Michael Moore v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 09 2017, 9:47 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Moore, May 9, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1610-CR-2371
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
49G06-1509-F4-32722
49G06-1509-F4-34263
49G06-1510-F4-37673
Bradford, Judge.
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Case Summary
[1] In this consolidated appeal, Appellant-Defendant Michael Moore challenges
the sentence imposed by the trial court after Moore pled guilty to three counts
of Level 4 felony burglary and to being a habitual offender. In challenging his
sentence, Moore contends that the trial court abused its discretion by failing to
find his guilty plea to be a significant mitigating factor. Finding no abuse of
discretion by the trial court, we affirm.
Facts and Procedural History
[2] This consolidated appeal follows from Moore’s guilty plea to one count of
Level 4 felony burglary under Cause Number 49G06-1510-F4-37673 (“Cause
No. F4-37673”), one count of Level 4 felony burglary under Cause Number
49G06-1509-F4-34263 (“Cause No. F4-34263”), and one count of Level 4
felony burglary and to being a habitual offender under Cause Number 49G06-
1509-F4-32722 (“Cause No. F4-32722”).
A. Facts Relating to Cause No. F4-37673
[3] In August of 2015, Timothy Shackelford lived in a home on Honen Drive
North in Marion County. On August 11, 2015, law enforcement was
dispatched to the 7500 block of Honen Drive North on a report of a burglary in
progress. “A neighbor had stated that he had heard several loud noises coming
from his neighbor’s house, and when [he] went to look to see what was going
on, he saw a black SUV parked in his neighbor’s driveway and saw a black
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African American male fleeing from the residence.” Tr. p. 34. Upon arriving
at the residence, law enforcement “immediately saw the front door had been
kicked in” and “noticed a laptop and a flat screen on the floor.” Tr. p. 34.
When Shackelford arrived on the scene, he “said nothing was missing;
however, the t.v. that was on the floor had previously been hanging on the wall
prior to the burglary.” Tr. p. 34. Law enforcement recovered a finger print
from the television. Law enforcement later determined that the print belonged
to Moore. Shackelford indicated that he did not know Moore and had not
given him permission to be in his home. On October 23, 2015, Appellee-
Plaintiff the State of Indiana (“the State”) charged Moore with one count of
Level 4 felony burglary.
B. Facts Relating to Cause No. F4-34263
[4] In August of 2015, Carolyn Hampton lived in a home on Crooked Meadows
Drive in Marion County. On August 27, 2015, officers with the Indianapolis
Metro Police Department were dispatched to a burglary in progress at a
residence located on Crooked Meadows Drive. “A neighbor in the area had
called 911 due to seeing an unknown vehicle at a neighbor’s house … and four
African American males were loading items from the neighbor’s house into the
vehicle.” Tr. p. 32.
[5] Upon arriving at the scene of the burglary, law enforcement officers “came into
contact with” Hampton. Tr. p. 32. Hampton indicated that “her house had
been completely ransacked and the front door [had been] kicked in.” Tr. pp.
32-33. Hampton also indicated that several items were missing, including
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“jewelry, a flat screen t.v., a laptop, and a Roku antennae.” Tr. p. 33. Law
enforcement recovered a finger print “from a black lid off a jewelry box” which
Hampton informed law enforcement “had been moved during the burglary.”
Tr. p. 33. Law enforcement later determined that the print belonged to Moore.
Hampton indicated that she did not know Moore and had not given him
permission to be in her home.
[6] Law enforcement later questioned Moore about the print recovered from
Hampton’s home. Moore “could not explain why his fingerprints were located
inside the residence.” Tr. p. 33. On September 28, 2015, the State charged
Moore with one count of Level 4 felony burglary.
C. Facts Relating to Cause No. F4-32722
[7] In September of 2015, Karen Crawford lived in a home on Hickory Lake Drive
in Marion County. On September 10, 2015, Moore, along with Deandre
Lander and Carlissa Travis, broke and entered Crawford’s residence with the
intent to commit theft therein. On that date, Moore instructed Lander to drive
to Crawford’s residence to burglarize the home. Once the trio arrived at the
residence, Moore kicked in the door and entered the residence, looking for
items of value, specifically electronics. Moore ransacked the residence leaving
“exterior doors left open and couch cushions and mattresses being moved
around.” Tr. p. 29. Travis served as the lookout and “ran to the car once the
neighbors saw her standing outside the home.” Tr. p. 29. Travis alerted Moore
that “someone had seen her” after which Moore “ran to the car and told
Lander to drive.” Tr. p. 30. A short time later, the vehicle in which the three
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were traveling was stopped by law enforcement. “The eye witness who had
called 911 came to the scene where Moore and the others were stopped” and
positively identified Moore “as the one he saw inside” Crawford’s residence.
Tr. p. 30. Crawford later told law enforcement that she did not know Moore
and had not given him permission “to be in her home or ransack her home.”
Tr. p. 30.
[8] Moore subsequently admitted to participating in the burglary. On September
14, 2015, the State charged Moore with one count of Level 4 burglary. The
State subsequently amended the charging information to include the allegation
that Moore was a habitual offender. Specifically, the State alleged that Moore
had previously been convicted of Class D felony criminal gang activity and
Level 5 felony carrying a handgun with a prior felony conviction within the last
fifteen years.
D. Moore’s Guilty Plea and Sentencing
[9] On July 28, 2016, Moore pled guilty under Cause Nos. F4-32722, F4-34263,
and F4-37673 to three counts of Level 4 felony burglary and to being a habitual
offender. The trial court accepted Moore’s guilty pleas. The trial court
conducted a sentencing hearing on September 22, 2016. During this hearing
the trial court heard evidence that Moore suffers from schizophrenia. The trial
court ultimately sentenced Moore to an aggregate term of thirty-two years, with
three years executed in the Department of Correction, three years executed in
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community corrections, and the remaining time suspended to probation.1 The
trial court indicated that as a condition of probation, Moore was to take any
prescribed medications relating to his schizophrenia. 2
Discussion and Decision
[10] On appeal, Moore contends that the trial court abused its discretion in
sentencing him. Sentencing decisions rest within the sound discretion of the
trial court and are reviewed on appeal only for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on
reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if 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. (quotation omitted).
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence-including a finding of aggravating and
mitigating factors if any-but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
1
Given Moore’s status as a habitual offender, the six years executed represents the minimum required
executed sentence.
2
In crafting Moore’s sentence, the trial court noted the significant amount of testimony indicating (1) that
when taking his medication, Moore is a pleasant, law-abiding citizen and (2) that Moore’s criminal behavior
coincides with periods during which Moore failed to take his medication.
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those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the
trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Id. at 490-91.
[11] In challenging his sentence, Moore claims that the trial court abused its
discretion by failing to find his guilty plea to be a significant mitigating factor.
The finding of mitigating factors is discretionary with the trial court. Fugate v.
State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 535 N.E.2d
1152, 1155 (Ind. 1989)). The trial court is not required to find the presence of
mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155). Further, the trial
court is not required to weigh or credit the mitigating evidence the way
appellant suggests it should be credited or weighed. Id. (citing Hammons v.
State, 493 N.E.2d 1250, 1255 (Ind. 1986)). Likewise, if the trial court does not
find the existence of a mitigating factor after it has been argued by counsel, the
trial court is not obligated to explain why it has found that the factor does not
exist. Id. (citing Hammons, 493 N.E.2d at 1254-55).
[12] Moore claims that the trial court abused its discretion by failing to find the fact
that he pled guilty to be a mitigating factor at sentencing. “[A]lthough we have
long held that a defendant who pleads guilty deserves ‘some’ mitigating weight
to be given to the plea in return, a guilty plea may not be significantly
mitigating when the defendant receives a substantial benefit in return or when
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the defendant does not show acceptance of responsibility.” McElroy v. State, 865
N.E.2d 584, 591 (Ind. 2007) (citations omitted).
[13] In the instant matter, the record indicates that while Moore said that he took
responsibility for his actions, he also placed blame for his actions on his co-
defendants and his drug use. Specifically, Moore admitted to using drugs
before at least one of the burglaries at issue in this case and stated that his drug
use “makes [him] do bad things.” Appellant’s App. Vol. II, Confidential, pp.
138-39. In addition, when asked why he committed the burglaries, Moore said
“I don’t know. My co-defendants forced me to do it.” Appellant’s App. Vol.
II, Confidential, pp. 139. Moore also indicated that he had suffered “just like”
his victims had suffered and asserted that the “picture that y’all painted of me”
by discussing the burglaries “is really false right now.” Tr. p. 87.
[14] The trial court gave a lengthy sentencing statement during which it stated the
following:
and again when I hear you saying that things like the co-
defendants made me do it, the drugs made me do it, and all of
that stuff, again makes me concerned whether or not you
understand that, no, you made those choices. You choose your
co-defendants. You choose your drugs. You choose to break
into people’s homes. Until you, again, accept the responsibility
for it, you’re just going to be back here.
Tr. p. 102. The trial court’s statement indicates that while the trial court might
not have specifically referenced the fact that Moore pled guilty, the trial court
clearly considered whether Moore took responsibility for his actions.
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[15] The trial court’s sentencing statement makes it clear that the trial court
considered the sincerity of Moore’s alleged remorse, noting that while Moore
claimed to accept responsibility for his actions, he was, at least in part, blaming
his conduct on other individuals and his drug use. We have previously
concluded that the trial court “is in the best position to judge the sincerity of a
defendant’s remorseful statements.” Stout v. State, 834 N.E.2d 707, 711 (Ind.
Ct. App. 2005) (providing that while the defendant did indicate that he was
very sorry for what he did, the trial court was in the best position to judge the
sincerity of defendant’s remorseful statements). We will not disturb the trial
court’s apparent determination that Moore’s acceptance of responsibility was
not sincere.
[16] Furthermore, we have previously held that a guilty plea does not amount to a
significant mitigating factor “where the evidence against [the defendant] is such
that the decision to plead guilty is merely a pragmatic one.” Wells v. State, 836
N.E.2d 475, 479 (Ind. Ct. App. 2005) (citing Sensback v. State, 720 N.E.2d 1160,
1165 (Ind. 1999)), trans. denied. The facts in this case demonstrate that finger
prints connected Moore to two of the three burglaries and Moore admitted to
participating in the third. As such, we conclude that the facts are such that
would suggest that Moore’s decision to plead guilty was merely a pragmatic
one.
[17] In sum, we conclude that Moore has failed to demonstrate that his guilty plea
warranted significant mitigating weight. Accordingly, we also conclude that
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the trial court did not abuse its discretion by failing to find Moore’s guilty plea
to be a significant mitigating factor.
[18] The judgment of the trial court is affirmed.
Brown, J., and Pyle, J., concur.
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