Christopher Biggs v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 31 2019, 7:51 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Andrew Goodridge Curtis T. Hill, Jr.
Evansville, Indiana Attorney General
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Biggs, October 31, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-866
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Carl A. Heldt,
Appellee-Plaintiff Senior Judge
The Honorable Michael J. Cox,
Magistrate
Trial Court Cause No.
82C01-1809-F5-6235
Crone, Judge.
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Case Summary
[1] Following a guilty plea, Christopher Biggs was sentenced to 1000 days executed
for level 5 felony failure to register as a sex offender. He appeals his sentence
pursuant to Indiana Appellate Rule 7(B). Finding that he has failed to meet his
burden of demonstrating that his sentence is inappropriate in light of the nature
of the offense and his character, we affirm.
Facts and Procedural History
[2] In 2008, Biggs was convicted of class D felony sexual battery. As a result of his
conviction, he was required to register as a sex offender pursuant to Indiana
Code Section 11-8-8-17. He executed the registration forms acknowledging his
awareness of his obligations and duties to register and to re-register in the event
of an address change. In 2010, 2012, and 2017, he accumulated felony
convictions for failure to register as required by the statute. In August 2018, a
law enforcement officer went to Biggs’s most recent registered address and was
informed by the current residents that Biggs had moved out three months
before. Biggs’s whereabouts were unknown until September 14, 2018, when he
was arrested for failure to notify the sheriff’s department of his address change
within seventy-two hours of such change. Ind. Code § 11-8-8-11.
[3] The State charged Biggs with level 5 felony failure to register as a sex or violent
offender (with prior conviction for the same), level 6 felony failure to register as
a sex or violent offender, and a habitual offender enhancement. Biggs agreed to
plead guilty, without a written plea agreement, to the level 5 and level 6 felonies
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in exchange for the dismissal of the habitual offender count. The trial court
merged the level 6 felony conviction and entered judgment only on the level 5
felony count. The court sentenced Biggs to 1000 days executed. Biggs now
appeals his sentence. Additional facts will be provided as necessary.
Discussion and Decision
[4] Biggs asks that we reduce his sentence pursuant to Indiana Appellate Rule 7(B),
which states that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [this] Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” “Sentencing 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). When a defendant requests appellate review
and revision of his sentence, we have the power to affirm or reduce the
sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our
review, our principal role is to leaven the outliers, focusing on the length of the
sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.
2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). We do “not
look to see whether the defendant’s sentence is appropriate or if another
sentence might be more appropriate; rather, the test is whether the sentence is
‘inappropriate.’” Id. at 581 (quoting Barker v. State, 994 N.E.2d 306, 315 (Ind.
Ct. App. 2013), trans. denied (2014)). The defendant bears the burden of
persuading this Court that his sentence meets the inappropriateness standard.
Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).
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[5] In considering the nature of Biggs’s offenses, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Green v.
State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). Biggs
was convicted of level 5 felony failure to register as a sex or violent offender.
See Ind. Code § 11-8-8-17(a) (“A sex or violent offender who knowingly or
intentionally … fails to register” when, how, and where the statute requires,
“makes a material misstatement or omission while registering,” or “does not
reside at [his] registered address or location” commits a level 6 felony). Biggs’s
previous unrelated convictions for failure to register as a sex offender account
for the elevation of his current offense from a level 6 felony to a level 5 felony.
See Ind. Code § 11-8-8-17(b) (failure to register as a sex offender is level 5 felony
if offender has a prior unrelated conviction for an offense under the same
section). A level 5 felony carries a sentencing range of one to six years with an
advisory term of three years. Ind. Code § 35-50-2-6.
[6] Here, Biggs was sentenced to 1000 days, or approximately 2.74 years. “[A]
defendant bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach
v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. Biggs’s
burden is even greater here, because his sentence is approximately three months
below the advisory term. He has not met that heavy burden. The only relevant
detail of his status offense is that he moved and did not register his change of
address for three months, well past the seventy-two-hour window for doing so.
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Ind. Code § 11-8-8-11. The nature of Biggs’s offense simply does not militate
toward a reduced sentence.
[7] Nor does Biggs’s character. We conduct our review of his character by
engaging in a broad consideration of his qualities. Aslinger v. State, 2 N.E.3d 84,
95 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d 571.
“When considering the character of the offender, one relevant fact is the
defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.
App. 2015), trans. denied (2016). Biggs’s criminal record is extensive and spans
three decades. In addition to his four felony convictions for failure to register as
a sex offender, he has convictions for class D felony sexual battery (which
triggered the registration requirement), class C felony burglary, class D felony
theft, and misdemeanor convictions for sexual battery, conversion, marijuana
possession, false informing, and driving without a license. He has one
probation revocation, and the probation department rated him as a high risk to
re-offend. Appellant’s App. Vol. 2 at 32. His guilty plea saved the State the
expense of a trial, but it also benefited Biggs in the form of a dismissal of his
habitual offender count.
[8] To the extent that Biggs relies on his low mental aptitude scores as an excuse or
explanation for his failure to register as required by statute, we note that the
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trial court read the psychologist’s report provided by Biggs, 1 considered the
information during sentencing, and concluded that Biggs is “low functioning.”
Tr. Vol. 2 at 18. However, the court also emphasized the psychologist’s
conclusion that Biggs “is capable of understanding the difference between right
and wrong and obeying the rules.” Id. While we sympathize with those who
suffer from attention deficits, we reject Biggs’s characterization of his 1000-day
sentence as a “de facto sentence of ‘life imprisonment on an installment plan.’”
Appellant’s Br. at 12. Biggs has failed to meet his burden of demonstrating that
his sentence is inappropriate. Consequently, we affirm.
[9] Affirmed.
Baker, J., and Kirsch, J., concur.
1
Neither the psychologist’s report nor any other documents pertaining to Biggs’s mental diagnosis is
included in the record below as an exhibit or in the presentence investigation report. As such, we have no
basis for including them in our review, except for certain statements included in the sentencing transcript.
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