Andrew Shotts v. State of Indiana ( 2016 )

FILED
Apr 27 2016, 8:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Shotts, April 27, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1509-CR-1347
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Seiter,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G20-1404-FB-17437
Baker, Judge.
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[1] Andrew Shotts appeals his conviction and sentence for Unlawful Possession of
a Firearm by a Serious Violent Felon,1 a Class B Felony. Shotts argues that he
was seized in violation of the Fourth Amendment to the United States
Constitution and that evidence obtained as a result of this seizure should not
have been admitted at trial. Finding that Shotts’s seizure was authorized
pursuant to the United States Supreme Court’s decision in Michigan v. Summers,
452 U.S. 692 (1981), we find no error in the trial court’s refusal to exclude
evidence obtained as a result of the seizure. We also find that the trial court did
not err in sentencing Shotts and that his sentence is not inappropriate.
Accordingly, we affirm the trial court and remand for the limited purpose of
vacating Shotts’s conviction and sentence for Visiting a Common Nuisance, 2 a
Class B misdemeanor, as the charge had been dismissed before trial.
Facts 3
[2] On April 4, 2014, officers of the Indianapolis Metropolitan Police Department
(IMPD) executed a search warrant for a house located at 913 North LaSalle
Street in Marion County. The warrant authorized the search and seizure of
heroin, as well as evidence related to drug trafficking, and the arrest of a man by
1
Ind. Code § 35-47-4-5.
2
Ind. Code § 35-48-4-13.
3
We held oral argument in this case on March 22, 2016, in Indianapolis. We would like to thank both
parties for their exceptional oral advocacy.
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the name of Joshua Summers. In executing the search, IMPD officers were
initially joined by members of the IMPD SWAT team.
[3] Upon entering the house, the officers found seven people and a dog. The
officers handcuffed the seven individuals and took them to the downstairs
dining room. Several officers were assigned to get basic information from the
detainees, while others conducted the search. The SWAT team then left to
respond to a shooting that had occurred nearby. The remaining officers
interviewed the detainees and conducted a search of the house, eventually
finding heroin, cocaine, suboxone, and drug paraphernalia.
[4] While the search was ongoing, one of the detectives, Detective Kessey, looked
out of the window and noticed a car pull up and park in front of the residence.
He then watched an individual, later identified as Andrew Shotts, get out of the
car and approach the residence.4 Detective Kessey alerted the officers
downstairs that Shotts was approaching.
[5] Officer Hemphill was downstairs when he heard Detective Kessey’s warning.
He looked outside and saw Shotts entering the house’s enclosed front porch
area. Officer Hemphill—who was wearing plain clothes, a black mask, and a
black tactical vest that displayed the word “Police” in large letters—asked
Shotts what he was doing and told him to “stop right there.” Tr. p. 34. Shotts
4
It is not clear from the record whether an individual approaching the residence would have had reason to
believe that a search was being conducted inside.
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stated that he was there to see his friend and continued walking into the front
porch area. Officer Hemphill noticed that Shotts had his right hand in his
pocket and ordered Shotts to remove it. Shotts did not do so and continued to
walk towards the front door, again stating that he was there to see his friend.
Shotts passed through the front door and entered the house. Officer Hemphill
again told him to stop, but Shotts continued to move forward, peering around
Officer Hemphill so that he could look into the dining room.
[6] At this point, Officer Hemphill drew his gun. Shotts stopped and again stated
that he was there to see his friend. Officer Hemphill ordered Shotts to remove
his hand from his pocket. Shotts complied, putting both of his hands in the air.
Officer Hemphill grabbed Shotts’s right arm and Shotts attempted to pull away.
Officer Hemphill then spun Shotts down onto a couch and handcuffed him. He
asked Shotts what was in his pocket, and Shotts replied “my gun.” Tr. p. 28.
Officer Hemphill then patted Shotts down and found a purple handgun.
[7] Shotts was arrested and charged with class B felony unlawful possession of a
firearm by a serious violent felon and class B misdemeanor visiting a common
nuisance. Shotts filed a motion to suppress evidence found on his person,
arguing that he had been “detained, arrested, and searched unlawfully and
without a warrant or probable cause.” Appellant’s App. p. 63. On July 22,
2015, the trial court held a simultaneous suppression hearing and bench trial.
At the start of proceedings, the State moved to dismiss the visiting a common
nuisance charge and the trial court granted the motion. Tr. p. 4. The court
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then denied Shotts’s suppression motion, noting that Shotts had ignored Officer
Hemphill’s initial orders to stop. It concluded that because
[t]he defendant kept advancing into the house[,] [t]he court finds
under the totality of the circumstances, it was reasonable [to]
conduct [a] pat down of the defendant, based on the factors
reiterated by the officers during the testimony, and that the pat
down resulted in the lawful recovery of the firearm.
Tr. p. 44. The trial court then found Shotts guilty of unlawful possession of a
firearm by a serious violent felon.
[8] On August 18, 2015, the trial court sentenced Shotts to eighteen years, with
twelve years executed at the Department of Correction, two years executed at
Community Corrections, and four years suspended. The trial court also
sentenced Shotts to 180 days, to run concurrently with his other sentence, for
visiting a common nuisance, despite the fact the State had moved to dismiss
this charge and Shotts had not been convicted of it. 5 Shotts now appeals.
Discussion and Decision
[9] On appeal, Shotts raises several issues related to his seizure, as well as to the
propriety of his sentence. As to the seizure, he argues that the handgun found
on his person should have been suppressed because he was seized in violation
5
Both parties acknowledge that this was error. Appellee’s Br. p. 16.
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of the Fourth Amendment to the United States Constitution.6 As to his
sentence, he argues that the trial court erred in considering his risk assessment
score as an independent aggravator and in failing to exclude his 2009 robbery
conviction from its consideration, as this conviction was itself an element of the
offense of possession of a firearm by a serious violent felon. He also argues that
his sentence is inappropriate in light of the nature of the offense and his
character.
I. Suppression of the Handgun
[10] Shotts first argues that the trial court erred in admitting the handgun into
evidence because it was discovered as the result of an unconstitutional seizure.
The decision to admit or exclude evidence lies within the discretion of the trial
court. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). Accordingly, we review
a trial court’s denial of a motion to suppress evidence deferentially, construing
conflicting evidence in the light most favorable to the ruling. Id. However,
“[w]hen the trial court’s denial of a defendant’s motion to suppress concerns the
constitutionality of a search or seizure . . . it presents a question of law, and we
address that question de novo.” Id.
[11] The Fourth Amendment to the United States Constitution provides that
The right of the people to be secure in their persons . . . against
unreasonable searches and seizures, shall not be violated, and no
6
Shotts makes no argument with regard to the Indiana Constitution.
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Warrants shall issue, but upon probable cause . . . particularly
describing the place to be searched, and the persons or things to
be seized.
The U.S. Supreme Court has recognized a “‘general rule that Fourth
Amendment seizures are “reasonable” only if based on probable cause’ to
believe that the individual has committed a crime.” Bailey v. United States, 133
S. Ct. 1031, 1037 (2013) (quoting Dunaway v. New York, 442 U.S. 200, 213
(1979)). While the Supreme Court has found exceptions to this general rule, it
has been clear that these exceptions are to remain narrow in scope. Dunaway,
442 U.S. at 211; Bailey, 133 S. Ct. at 1044 (Scalia J., concurring). The State
bears the burden of demonstrating that a seizure conducted without probable
cause falls within one of the exceptions. See Taylor v. State, 659 N.E.2d 535, 537
(Ind. 1995).
[12] The State relies on two exceptions to the probable cause requirement, one
identified in Terry v. Ohio, 392 U.S. 1 (1968), which relates to a brief stop and
frisk for weapons, and another identified in Michigan v. Summers, 452 U.S. 692
(1981), which relates to the execution of a search warrant. We believe that
Summers should control our decision in this case.7 However, before we delve
into our discussion of Summers, we find it necessary to discuss some difficulties
we have with portions of the State’s argument under Terry.
7
For this reason we do not address the State’s argument that the officers had probable cause to arrest Shotts.
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A. Terry Stop
[13] The State asserts that it was reasonable for the officers to detain Shotts and that
“[t]hat answer is derived from standards put forth by the Supreme Court of the
United States . . . .” Appellee’s Br. p. 18. The argument that follows makes
numerous citations to cases that rely on both Terry and Summers. Id. at 18-26.
Although the State does not conduct a proper Terry analysis, its argument seems
to rely on Terry’s reasoning to some extent, and, given that the trial court
seemed to rely on Terry as well, tr. p. 44, we will briefly address it.
[14] Under Terry, an officer is permitted to “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989). Because Terry
allows for seizures on less than probable cause, the degree of intrusion caused
by the seizure must be circumscribed. Kolender v. Lawson, 461 N.E.2d 352, 364-
65 (1983) (Brennan J., concurring). Thus, while Terry allows for a brief
investigatory stop, it does not allow for a formal arrest. Kelly v. State, 997
N.E.2d 1045, 1051 (Ind. 2013).
[15] While distinguishing between an investigatory stop and an arrest presents the
greatest difficulty in applying Terry to the facts of this case, the State fails to
address the issue. This distinction is critical, however, as Terry does not allow
us to conclude that it was reasonable for the officers to arrest Shotts on less than
probable cause.
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[16] As the United States Supreme Court has acknowledged, “Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386,
396 (1989). “Determining whether the force used to effect a particular seizure is
‘reasonable’ under the Fourth Amendment requires a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Id. But
“[n]either Federal nor Indiana constitutional jurisprudence has developed a
‘bright line’ test for determining when an investigatory detention moves beyond
merely a Terry stop and becomes an arrest . . . .” Jones v. State, 655 N.E.2d 49,
55 (Ind. 1995). Courts of this State have reached varied conclusions based on
the unique facts presented by different scenarios. See Kelly, 997 N.E.2d at 1051
(defendant ordered out of car at gunpoint and handcuffed was under arrest for
Fourth Amendment purposes); Wright v. State, 766 N.E.2d 1223, 1230-34 (Ind.
Ct. App. 2002) (defendant ordered out of car, handcuffed, but told he was not
under arrest, was not under arrest for Fourth Amendment purposes, but was “in
custody” for Fifth Amendment purposes).8
8
Our Supreme Court stated in Kelly that the test used to distinguish a Terry stop from a formal arrest is:
“would a reasonable person, in the same situation as the defendant, believe she was free to leave?” 997
N.E.2d at 1051; see also Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996) (“It has long been held that an arrest
occurs when a police officer interrupts the freedom o[f] the accused an[d] restricts his liberty of movement.”);
Peterson v. State, 234 N.E.2d 488, 490, 250 Ind. 269, 272 (1968). This test appears to be derived from Henry v.
United States, in which the United States Supreme Court held that an arrest occurs when an officer restricts an
individual’s liberty of movement. 361 U.S. 98, 103 (1959). However, Henry pre-dates Terry by nine years
and was decided at a time when the concept of seizure was synonymous with that of arrest—Terry stops had
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[17] Here, Shotts was stopped at gunpoint and pushed down onto a couch before
being handcuffed. While the State correctly observed at oral argument that
courts have refused to find the use of handcuffs to be wholly determinative, it
has done little else to persuade us that this was a brief investigatory stop rather
than a formal arrest for Terry purposes. We therefore decline the State’s request
to uphold the trial court’s ruling under Terry. Instead, we choose to analyze
this case under Summers, which applies specifically to seizures of individuals
during the execution of search warrants.
B. Michigan v. Summers
[18] In Summers, police were executing a warrant authorizing a search of Summers’s
home for contraband. 452 U.S. at 693. Upon their arrival, they encountered
Summers descending his front steps. Id. The officers then requested that
Summers assist them in gaining entry to his home and detained him while they
searched the premises. Id. The United States Supreme Court found that the
officers acted constitutionally, holding that “a warrant to search for contraband
founded on probable cause implicitly carries with it the limited authority to
not yet been recognized. Clearly, if the “not free to leave” test were applied to an individual who had been
handcuffed, it would follow that he had been arrested, as no one could rightfully say that an individual in
handcuffs would feel free to walk away. But see Payne v. State, 854 N.E.2d 1199, 1204-05 (Ind. Ct. App. 2006)
(applying “not free to leave” test and holding that individual who had consented to being handcuffed “was
not forcibly restrained against his will” and, therefore, not under arrest). This gives us further reason to
hesitate in applying Terry to the facts of this case—in light of the fact that Summers presents an alternative
means of deciding the issue—as our Terry jurisprudence seems to be in need of clarification.
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detain the occupants of the premises while a proper search is conducted.” Id. at
705.
[19] In recognizing this exception, the Supreme Court balanced the intrusion into
the defendant’s liberty against the governmental interests at stake. Id. at 701-03.
As to the intrusion into the defendant’s liberty, the Court noted
(1) that a neutral and detached magistrate had already
“authorized a substantial invasion of the privacy of the
person who resided there,” and that the “detention of one
of the residents while the premises were searched . . . was
surely less intrusive than the search itself,”
(2) the type of detention “is not likely to be exploited by the
officer or unduly prolonged in order to gain more
information, because the information the officers seek
normally will be obtained through the search and not
through detention,” and
(3) because the defendant was detained in his “own residence,
it could add only minimally to the public stigma associated
with the search itself and would involve neither the
inconvenience nor the indignity associated with a
compelled visit to the police station.”
Id. at 701-02.
[20] As to the governmental interests at stake, the Court identified
(1) “the legitimate law enforcement interest in preventing
flight in the event that incriminating evidence is found,”
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(2) “the interest in minimizing the risk of harm to the
officers,” noting that “risk of harm to both the police and
the occupants is minimized if the officers routinely
exercise unquestioned command of the situation,” and
(3) the ability of “the occupants of the premises” to assist in
“the orderly completion of the search,” because their self-
interest may compel them to do things such as open locked
doors, allowing officers to avoid using force and damaging
property.
Id. at 702-03.
[21] While the Summers Court engaged in a balancing of interests to create an
exception to the probable cause requirement, it made clear that the exception it
had created was categorical.
[I]f police are to have workable rules, the balancing of the
competing interests inherent in the Terry principle “must in large
part be done on a categorical basis—not in an ad hoc, case-by-
case fashion by individual police officers.” The rule we adopt
today does not depend upon such an ad hoc determination,
because the officer is not required to evaluate either the quantum
of proof justifying detention or the extent of the intrusion to be
imposed by the seizure.
Id. at 705 n.19 (quoting Dunaway, 442 U.S. at 219-20); see also Bailey, 133 S. Ct.
at 1037-38 (“The rule in Summers extends farther than some earlier exceptions
because it does not require law enforcement to have particular suspicion that an
individual is involved in criminal activity or poses a specific danger to the
officers”). Thus, if a valid warrant exists to search certain property, officers
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have “authority to detain the occupants of the premises while a proper search is
conducted,” without any degree of individualized suspicion. Id. at 705.
[22] The United States Supreme Court has clarified Summers in subsequent cases.
Importantly, the Court has given some specific guidance regarding the amount
of force that may be used to effectuate a detention under Summers. In Muehler v.
Mena, police officers obtained a warrant to search a residence for evidence of
gang activity. 544 U.S. 93, 95-96 (2005). When executing the search, the
officers woke Mena, who was asleep in her bed, handcuffed her at gunpoint,
moved her into a garage, and detained her there for the length of the search. Id.
at 96.
[23] In analyzing this detention under Summers, the Court made clear that
“[i]nherent in Summers’ authorization to detain an occupant of the place to be
searched is the authority to use reasonable force to effectuate the detention.”
Id. at 98-99. Regarding the use of handcuffs specifically, the Court noted
The imposition of correctly applied handcuffs on Mena, who was
already being lawfully detained during a search of the house, was
undoubtedly a separate intrusion in addition to detention in the
converted garage. The detention was thus more intrusive than
that which we upheld in Summers.
***
But this was no ordinary search. The governmental interests in
not only detaining, but using handcuffs, are at their maximum
when, as here, a warrant authorizes a search for weapons and a
wanted gang member resides on the premises. In such inherently
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dangerous situations, the use of handcuffs minimizes the risk of
harm to both officers and occupants. Though this safety risk
inherent in executing a search warrant for weapons was sufficient
to justify the use of handcuffs, the need to detain multiple
occupants made the use of handcuffs all the more reasonable.
Id. at 99-100 (citations omitted). The Court then held that the officers’
detention of Mena in handcuffs for the length of the search was reasonable and
did not violate the Fourth Amendment. Id. at 102.
[24] Summers was further clarified in Bailey v. United States, where the Court made
clear that occupants may only be detained if they are within the immediate
vicinity of the premises to be searched. 133 S. Ct. at 1042-43 (holding that the
search of a residence did not justify the detention of a resident who was not on
the property at the time of the search). From these holdings, it is clear that
Summers allows officers who are executing a valid search warrant to use
reasonable force to detain the occupants of the immediate vicinity of the
premises to be searched for a reasonable period of time, which in many cases
could mean the duration of the search.
[25] Shotts does not argue that the method or the length of his detention was
unreasonable under Summers. Neither does he argue that it was unreasonable
for Officer Hemphill to pat him down once he was handcuffed, as at that point
he had told Officer Hemphill that he was armed.9 Instead, Shotts argues that he
9
We note that Summers does not authorize a pat-down or search of detained individuals. However, Terry
permits “a reasonable search for weapons for the protection of the officer, where he has reason to believe that
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was not an “occupant” of the premises under Summers because he was not a
resident of the house.
[26] Shotts is correct to point out that the United States Supreme Court has never
specified who qualifies as an “occupant.”10 Predictably, courts have reached
different conclusions, with some holding that “occupant” includes only actual
residents, others holding that it includes non-residents clearly associated with
the residence or the criminal activity being investigated, and others holding that
anyone on the premises counts as an “occupant.” See Cotton v. State, 872 A.2d
87, 91 (Md. 2005) (discussing these three lines of cases). Shotts is also correct
that the defendants at issue in Summers, and other United States Supreme Court
cases applying its reasoning, have always been residents of the premises
searched.11 Appellant’s Br. p. 16 n.4.
[27] Shotts argues that the “language and reasoning of Summers strongly suggest the
term ‘occupant’ should be interpreted narrowly.” Appellant’s Br. p. 16. Shotts
is correct that several of the factors the Supreme Court found relevant to its
he is dealing with an armed and dangerous individual . . . .” Terry, 392 U.S. at 27. There is no question that
Officer Hemphill had such reason in this case, as Shotts told Officer Hemphill that he was armed.
10
Although a concurring opinion in Bailey appears to define “occupants” as “persons within the immediate
vicinity of the premises to be searched,” this definition does not appear in the majority opinion. Bailey, 133
S. Ct. at 1043 (Scalia J., concurring). The concurrence makes very clear that it believes the rule in Summers
allows officers to detain, in a reasonable manner, anyone found on the premises. Id. This is because, in the
concurrence’s view, the “Summers exception is appropriately predicated only on law enforcement’s interest in
carrying out the search unimpeded by violence or other disruptions.” Id. at 1044 (emphasis original).
However, this interpretation, while perhaps clearer than the majority’s, garnered the support of only three
justices.
11
The only Indiana case to apply Summers also involved the detention of a resident. Carroll v. State, 822
N.E.2d 1083, 1083 (Ind. Ct. App. 2005).
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decision in Summers do not apply, or are of diminished relevance, when the
government seeks to detain non-residents. As for the intrusion into personal
liberty, it cannot be said that a neutral and detached magistrate had already
“authorized a substantial invasion of the privacy of the person who” was
detained. Summers, 452 U.S. at 701. As for the governmental interests, “the
legitimate law enforcement interest in preventing flight in the event that
incriminating evidence is found” may not apply with the same force to non-
residents, especially those with no observed connection to any criminal activity.
Id. at 702. Furthermore, non-residents are less likely to be able to assist officers
with the search. Id. at 703.
[28] However, we believe that requiring the officers in this case to determine
whether Shotts was a resident before detaining him would diminish the utility
of Summers’ bright-line rule. The very purpose of a bright-line rule is to keep an
officer from having to make an ad hoc determination. Summers made clear that
“the officer is not required to evaluate either the quantum of proof justifying the
detention or the extent of the intrusion to be imposed by the seizure.” Id. at 705
n.19. Requiring the officers to develop suspicion that Shotts was a resident
before detaining him would be to require just such an ad hoc evaluation.
Accordingly, we agree with the conclusion of the Maryland Court of Appeals
that
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[i]t follows, from Summers and Buie,12 that, in executing a warrant
[on premises] where the police are likely to encounter people
who may well be dangerous, they are entitled, for their own
safety and that of other persons, to take command of the
situation and, except for persons who clearly are unconnected
with any criminal activity and who clearly present no potential
danger, essentially immobilize everyone until, acting with
reasonable expedition, they know what they are confronting. It
really cannot be otherwise. The police do not know who may be
at the scene when they arrive. The people they find there, in or
on the property to be searched, are not wearing identifying
labels . . . .
Cotton, 872 A.2d at 92-93.
[29] Though Summers provided a number of justifications for its rule, it recognized
“the interest in minimizing the risk of harm to the officers” as “sometimes of
greater importance.” Summers, 452 U.S. at 702.
When law enforcement officers execute a search warrant, safety
considerations require that they secure the premises, which may
include detaining current occupants. By taking ‘unquestioned
command of the situation,’ the officers can search without fear
that occupants, who are on the premises and able to observe the
course of the search, will become disruptive, dangerous, or
otherwise frustrate the search.
12
Md. v. Buie, 494 U.S. 325 (1990) (holding that the Fourth Amendment permits a limited protective
sweep of a residence in conjunction with the in-home execution of an arrest warrant under appropriate
circumstances).
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Bailey, 133 S. Ct. at 1038 (quoting Summers, 452 U.S. at 703). Thus, for
purposes of an analysis under Summers, we read the word “occupant” to mean
anyone who is in the immediate vicinity of the premises to be searched at the
time the search is executed. In this case, Shotts became an occupant when he
entered the house and his detention was therefore justified under Summers.13 As
no Fourth Amendment violation occurred, the trial court did not err in denying
Shotts’s motion to suppress the handgun or in allowing the handgun into
evidence.
[30] As a final note, we acknowledge that it seems as though Shotts should not have
been allowed to enter the house in the first place. Though the State frequently
refers to the scene as “secured,” the record does not indicate what steps law
enforcement generally takes to secure search scenes or whether the officers here
took any steps to secure this particular scene. Appellee’s Br. p. 18. The U.S.
Supreme Court has addressed the issue of individuals trying to enter search
scenes and noted that “[o]fficers can and do mitigate that risk . . . by taking
routine precautions, for instance by erecting barricades or posting someone on
the perimeter or at the door.” Bailey, 133 S. Ct. at 1039. We would hope that
officers usually take routine precautions such as these and that this case is an
aberration.
13
Here, we do not deal with a situation in which the officers either ordered or invited Shotts to enter the
house. If such had been the case, we would have reached a different result. The purposes behind the
Summers rule would not be served in such an instance, as the rule is not intended simply to provide officers
with an opportunity to detain individuals.
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II. Sentencing Issues
[31] Shotts raises several issues related to his sentence. Initially, we must address
the fact that the trial court sentenced Shotts to 180 days, to run concurrently
with his other sentence, for visiting a common nuisance. Both Shotts and the
State agree that this was error. Although the State originally charged Shotts
with visiting a common nuisance, it moved to dismiss the charge at trial and the
trial court granted the motion. Tr. p. 4. Consequently, Shotts was neither tried
nor convicted of the charge and we must remand to the trial court so that it may
vacate Shotts’s conviction and sentence for visiting a common nuisance.
[32] As to Shotts’s conviction for being a violent felon in possession of a firearm, the
trial court sentenced him to eighteen years, with twelve years executed at the
Department of Correction, two years executed at Community Corrections, and
four years suspended. This sentence fell within the statutory range—“[a]
person who commits a Class B felony . . . shall be imprisoned for a fixed term
of between six (6) and twenty (20) years, with the advisory sentence being ten
(10) years.” Ind. Code § 35-50-2-5. However, Shotts argues that the trial court
erred by relying on improper factors to enhance his sentence. He also argues
that his sentence is inappropriate in light of the nature of the offense and his
character.
A. Aggravating Factors
[33] In general, sentencing determinations lie within the discretion of the trial court.
Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). This includes a trial court’s
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decision to increase or decrease a presumptive sentence because of aggravating
or mitigating circumstances. Id. However, a trial court errs if it considers
aggravating or mitigating circumstances that are improper as a matter of law.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on other grounds
on reh’g, 875 N.E.2d 218 (Ind. 2007).
[34] Shotts believes that the trial court erred by considering two improper
aggravating circumstances—(1) the fact that his pre-sentence investigation (PSI)
report listed him as “very high risk” to reoffend according to the Indiana Risk
Assessment System (IRAS), and (2) the fact that he was convicted of robbery in
2009, as this offense served as the basis for his serious violent felon in
possession of a firearm conviction.
[35] As to his IRAS score, Shotts is correct to note that “the offender risk assessment
scores do not in themselves constitute, and cannot serve as, an aggravating or
mitigating circumstance.” J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010). This is
because such assessments are prepared by probation officers and other
administrators relying on data and evaluations that “are not necessarily
congruent with a sentencing judge’s findings and conclusions regarding relevant
sentencing factors.” Malenchik v. State, 928 N.E.2d 564, 573 (Ind. 2010).
Accordingly, they are neither “intended nor recommended to substitute for the
judicial function of determining the length of sentence appropriate for each
offender.” Id. (emphasis added). However,
such evidence-based assessment instruments can be significant
sources of valuable information for judicial consideration in
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deciding whether to suspend all or part of a sentence, how to
design a probation program for the offender, whether to assign an
offender to alternative treatment facilities or programs, and other
such corollary sentencing matters.
Id.
[36] Shotts argues that the trial court improperly considered his “very high risk” to
reoffend assessment as an aggravating factor affecting the length of his sentence.
He points out that the trial court listed “crim[inal] history, very high risk, on
parole at time of offense” as aggravating factors in its written sentencing order.
Appellant’s App. p. 17. Shotts also notes that the trial court emphasized the
score in its oral sentencing statement. Tr. p. 67.
[37] However, there is no indication from the trial court’s use of the words “very
high risk” in its written sentencing order that it meant to reference Shotts’s
IRAS score. Given Shotts’s lengthy criminal history, which will be discussed
later, the trial court had evidence before it from which it could reach its own,
independent conclusion that Shotts was at a very high risk to reoffend.
Accordingly, there is no reason to believe the trial court abdicated its judicial
function in this case.
[38] As to the trial court’s mention of Shotts’s IRAS score in its oral sentencing
statement, a review of the record makes clear that the trial court was
considering the score in light of what type, rather than length, of sentence to
impose. The trial court considered different rationales for placing individuals in
the Department of Correction and concluded, with reference to Shotts’s IRAS
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score, that this was an appropriate way for him to serve his sentence. Tr. p. 67.
As noted earlier, there is nothing improper in a trial court using an IRAS score
to determine how an individual should serve his sentence.
[39] Shotts next argues that the trial court erred by considering his 2009 robbery
conviction as an aggravating factor, as this conviction was an element of the
current charge. Our Supreme Court has held that, “[w]here a trial court’s
reason for imposing a sentence greater than the advisory sentence includes
material elements of the offense, absent something unique about the
circumstances that would justify deviating from the advisory sentence, that
reason is ‘improper as a matter of law.’” Gomillia v. State, 13 N.E.3d 846, 852-53
(Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491).
[40] Shotts acknowledges that, in this case, “the trial court did not state specifically
that it considered the robbery conviction,” but he argues that “there are strong
indications that the robbery conviction played a role in the court’s decision.”
Appellant’s Br. p. 40. We see no such indications. Shotts has a substantial
criminal history aside from his 2009 robbery conviction that the trial court
could have relied upon to enhance his sentence. There is simply no reason to
believe that the trial court erred in the way that Shotts hypothesizes.
Accordingly, we find no error in the sentencing order.
B. Appropriateness of Sentence
[41] Finally, Shotts argues that his sentence is inappropriate and asks us to revise it
to the advisory term of ten years. Under Indiana Appellate Rule 7(B), “[t]he
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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.” The burden
is on the defendant to persuade us that his sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[42] As to the nature of the offense, Shotts argues that it “was no more serious than
any other conviction for unlawful possession of a firearm by a serious violent
felon.” Appellant’s Br. p. 42. He also notes that the trial court did not find this
case to be the “most egregious.” Tr. p. 67. As to his character, Shotts notes
that he is very close with his family and that his brother is willing to employ
him once he is released. Appellant’s Br. p. 42-43. He points out that he has
completed his GED and has received a building trades vocational certificate
from Ivy Tech. Id. at 43. He acknowledges his criminal history but notes that,
at thirty years old, he is still relatively young. He points out that he was honest
with the trial court about his substance abuse problems and that he is willing to
participate in treatment. Id.
[43] We acknowledge that there is nothing about the nature of Shotts’s offense that
would warrant enhancing his sentence. All that the State was required to show
was that Shotts was previously convicted of a felony listed in the statute and
that he then knowingly or intentionally possessed a firearm. Ind. Code § 35-47-
4-5. It is difficult to see how one could commit this crime, and this crime alone,
in a particularly heinous manner.
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[44] However, we cannot say that Shotts’s sentence is inappropriate in light of his
character. As a minor, Shotts’s was adjudicated a delinquent child for truancy
and possession of marijuana. Shotts has continued his criminal activity into
adulthood, amassing convictions for escape, criminal recklessness, possession
of marijuana, failure to stop at an accident, public intoxication, false reporting,
auto theft, and carjacking. Appellee’s Br. p. 39. He has previously had his
probation revoked after consistent failure to report or comply with the
conditions, and he was on parole at the time of this offense. Simply put, this
evidence indicates a complete lack of respect for the law. The trial court could
conclude that Shotts would continue his criminal activity despite his
employment or any help he may receive from his family. We cannot say that
the enhanced sentence imposed by the trial court was inappropriate under these
circumstances.
[45] The judgment of the trial court is affirmed and remanded with instructions to
vacate Shotts’s conviction and sentence for visiting a common nuisance.
Bradford, J., and Pyle, J., concur.
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