Garrett M. Morrow v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 31 2020, 8:49 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nicole A. Zelin Curtis T. Hill, Jr.
Pritzke & Davis, LLP Attorney General of Indiana
Greenfield, Indiana Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Garrett Marcus Morrow, August 31, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-476
v. Appeal from the Hancock Superior
Court
State of Indiana, The Honorable Dan E. Marshall,
Appellee-Plaintiff. Judge
Trial Court Cause No.
30D02-1909-F6-1878
Brown, Judge.
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[1] Garrett Marcus Morrow appeals his sentence for battery as a level 6 felony. He
contends that he was denied a fair opportunity to controvert the presentence
investigation report (“PSI”) and asserts his sentence is inappropriate. We
affirm.
Facts and Procedural History
[2] On or about September 17, 2019, Morrow was an inmate at the Hancock
County Jail and became disturbed by the sounds of the other inmates in his cell
playing cards. Morrow knowingly or intentionally touched Thomas Joseph
Fager in a rude, insolent, or angry manner by punching him resulting in
moderate bodily injury including swelling and redness to his right eye.
[3] On September 30, 2019, the State charged Morrow with battery as a level 6
felony. On December 2, 2019, the court held a hearing, and Morrow indicated
he did not want counsel and pled guilty. The court informed Morrow: “You
know you have the right to what we call a Presentence Investigation Report
where Probation will come in, meet with you and – uh – make a
recommendation on the sentence.” Transcript Volume II at 9. The court
stated: “Because this is a Level 6 Felony you can waive that right or you can
have Probation go ahead and conduct that – that report. What would you like
to do?” Id. Morrow answered: “Have them come talk to me.” Id. The court
ordered a PSI and scheduled a sentencing hearing.
[4] On December 26, 2019, the Hancock County Probation Department filed a PSI
which recommended a sentence of two years in the Hancock County Jail. An
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entry in the chronological case summary dated December 27, 2019, states:
“Automated Paper Notice Issued to Parties Pre-Sentence Investigation Report
Filed – 12/26/2019: Garret Marcus Morrow[.]” Appellant’s Appendix Volume
II at 5.
[5] On January 2, 2020, the court held a sentencing hearing, and Morrow indicated
he was prepared to proceed. The following exchange then occurred:
THE COURT: Mr. Morrow, did you receive a copy of the
Presentence Investigation prepared by Probation?
MR. MORROW: Yes, Sir.
THE COURT: Did you read that document?
MR. MORROW: Yes, Sir.
THE COURT: Are you aware of any corrections that need to be
made to it?
MR. MORROW: No, Sir.
*****
THE COURT: Then I’ll show the Presentence Investigation
approved as submitted. . . .
*****
THE COURT: State’s recommendation?
[Prosecutor]: Your Honor, the State would follow the
recommendation as laid out . . . in the Presentence Investigation
by Miss Dobbs.
THE COURT: Sir, do you – uh – anything you’d like to say
about the recommendation in this matter?
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MR. MORROW: No, Sir.
THE COURT: So, you don’t disagree with the State’s
recommendation?
MR. MORROW: I didn’t even read what they recommend on
there.
THE COURT: You do agree with it?
MR. MORROW: Yes.
Transcript Volume II at 13-15 (emphasis appears in original).
[6] The court sentenced Morrow to 730 days in the Hancock County Jail. The
court stated:
Sir, the recommendation of Probation including the possibility of
a modification if you did certain things. I’m not including that in
my Sentencing Order but that doesn’t mean you’re precluded
from . . . filing a petition for modification. This is open
sentencing, so I have the right to modify this sentence at any
time. So, if you do wonderfully and do the things Probation has
recommended in . . . this Presentence for the possibility of a
modification, if you do those things and you file a motion, I’ll
give you a hearing to determine whether your sentence should be
modified.
Id. at 15. The court asked Morrow if he understood, and he answered
affirmatively.
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Discussion
I.
[7] Morrow first argues that he was denied a fair opportunity to controvert the PSI
and asserts he was provided with a copy of the PSI only five minutes prior to
the hearing in violation of Ind. Code § 35-38-1-12(b). 1 The State contends that
Morrow’s argument is not supported by the record or case law.
[8] Ind. Code § 35-38-1-12(b) provides in part: “The court shall furnish the factual
contents of the presentence investigation or a copy of the presentence report
sufficiently in advance of sentencing so that the defendant will be afforded a fair
opportunity to controvert the material included.” As a general matter, “it
would be better if trial courts routinely made sure the pre-sentence report was
available more than one day before the sentencing hearing . . . .” Lang v. State,
461 N.E.2d 1110, 1114 (Ind. 1984). However, “[t]here is no specific deadline
for the filing of a pre-sentence investigation report except that the factual
contents or a copy of the report must be furnished ‘sufficiently in advance of
sentencing so that the defendant will be afforded a fair opportunity to
controvert the material included.’” Goudy v. State, 689 N.E.2d 686, 698-699
(Ind. 1997) (quoting Ind. Code § 35-38-1-12(b)), reh’g denied. “[I]t is incumbent
1
Morrow cites to a document signed by him and titled “AFFIDAVIT OF GARRETT MORROW” in which
he asserted that his case was called for a hearing within five minutes of him receiving the twenty-two page
PSI. Appellant’s Appendix Volume II at 56.
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upon [the] defendant to show how he was prejudiced by a short time period
within which to review a pre-sentence report.” Id. at 699.
[9] The record reveals that Morrow stated at the sentencing hearing that he was
ready to proceed. While at one point Morrow stated, “I didn’t even read what
they recommend on there,” Transcript Volume II at 14, when specifically asked
by the trial court if he read the PSI, he answered affirmatively. Further, when
asked if he was aware of any corrections that needed to be made to the PSI, he
answered in the negative. Morrow did not request a continuance or additional
time to read the recommendation. On appeal, Morrow asserts that he was not
afforded a fair opportunity to review the PSI so that he could refute the
probation officer’s recommendation, but does not point to any incorrect or
inaccurate statements in the PSI or develop a cogent argument as to how he
was harmed. Under these circumstances, we cannot say reversal is warranted.
See Goudy, 689 N.E.2d at 699 (observing that the defendant made no claim that
the PSI contained factual errors or inaccuracies requiring additional time to try
to rebut and finding no error in the trial court’s denial of his request to continue
the sentencing hearing); Eubank v. State, 456 N.E.2d 1012, 1017 (Ind. 1983)
(observing that the defendant received the report in advance of the sentencing
hearing, stated that he had no evidence to present, failed to enumerate specific
findings which he planned to controvert if given additional time, and failed to
show how he was harmed, and holding that the trial court’s denial of his
motion to continue the sentencing hearing did not warrant reversal).
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II.
[10] The next issue is whether Morrow’s sentence is inappropriate in light of the
nature of the offense and his character. Morrow argues the facts are not
egregious and his criminal history was not so significant “as to affect his
character to the extent that he should have been sentenced” to two years.
Appellant’s Brief at 9. He requests that we revise his sentence to the advisory.
[11] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[12] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall
be imprisoned for a fixed term of between six months and two and one-half
years, with the advisory sentence being one year.
[13] Our review of the nature of the offense reveals that Morrow, who was born on
December 28, 1995, was an inmate at the Hancock County Jail, became
disturbed by the sounds of the other inmates in his cell playing cards, and
knowingly or intentionally touched Fager in a rude, insolent, or angry manner
by punching him resulting in moderate bodily injury including swelling and
redness to his right eye.
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[14] Our review of the character of the offender reveals that Morrow pled guilty. As
a juvenile, Morrow had adjudications for strangulation and two counts of child
molesting. As an adult, he has convictions for fraud and possession of
marijuana, hash oil, hashish, or a synthetic drug in 2015; resisting law
enforcement as a class A misdemeanor and unlawful possession or use of a
precursor as a level 6 felony in 2018; and two counts of resisting law
enforcement and two counts of domestic battery as class A misdemeanors in
2019. The PSI indicates that Morrow reported having been on supervised
probation five times which he admitted to never successfully completing. He
also admitted to being placed into community corrections and failing to
successfully complete it. The PSI states that Morrow received extensive
therapeutic interventions as a juvenile and never complied with supervision by
probation or community corrections.
[15] The PSI states Morrow had significant childhood trauma and was raised in a
home that was chaotic and marked by violence and drug use. It further
provides that he received extensive services through the Department of Mental
Health as well as through Hancock Probation Department and that his
compliance was “minimal at best.” Appellant’s Appendix Volume II at 30.
Morrow admitted to first using marijuana around age fourteen and described
his use as being at least one time each month. The PSI notes that Morrow
denied the use of cocaine, meth, heroin, LSD, hallucinogenic mushrooms, bath
salts, ecstasy, or any other known substances, and that prior police reports
indicated he admitted to being under the influence of meth in the past and that,
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during one arrest, he required hospital care that included sedation due to his use
of illegal substances. The PSI further provides that Morrow’s overall risk
assessment score using the Indiana Risk Assessment System places him in the
very high risk to reoffend category.
[16] After due consideration, we conclude that Morrow has not sustained his burden
of establishing that his sentence is inappropriate in light of the nature of the
offense and his character.
[17] For the foregoing reasons, we affirm Morrow’s sentence.
[18] Affirmed.
Robb, J., and Crone, J., concur.
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