Jeffery W. Moore v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 06 2015, 8:40 am
Pursuant to Ind. Appellate Rule 65(D), this
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
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery W. Moore, April 6, 2015
Appellant-Defendant, Court of Appeals Case No.
60A05-1407-CR-349
v. Appeal from the Owen Circuit
Court; The Honorable Lori Thatcher
Quillen, Judge
State of Indiana, 60C01-1208-FA-520
Appellee-Plaintiff.
May, Judge.
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[1] Jeffery Moore appeals his twenty-year sentence for Class B felony sexual
misconduct with a minor.1 Moore asserts the court abused its discretion when
it imposed that sentence.
[2] We affirm.
Facts and Procedural History
[3] In 2001 and 2002, Moore, who was in his mid-thirties, repeatedly engaged in
sexual activity with T.B., who was the daughter of the woman Moore was
dating. Moore began having sexual intercourse with T.B. when she was eleven,
and he would obtain access to T.B. by sending her mother to the store so that
he and T.B. were alone. T.B. became pregnant before her fourteenth birthday
and had the baby “three months before [she] turned fifteen.” (Tr. at 32.) Police
learned T.B. had become pregnant by Moore, but they could not locate him.
[4] In 2012, police found Moore, and his DNA indicated the probability that he
was the father of T.B.’s child was “99.9999%.” (App. at 30.) On August 29,
2012, the State charged Moore with one count of Class A felony sexual
misconduct with a minor2 for sexual intercourse with T.B. when she was
thirteen years old and one count of Class B felony sexual misconduct with a
minor for sexual intercourse with T.B. when she was fourteen years old.
1
Ind. Code § 35-42-4-9(a)(1) (1998).
2
Ind. Code § 35-42-4-3(a)(1) (1998).
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[5] Moore reached a plea agreement with the State pursuant to which Moore
would plead guilty to the Class B felony, the State would dismiss the Class A
felony, and sentencing would be left to the discretion of the trial court.
Following a sentencing hearing, the court found aggravators in Moore’s
criminal history, his position of trust with T.B., and his commission of multiple
acts of misconduct with her and found mitigators in Moore’s plea of guilty and
his willingness to provide medical history for the benefit of the child. It
imposed a twenty-year sentence, with two years suspended.
Discussion and Decision
[6] Sentencing is principally a discretionary function, and the trial court’s judgment
should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222
(Ind. 2008). Thus, we reverse only for an abuse of discretion, which occurs
when a 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 from those facts and circumstances. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g by Anglemyer v. State, 875
N.E.2d 218 (Ind. 2007). We may find an abuse of discretion if the trial court
does not provide a sentencing statement, if the sentencing statement is not
supported by the record, if the sentencing statement omits reasons clearly
supported by the record and advanced by the defendant, or if the trial court’s
reasons for sentencing are improper as a matter of law. Id. at 490-91. In a
felony case such as this, a trial court must give a “reasonably detailed
recitation” of the reasons for the sentence imposed. Id. at 490. As we review
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the court’s decision, we may consider both the written and oral sentencing
statements. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (“we are not
limited to the written sentencing statement but may consider the trial court’s
comments in the transcript of the sentencing proceedings”).
[7] Moore’s arguments all arise from the court’s statement at the sentencing
hearing:
Mr. Moore . . . you were an adult male and you took a position of
trust and you took that child, and it wasn’t one time of stupidity, it was
over and over again, to the point that a child resulted in that. So, you
screwed up two lives essentially at that moment. And, you also
destroyed a relationship between a child and her parent. And, you
took the stand and you told me how important your children were to
you and so you have to know that by the choices that you made on
that day, even though it was several years ago, it was one that [was]
designed for evil. And, you were wise enough then and wise enough
now to know that what you were doing was wrong. And, so I have
some real concerns when you say I didn’t know about the baby. The
fact of the matter the baby resulted doesn’t mean you didn’t know
what you did on a regular basis that put her in the position where she
was placed in foster care. If you were so big on I’m going to take
responsibility, the reality is that had the baby not been produced, you
probably couldn’t have been found guilty because there wouldn’t have
been enough evidence on a twelve-year-old little girl ten years later and
it would have been you saying it didn’t happen and her saying that it
did. . . . The fact is the evidence was overwhelming. After that it was
just doing math and it was pretty easy to determine that [sic] what you
did [and] when you did it. So, you got a pretty decent deal when I
look at the charge because if I get rid of the A Felony, which by the
plea agreement I have to do, the minimum you would have got [sic]
under that sentence would have been twenty years. So, I’m glad that
you did show up today, but the reality had you not showed [sic] up
today then the plea never would have been accepted and you’d be still
looking at potentially doing fifty years for what happened back then.
Now, would you be deserving of fifty years, I don’t know. Because I
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do think there’s [sic] some special circumstances that [defense counsel]
has brought out. But, on the same hand I think the minimum in that
case of twenty years is appropriate [in] this case because you did
violate a position of trust, you did have a prior criminal history, it
wasn’t one incident, it was multiple and several incidents. I do find
that you pled guilty and I’m glad that you were a trustee ‘cause it tells
me it’s somebody that the department can work with. But, because
you were a trustee you got benefits and, more importantly, you got
entitled to your good time credit because you did what you were
supposed to do. And, since you get good time credit, that’s what you
deserve and I’m glad they did give that to you. But, I don’t think
that’s something that screams volumes that says that you deserve to
have no further punishment for this because you do. You destroyed
that woman’s life and she just had the strength and integrity to go
forward with it and be a survivor instead of a victim for the rest of her
life. But, it’s time for you to have to suffer the consequences of it and I
think you do deserve punishment for the same. So, here’s what your
sentence is going to be. . . . I am going to sentence you to twenty years.
I think that’s the minimum amount that was on the one sentence that’s
appropriate. I agree with [State’s counsel]. That’s the notes that I
made throughout the whole process. I think suspending two years is
appropriate in this particular case. I will show that you have credit for
606 days. With good time credit you have 1,216 days toward your
sentence. I will sentence you to the Department of Correction,
therefore, for eighteen years, give you credit for the time that we just
discussed. I’m going to order there be a no-contact order with the
victim in this case. The reason why I did suspend the two years is that
I don’t think you’re the worst of the worst and you voluntarily have
agreed to provide the medical is- -- history for the benefit of the child
herein . . . . I do find, though, that the aggravators outweigh the
mitigators. I find that you got a significant break by having the Count
I – child molesting charge dismissed and I will follow through with
that and dismiss that charge. I will show at this point in time you’re
remanded to the Department of Corrections [sic] to start serving your
sentence.
(Tr. at 64-67.)
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[8] Moore asserts “the trial court did not identify any factor as an ‘aggravator’ or
any as a ‘mitigator.’” (Appellant’s Br. at 7.) It is true the court does not
explicitly label any factor as an aggravator or mitigator in that statement, but
the trial court’s written sentencing order explicitly lists three aggravators --
Moore’s criminal history, his position of trust with T.B., and his commission of
multiple acts of misconduct with T.B. -- and two mitigators -- Moore’s plea of
guilty and his willingness to provide medical history for the benefit of the child.
(See App. at 7.) Thus, the court adequately identified aggravators and
mitigators. See Corbett, 764 N.E.2d at 631 (we may consider both the written
order and the statement at sentencing).
[9] Moore also argues the court should have found as a mitigator that he was “a
model inmate during nearly two years of incarceration” before sentencing.
(Appellant’s Br. at 9.)3 A court “need not regard . . . a possible mitigating
circumstance the same as urged by the defendant.” Corbett, 764 N.E.2d at 630.
The court abuses its discretion only when it does not “find mitigating
circumstances clearly supported by the record and advanced for consideration.”
Cardwell, 895 N.E.2d at 1225. As Moore notes, the court explicitly declined to
find a mitigator in Moore’s status as a trustee at the county jail because he “got
benefits and, more importantly, [he] got entitled to [his] good time credit.” (Tr.
at 65.) As the court’s discussion indicated it considered this proposed mitigator,
3
Moore also claims the court should have found a mitigator in his guilty plea because his “plea was not
simply a pragmatic calculation.” (Appellant’s Br. at 9.) As the trial court listed Moore’s plea as a mitigator,
(see App. at 7), we need not address this argument.
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we cannot find the court overlooked it. See Corbett, 764 N.E.2d at 631
(declining to hold trial court overlooked mitigators where trial court discussed
each proposed mitigator during sentencing).
[10] Moore next asserts the court focused too heavily on the harm to the victim but
“did not focus on matters as aggravating circumstances,” (Appellant’s Br. at
11), which suggests the court was imposing “vindictive justice.” (Id.) To the
extent Moore’s argument suggests the court did not find aggravating factors, the
record does not support that argument. (See App. at 7.) Furthermore, our
Legislature has permitted a trial court to consider the “harm, injury, loss, or
damage suffered by the victim of an offense” when that harm was significant
and greater than necessary to prove the offense. Ind. Code § 35-38-1-7.1(a)(1).
As the trial court noted, the harm to T.B. was greater than that required to
prove Class B felony sexual misconduct because T.B. was only thirteen years
old when she was impregnated by Moore. Compare Ind. Code § 35-42-4-3(a)(1)
(defining Class A felony as act involving child “under fourteen”) with Ind. Code
§ 35-42-4-9(a)(1) (defining Class B felony as act involving child “at least
fourteen”). There was no abuse of discretion in the court’s discussion of the
harm to T.B.4 See Anglemyer, 868 N.E.2d at 492 (“Concerning the seriousness
4
Moore also asserts error based on “what appears to have been the weight the trial court gave to the offense
Moore committed.” (Appellant’s Br. at 12.) As we are no longer permitted to review the weight a court
assigns to aggravating and mitigating factors, this assertion raises no error to review. See Anglemyer, 868
N.E.2d at 491 (“Because the trial court no longer has any obligation to ‘weigh’ aggravating and mitigating
factors against each other when imposing a sentence, unlike the pre-Blakely statutory regime, a trial court can
not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.”).
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of the offense, this aggravator, which implicitly includes the nature and
circumstances of the crime as well as the manner in which the crime is
committed, has long been held a valid aggravating factor.”).
[11] Finally, Moore asserts the court abused its discretion by discussing the
sentencing range for the Class A felony charge that was dismissed without
mentioning the sentencing range for the Class B felony sentence that was being
imposed. Moore has not demonstrated an abuse of discretion. The controlling
statute permitted a twenty-year sentence for a Class B felony, see Ind. Code §
35-50-2-5 (setting sentencing range at six to twenty years), and “we presume the
trial court knows and follows the applicable law.” Tharpe v. State, 955 N.E.2d
836, 842 (Ind. Ct. App. 2011), trans. denied. Moore has not overcome that
presumption.
Conclusion
[12] Finding no abuse of discretion in the imposition of a twenty-year sentence for
Class B felony sexual misconduct with a minor, we affirm.
[13] Affirmed.
Barnes, J., and Pyle, J., concur.
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