] As a result, the State charged Moore with Class C felony robbery and Class C
felony attempted robbery. On June 17, 2014, Moore pleaded guilty to both
charges, but sentencing was left “open” to the discretion of the trial court. On
July 29, 2014, the trial court heard evidence regarding sentencing. The trial
court sentenced Moore to a consecutive six-year term for each count, and
ordered the sentences in this case to be served consecutive to his criminal
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sentences imposed for other crimes committed in other counties. Moore now
appeals.
Discussion and Decision
[6] In his appellate brief, Moore makes an array of arguments that he should serve
his sentences concurrently. Among these arguments, we find four coherent
issues. Each issue will be addressed individually.
Abuse of Discretion
[7] Even though Moore does not explicitly challenge his sentencing as an abuse of
discretion, his argument is, in essence, a claim that the trial court abused its
discretion its consideration of the aggravating and mitigating circumstances.
Sentencing decisions “rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007). The trial court abuses its discretion if its decision
is “clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id. A trial court abuses its discretion by: (1) failing to enter a
sentencing statement, (2) finding aggravating or mitigating factors unsupported
by the record, (3) omitting mitigating factors clearly supported by the record
and advanced for consideration, or (4) giving reasons that are improper as a
matter of law. Id. at 490–91.
[8] In his brief, Moore argues that the trial court failed to consider the following
mitigating factors: his drug addiction, his age, and his childhood in an
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uncontrolled environment. Although he testified concerning these facts at the
sentencing hearing, the only mitigating factor specifically raised as such by
Moore was that he pleaded guilty. Moore specifically raised no other factors as
mitigators at the sentencing hearing. “The trial court does not abuse its
discretion in failing to consider a mitigating factor that was not raised at
sentencing.” Id. at 492. The trial court clearly considered the only mitigator
Moore specifically raised at the sentencing hearing, his guilty plea.
[9] Even had Moore properly raised other factors, the trial court was not obligated
to find them mitigating. “[T]he trial court is not obligated to explain why it has
found that the factor does not exist.” Id. at 493. Nevertheless, the trial court
explicitly rejected Moore’s drug addiction as a mitigating factor. Tr. p. 24.
Additionally, the relative weight given to a factor is not available for appellate
review. Anglemyer, 868 N.E.2d at 493–94.
Improper Aggravator
[10] Moore also argues that the trial court improperly found the traumatization of
the clerk by Moore to be an aggravating factor. Moore argues that such trauma
is improper because it is an element of the offense. See Gomilia v. State, 13
N.E.3d 846, 852 (Ind. 2014).
[11] Generally, a trial court may not impose a sentence greater than the advisory
sentence for reasons that are included in the material elements of the offense.
Id. at 852–53. However, the reason is proper if unique circumstances exist that
would justify deviating from the advisory sentence. Id.Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015 Page 4 of 6
[12] The trial court characterized Patel’s trauma as the “nature of the crime,” and
the court discussed at length the unique troubles and difficulties that Patel faced
and continues to face because of Moore’s actions. Tr. pp. 23-24. We conclude
that this was a unique circumstance and that the trial court properly considered
Patel’s trauma as an aggravating circumstance.
Appropriateness of Sentence
[13] Pursuant to Appellate Rule 7(b), we may revise a sentence otherwise 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.” Although Moore cites to this language in his brief,
he does not raise any specific argument regarding the nature of the offense and
the character of the offender. It is Moore’s burden to persuade us that his
sentence is inappropriate in the context of the nature of the offense and
character of the offender standard of review. See Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). Moore failed to compare his offense and his character
to this standard, and we therefore consider this claim waived. See Perry v. State,
921 N.E.2d 525, 528 (Ind. Ct. App. 2010).
Constitutionality of Sentence
[14] Finally, Moore argues that, at sentencing, the trial court violated Article I,
section 18 of the Indiana Constitution, which states that the penal code is
founded on “principles of reformation, and not of vindictive justice.” Ind.
Const. art. I, § 18. Moore refers to the trial court’s statement that Moore is
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“going to pay for [his crimes]” and that “there is a punitive aspect” to the
sentence. Tr. p. 24. On these two facts alone, Moore alleges a constitutional
violation.
[15] However, the trial court also stated, “I hope it rehabilitates you. I hope you get
your GED while you’re there.” Tr. p. 24. The trial court’s imposition of an
aggregate twelve-year sentence was given with the stated purpose of assisting
Moore with his rehabilitation. We conclude that the trial court’s decision is
consistent with the purposes set forth in the Indiana Constitution.
[16] The trial court did not abuse its discretion in sentencing Moore.
[17] Affirmed.
Najam, J., and Bradford, J., concur.
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