Michael Norris v. State of Indiana

FILED
Nov 14 2018, 5:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Norris, November 14, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-86
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia Gooden,
Appellee-Plaintiff. Judge
The Honorable Richard E.
Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1702-F4-4925
Pyle, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 1 of 20
Statement of the Case
[1] Michael Norris (“Norris”) appeals his convictions following a bifurcated jury
trial for Level 4 felony possession of a firearm by a serious violent felon,1 Level
6 felony resisting law enforcement,2 and Class A misdemeanor resisting law
enforcement.3 Norris argues that: (1) the State committed prosecutorial
misconduct during closing argument; (2) the two convictions for resisting law
enforcement violate the continuous crime doctrine; and (3) the trial court
improperly sentenced him.
[2] We conclude that the State did not commit prosecutorial misconduct; Norris’
misdemeanor conviction for resisting law enforcement violates the continuous
crime doctrine; and the trial court did not improperly sentence Norris. The
judgment of the trial court is affirmed in part, reversed in part, and remanded
with instructions for the trial court to vacate the Class A misdemeanor resisting
law enforcement conviction and enter a new sentencing order and abstract of
judgment to reflect the vacated conviction.
[3] We affirm in part, reverse in part, and remand with instructions.
Issues
1
IND. CODE § 35-47-4-5.
2
I.C. § 35-44.1-3-1.
3
I.C. § 35-44.1-3-1.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 2 of 20
1. Whether the prosecutor’s statement during closing argument constitute
prosecutorial misconduct.
2. Whether the two resisting law enforcement convictions violate the
continuous crime doctrine.
3. Whether the trial court improperly sentenced Norris.
Facts
[4] At approximately 4:00 a.m. on February 4, 2017, officers from the Beech Grove
Police Department responded to a report of a disturbance at a residence.
Officer Lee Huffman (“Officer Huffman”) arrived on scene and was directed to
a vehicle that was stopped in an alley behind the residence. Officer Huffman
observed a silver van in the alley pull away and drive northbound. He followed
the van and using his in-car radar unit, determined that the van was traveling
forty-eight (48) miles per hour in an area with a speed limit of twenty-five (25)
miles per hour. Officer Huffman initiated a traffic stop and activated the
emergency lights on his marked police car. The van did not stop and
accelerated to a higher speed. Officer Huffman then turned on his siren. The
van continued driving at a high rate of speed and eventually crashed into a tree.
[5] Norris, the driver and sole occupant, stumbled out of the van. Officer Huffman
observed Norris “reaching into his waistband area or pockets.” (Tr. 118).
Officer Huffman could not tell exactly what he was reaching for, but “he was
reaching for something.” (Tr. 118). Norris then fled northbound toward a tree
line and Officer Huffman, who was in a fully marked police uniform, “yell[ed]
at him to stop, get on the ground, police.” (Tr. 117). As Norris fled, Officer
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 3 of 20
Huffman observed Norris toss an object near a tree. Officer Huffman could not
see what the object was. Norris ran to a ravine, where he jumped and rolled
down it. Officer Huffman pursued Norris and was able to apprehend him.
[6] Officer Huffman returned to the scene of the accident with Norris and informed
an assisting officer of the “general area” where he had seen Norris throw an
object to the ground. (Tr. 120, 135). The assisting officer located a Smith &
Wesson nine-millimeter handgun next to a tree on top of some leaves “within
seconds” of Officer Huffman advising of the area where the object was thrown.
(Tr. 136).
[7] On February 6, 2017, the State charged Norris with: Count I, unlawful
possession of a firearm by a serious violent felon, a Level 4 felony; Count II,
resisting law enforcement, a Level 6 felony; Count III, possession of a
controlled substance, a Level 6 felony; and Count IV, resisting law
enforcement, a Class A misdemeanor.4 A one-day bifurcated jury trial was held
on November 30, 2017. The jury was instructed that in the first phase of the
trial, it would determine whether Norris knowingly or intentionally possessed a
firearm as charged in Count I and on the two resisting law enforcement counts.
The jury was also instructed that it would determine whether the possession of
a firearm was legal or illegal during the second phase of the trial.
4
The State dismissed Count III in the charging information on June 9, 2017. While the misdemeanor
resisting law enforcement count was Count IV in the charging information, it was listed as Count III in the
jury instructions and verdict forms. It was listed as Count IV in the sentencing order.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 4 of 20
[8] The prosecutor argued the following during closing arguments for the first
phase of the trial:
Now we get to the possession of the firearm. Is Mr. Norris the
unluckiest man in Beech Grove that on this day, he decides that
he’s going to flee from police in [a] car, crashes that car, runs on
foot, and then rolling down a ravine, and then, lo and behold,
just where he happens to be after doing that, there’s a gun that
he’s not allowed to possess – that it’s unlawful for him to have.
(Tr. 160) (emphasis added). Counsel for Norris objected, stating, “[t]here’s no
evidence that it’s unlawful. That’s the whole point of bifurcating the trial.” (Tr.
160). He requested an admonishment and also moved for a mistrial “just for
the purposes of making the record.” (Tr. 161). The trial court admonished the
jury as follows:
All right. Ladies and gentlemen of the jury, the only issue as far
as the gun is whether he possessed it at this point. Whether it
was unlawful or not has not yet been determined, and that will be
covered in the instructions. Okay? All right.
(Tr. 161). The prosecutor then argued to the jury, without objection, that the
reason, “[Norris] fled after that accident knowing it was – he was injured –
because he had to get rid of a gun, and that’s what he did.” (Tr. 162). Counsel
for Norris then argued in closing:
There’s a lot of reasons why a young black man might run, even
before he knows that it’s a police officer. He’s sitting in an alley.
He sees a car creeping up behind him. That doesn’t mean that
he’s running because he’s got this gun. There’s all kinds of
reasons that he could be running, none of them right, but still
reasons.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 5 of 20
(Tr. 168). On rebuttal, the prosecutor argued, “he has a gun he is not supposed
to have. He needed to get it – needed to get it away from his body.” (Tr. 171).
Counsel for Norris again objected, and the trial court overruled the objection.
[9] In the first phase of the trial, the jury returned guilty verdicts on the possession
aspect of Count I and the two resisting law enforcement counts. Norris then
waived his right to a jury trial for the second phase of the trial on his status as a
serious violent felon. Norris admitted to the charged prior conviction alleged in
support of the serious violent felon charge. The trial court conducted a
sentencing hearing on December 18, 2017. For the Level 4 felony possession of
a firearm by a serious violent felon conviction, the trial court sentenced Norris
to twelve (12) years, with eight (8) years executed in the Department of
Correction, two (2) years executed on Marion County Community Corrections,
and two (2) years suspended to probation. For the Level 6 felony resisting law
enforcement conviction, the court sentenced Norris to 636 days in the
Department of Correction. For the Class A misdemeanor resisting law
enforcement conviction, the court sentenced Norris to one (1) year in the
Department of Correction and ordered all counts to run concurrently. Norris
now appeals.
Decision
[10] On appeal, Norris argues that: (1) the State committed prosecutorial
misconduct; (2) his two convictions for resisting law enforcement violate the
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 6 of 20
continuous crime doctrine; and (3) the trial court improperly sentenced him.
We will address each of these arguments in turn.
1. Prosecutorial Misconduct
[11] First, Norris asserts that two of the prosecutor’s closing statements constituted
prosecutorial misconduct. When reviewing a claim of prosecutorial
misconduct, we must first consider whether the prosecutor engaged in
misconduct. Williams v. State, 724 N.E.2d 1070, 1080 (Ind. 2000), reh’g denied,
cert. denied. “We then consider whether the alleged misconduct placed the
defendant in a position of grave peril to which [he] should not have been
subjected.” Id. “Whether a prosecutor’s argument constitutes misconduct is
measured by reference to case law and the Rules of Professional Conduct.”
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “The gravity of the peril is
measured by the probable persuasive effect of the misconduct on the jury’s
decision rather than the degree of impropriety of the conduct.” Id. In addition
to the persuasiveness of a comment, a court should also consider the strength of
the State’s case. Oldham v. State, 779 N.E.2d 1162, 1175 (Ind. Ct. App. 2002),
trans. denied. “To preserve a claim of prosecutorial misconduct, the defendant
must—at the time the alleged misconduct occurs—request an admonishment to
the jury, and if further relief is desired, move for a mistrial.” Jerden v. State, 37
N.E.3d 494, 498 (Ind. Ct. App. 2015). Failure to do so results in waiver. Id.
[12] Norris asserts that the prosecutor’s repeated statements to the jury that he was
not legally allowed to have a gun, when the State had not presented any
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 7 of 20
evidence to support this assertion, put him in “grave peril” and had a strong
“probable persuasive effect” on the jury. (Norris’ Br. 15). Specifically, he cites
the following statements:
Now we get to the possession of the firearm. Is Mr. Norris the
unluckiest man in Beech Grove that on this day, he decides that
he’s going to flee from police in car, crashes that car, runs on
foot, and then rolling down a ravine, and then, lo and behold,
just where he happens to be after doing that, there’s a gun that
he’s not allowed to possess – that it’s unlawful for him to have.
* * *
What are you reaching for? You’re going to reach for what – a
cell phone? – and risk getting shot by the police officer who’s
chasing you? No, he has a gun he is not supposed to have. He
needed to get it – needed to get it away from his body.
(Tr. 160, 171).
[13] A prosecutor must confine closing argument to comments based only upon the
evidence in the record. Lambert v. State, 743 N.E.2d 719, 734 (Ind. 2001), reh’g
denied, cert. denied. Further, Indiana Professional Conduct Rule 3.4(e) provides:
A lawyer shall not … in trial, allude to any matter that the lawyer
does not reasonably believe is relevant or that will not be
supported by admissible evidence, assert personal knowledge of
facts in issue except when testifying as a witness, or state a
personal opinion as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt or innocence
of an accused.
[14] The prosecutor’s first statement was misconduct, but it did not put Norris in
grave peril. This was a one-day trial. A substantial portion of the morning was
devoted to jury voir dire, and the court’s fifteen preliminary instructions were
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 8 of 20
read to the jurors following their lunch break. Among other things, these
preliminary instructions advised the jury that the defendant is innocent and that
the State has the burden to prove that the defendant is guilty beyond a
reasonable doubt of every essential element of the charged offenses. The
preliminary instructions also stated:
The trial of Count I will be in two stages. In the first stage, there
will be a trial on the issue of whether the Defendant knowingly or
intentionally possessed the firearm as charged. If you find
beyond a reasonable doubt, that the defendant knowingly or
intentionally possessed the firearm as charged, there will be a
second stage of the trial. In the second stage, there will be a trial
on the issue of whether the possession of the firearm was legal or
illegal.
(Tr. 100). The final instructions referred the jury to the court’s preliminary
instructions and again advised the jurors that the trial on Count I was in two
stages. Thus, the jury was properly instructed on the procedures for the trial
and the elements of the charged offenses.
[15] Second, our review of the transcript reveals that the prosecutor did not
introduce any evidence during the first phase of the trial to show that Norris
was not legally allowed to possess a gun. While it was improper for the
prosecutor to tell the jury that “there’s a gun that [Norris is] not allowed to
possess – that is unlawful for him to have[,]” the trial court immediately issued
the following admonishment to the jury:
All right. Ladies and gentlemen of the jury, the only issue as far
as the gun is whether he possessed it at this point. Whether it
was unlawful or not has not yet been determined, and that will be
covered in the instructions. Okay? All right.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 9 of 20
(Tr. 161). If the trial court gives an admonishment, it may be considered in
determining whether the misconduct was harmless. Bonner v. State, 650 N.E.2d
1139, 1142 (Ind. 1995). Accordingly, we find that, in this case, the misconduct
committed by the prosecutor was adequately addressed by the trial court’s
admonishment, and Norris has not shown that the prosecutor’s statements
placed him in grave peril.
[16] Concerning the prosecutor’s statement in rebuttal that Norris was “not
supposed to have” a gun, we find that this statement was designed to counter
Norris’ closing argument that “he had motives to flee other than the crime
charged – that is, to avoid arrest on unrelated matters.” (Norris’ Br. 16). See
Cooper, 854 N.E.2d at 836 (explaining that “[p]rosecutors are entitled to respond
to allegations and inferences raised by the defense even if the prosecutor’s
response would otherwise be objectionable”). That said, to the extent that
Norris argues that the prosecutor’s statements constitute prosecutorial
misconduct, he invited any such error. “‘A party may not invite error, then
later argue that the error supports reversal, because error invited by the
complaining party is not reversible error. ’” Booher v. State, 773 N.E.2d 814, 822
(Ind. 2002) (citing Ellis v. State, 707 N.E.2d 797, 803 (Ind. 1999) (quoting
Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995), reh’g denied)).
[17] Lastly, any probable persuasive effect was further lessened by the overall
strength of the State’s case. Where there is overwhelming independent
evidence of a defendant’s guilt, error made by a prosecutor during the closing
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 10 of 20
argument may be harmless. Coleman v. State, 750 N.E.2d 370, 375 (Ind. 2001).
Here, Norris fled from the police, crashed his vehicle, fled from the scene, an
officer observed him throw an object, and a gun was recovered “within
seconds” in the area where he was observed to have thrown an object. (Tr.
136).
[18] In light of the instructions, the trial court’s admonishment to the jury, and the
overall strength of the State’s case, we conclude that Norris has failed to show
that the statements subjected him to grave peril to which he would not have
been subjected otherwise.5 See Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014)
(explaining that a claim of prosecutorial misconduct involves both a showing
that the prosecutor engaged in misconduct and that the misconduct placed the
defendant in a position of grave peril), reh’g denied.
2. Continuous Crime Doctrine
[19] Norris next argues that his two resisting law enforcement convictions violate
the continuous crime doctrine. Specifically, he argues that the trial court erred
when it entered judgment of convictions on the two counts because they were
based on one continuous incident, violating the continuous crime doctrine. The
continuous crime doctrine is a category of Indiana’s prohibition against double
5
Although the prosecutor’s statements did not rise to the level of prosecutorial misconduct, we do not
condone the State’s failure to follow instructions. The State should never have sought to draw the jury’s
attention to Norris’s inability to possess a firearm during phase one of the trial.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 11 of 20
jeopardy. It provides that, under such circumstances, a defendant cannot be
charged multiple times for the same offense. See Hines v. State, 30 N.E.3d 1216,
1220 (Ind. 2015). The State agrees with Norris. Both Norris and the State ask
that we reverse the conviction for Class A misdemeanor resisting law
enforcement to resolve the continuous crime doctrine violation.
[20] A person commits the offense of Class A misdemeanor resisting law
enforcement by fleeing from a law enforcement officer after the officer has, by
visible or audible means, identified himself and ordered the person to stop. I.C.
§ 35-44.1-3-1(a)(3). The offense is a Level 6 felony if the person “uses a vehicle
to commit the offense.” I.C. § 35-44.1-3-1(b)(1)(A).
[21] This Court has held in several cases that a defendant cannot be convicted of
both misdemeanor and felony resisting law enforcement when he or she flees in
a vehicle, gets out, and immediately flees on foot. See, e.g., Lewis v. State, 43
N.E.3d 689, 691 (Ind. Ct. App. 2015); Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct.
App. 2004). In both of these cases, the defendant fled from the police in a
vehicle, got out of the vehicle, and continued to flee from the police on foot.
He was charged and convicted of both misdemeanor and felony resisting law
enforcement and this Court vacated the misdemeanor resisting convictions.
Lewis, 43 N.E.2d at 691; Nevel, 818 N.E.2d at 5.
[22] The instant case is in line with the above cited cases. Norris’ actions of fleeing
by vehicle and then on foot constitute one continuous act of resisting law
enforcement, and we hold that convictions on both counts cannot stand. Lewis,
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 12 of 20
43 N.E.2d at 691; Nevel, 818 N.E.2d at 5. Our holdings are also consistent with
our supreme court’s decision in Hines, 30 N.E.3d at 1220, where the court
clarified that the continuous crime doctrine applies “only where a defendant has
been charged multiple times with the same ‘continuous’ offense.” Our supreme
court further explained that “[t]he Legislature, not this Court, defines when a
criminal offense is continuous, e.g. not terminated by a single act or fact but
subsisting for a definite period and covering successive, similar occurrences.”
Id. at 1219. We hereby remand this case to the trial court with instructions to
vacate Norris’ conviction for Class A misdemeanor resisting law enforcement
and to amend the abstract of judgment, chronological case summary, and any
other relevant court documents to reflect the vacated Class A misdemeanor
conviction.
3. Sentencing
[23] Norris argues that the trial court improperly sentenced him. Specifically, he
argues that the trial court abused its discretion and his sentence is inappropriate
in light of the nature of the offense and his character. We will address each
argument in turn.
A. Abuse of Discretion
[24] Norris’ abuse of discretion argument has two components. First, he argues that
the trial court failed to recognize a mitigating factor. Alternatively, he argues
that the trial court relied on an improper aggravating factor. Sentencing
decisions rest within the sound discretion of the trial court. Anglemyer v. State,
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 13 of 20
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
So long as the sentence is within the statutory range, it is subject to review only
for an abuse of discretion. Id. An abuse of discretion will be found where the
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 may abuse its discretion in a number of ways,
including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490–
91.
[25] Turning to his first contention, Norris specifically argues that the trial court
failed to recognize as a mitigating factor his admission that he had a prior
conviction that made him a serious violent felon. In support of this argument,
he contends that his decision to admit and waive phase two of his trial “saved
the trial court, the jury, and the State significant time and resources.” (Norris’
Br. 24). “‘The finding of mitigating factors is not mandatory and rests within
the discretion of the trial court.’” Page v. State, 878 N.E.2d 404, 408 (Ind. Ct.
App. 2007) (quoting O’Neil v. State, 719 N.E.2d 1243, 1244 (Ind. 1999)), trans.
denied. In order to show that the trial court abused its discretion in failing to
find a mitigating factor, the defendant must establish that the mitigating
evidence is both significant and clearly supported by the record. Rogers v. State,
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 14 of 20
958 N.E.2d 4, 9 (Ind. Ct. App. 2011). “‘A guilty plea is not necessarily a
mitigating factor where the defendant receives substantial benefit from the plea
or where evidence against the defendant is so strong that the decision to plead
guilty is merely pragmatic.’” Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App.
2013) (quoting Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied), reh’g denied, trans. denied.
[26] Here, the State possessed documentation in the form of the charging
information, sentencing order, and judgment of conviction for Norris’ prior
felony conviction that made him a serious violent felon such that the decision to
admit was merely pragmatic.6 Not only was the State ready with the necessary
documents to prove its case, but the jury was already empaneled and prepared
for phase two of the proceedings. Accordingly, we conclude that the trial court
did not abuse its discretion.
[27] Next, Norris argues that the trial court abused its discretion because it relied on
his prior 2012 resisting law enforcement conviction as an aggravating factor
when it was an element of the offense. Norris acknowledges that the trial court
noted it “would not consider the prior conviction as an aggravator,” but argues
that the trial court’s statement that “what weigh’s [sic] heavy on my mind is the
resistings in these cases” was an improper aggravator as a matter of law.
6
While this was an admission to an element of the crime rather than a guilty plea to a count, the trial court
and the parties recognized that the admission had a similar significance to a guilty plea.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 15 of 20
(Norris’ Br. 26) (Tr. 206). However, Norris does not quote the trial court’s
entire statement. In full, the trial court stated:
I think what weighs heavy on my mind is the resistings in these
cases. In one case, somebody was hurt. In this case, somebody
very well could have been hurt and it just shows a desperation
not to be caught and not to be a person that -- to avoid the
consequences of your actions and your history.
(Tr. 206).
[28] Norris is correct that it is improper as a matter of law to find that a material
element of a crime is an aggravating circumstance. Gleason v. State, 965 N.E.2d
702, 711 (Ind. Ct. App. 2012). However, as our supreme court has recently
explained, while a defendant’s convictions cannot be used to enhance his
sentence, . . . “the particular facts — the ongoing nature and length of [his]
criminal conduct — can properly be considered as aggravation.” Phipps v. State,
90 N.E.3d 1190, 1198 (Ind. 2018).
[29] Our review of the sentencing-hearing transcript reveals that the trial court did
not use Norris’ 2012 conviction as an aggravating factor. During sentencing,
the trial court stated:
And resisting law enforcement as a Class C misdemeanor or as a
Class C felony in 2011, which is the predicate. I do notice —
note that, you know, there was injury in that case to a state
trooper. But I do note and I will take into account, that his
incrimination [probation] was revoked and he was ordered to do
present time in that case. But the conviction, obviously, I will not
consider as an aggravator above the presumptive.
(Tr. 205-06) (emphasis added).
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 16 of 20
[30] It is clear that during sentencing, the trial court was referring to the particular
facts of the offense, that his probation was revoked, and that it did not rely upon
the conviction as an aggravator. The reference to the injury in the 2012 case
was made in relation to the finding that the instant case evidenced a desperation
to avoid capture that placed people at risk of injury. This is proper under
Indiana law. See Gleason, 965 N.E.2d at 711 (holding that while a material
element of a crime cannot be an aggravating circumstance, the nature and
circumstances of the crime can be an aggravator and that if the nature of the
offense is identified as an aggravating factor, the trial court must discuss facts
that go beyond the statutory requirements of the crime). Accordingly, we
conclude that the trial court did not abuse its discretion when sentencing
Norris.
B. Inappropriate Sentence
[31] Next, Norris contends that his sentence is inappropriate. This Court may revise
a sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). “The 7(B)
‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s
judgment, not unlike the trial court’s discretionary sentencing determination.”
Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,
though, we conduct that review with substantial deference and give due
consideration to the trial court’s decision—since the principal role of our review
is to attempt to leaven the outliers, and not to achieve a perceived correct
sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citations
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 17 of 20
omitted). “Appellate Rule 7(B) analysis is not to determine whether another
sentence is more appropriate but rather whether the sentence imposed is
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal
quotation marks and citation omitted), reh’g denied. The defendant has the
burden of persuading the appellate court that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[32] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer, 868 N.E.2d at 494). Here, Norris was convicted of one Level 4
felony and one Level 6 felony.7 The sentencing range for a Level 4 felony is
“for a fixed term of between two (2) and twelve (12) years, with the advisory
sentence being six (6) years.” I.C. § 35-50-2-5.5. The sentencing range for a
Level 6 felony is “for a fixed term of between six (6) months and two and one
half (2 ½) years, with the advisory sentence being one (1) year.” I.C. § 35-50-2-
7(b). For his Level 4 felony conviction, the trial court sentenced Norris to
twelve (12) years, with eight years ordered to be executed in the Department of
Correction, two years to be executed on Marion County Community
Corrections, and two years suspended to probation, and 636 days for his Level
6 felony conviction. Accordingly, Norris received the maximum sentence
7
Although he was also sentenced for his Class A misdemeanor resisting law enforcement conviction,
discussion of this is omitted due to our finding that it violated the continuous crime doctrine.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 18 of 20
possible for his Level 4 felony and above the advisory sentence for his Level 6
felony.
[33] We disagree with Norris’ contention that “the nature of the offense is not so
egregious that it merits a sentence six years above the advisory.” (Norris’ Br.
29). Our review of the nature of Norris’ offenses reveals that he possessed a
firearm as a serious violent felon, fled from the police in a vehicle at a high rate
of speed in a residential neighborhood and crashed, and then fled from the
police on foot. Taken together, these circumstances underscore the severity of
the nature of Norris’ crimes.
[34] When considering the character-of-the-offender prong of our inquiry, one
relevant consideration is the defendant’s criminal history. Rutherford v. State,
866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s
prior criminal history will vary “based on the gravity, nature and number of
prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d
261, 263 (Ind. 2008) (internal quotation marks and citation omitted).
[35] Indeed, the most glaring aspect of Norris’ character is his extensive criminal
history. He concedes that he has a lengthy criminal history but asks that we
recognize that his criminal history is “either directly related to substance abuse
or for crimes closely associated with drug addiction.” (Norris’ Br. 31). This
argument is unpersuasive. Norris’ criminal history dates backs twenty years.
Excluding the convictions from the instant case, his history includes five felony
convictions: (1) a 1998 Class D felony conviction for theft; (2) a 2004 Class C
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 19 of 20
felony conviction for possession of cocaine; (3) a 2012 Class C felony
conviction for resisting law enforcement; (4) a 2016 Level 6 felony conviction
for possession of methamphetamine; and (5) a 2016 Level 6 felony conviction
for residential entry. Norris also has four misdemeanor convictions: (1) a 1999
Class C misdemeanor conviction for illegal possession of an alcoholic beverage;
(2) a 2008 Class B misdemeanor conviction for possession of a device or
substance used to interfere with drug or alcohol screening; (3) a 2014 Class A
misdemeanor conviction for operating a vehicle while intoxicated; and (4) a
2015 Class A misdemeanor conviction for theft. Norris was also placed on
probation three times and had probation revoked all three times. He was also
terminated from drug treatment court in 2007 and violated the terms of a
community transition program leading to revocation in 2009. Norris’ current
offenses are part of a pattern of disregarding the criminal laws of Indiana,
which reflects negatively on his character. Accordingly, Norris has not
persuaded us that his sentence is inappropriate.
[36] Affirmed in part, reversed in part, and remanded with instructions.
Vaidik, C.J., and Barnes, Sr.J., concur.
Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018 Page 20 of 20