Carl Louis Moore, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 27, 2015
• Docket: 16A01-1408-CR-353
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 27 2015, 9:18 am Memorandum Decision shall not be regarded as precedent or cited before any 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 Steven P. Teverbaugh Gregory F. Zoeller Greensburg, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carl Louis Moore, Jr. February 27, 2015

Appellant-Defendant, Court of Appeals Case No. 16A01-1408-CR-353 v. Appeal from the Decatur Circuit Court

State of Indiana, The Honorable Timothy B. Day, Judge Appellee-Plaintiff Cause No. 16C01-1304-FC-228

Mathias, Judge.

[1] Carl Louis Moore, Jr. (“Moore”) pleaded guilty in Decatur Circuit Court to

Class C felony robbery and Class C felony attempted robbery. After a

sentencing hearing, the trial court sentenced Moore to two consecutive six-year

sentences and ordered his aggregate twelve-year sentence to be served

Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015 Page 1 of 6 consecutive to Moore’s sentences for other crimes committed in other counties.

On appeal, Moore claims that the trial court abused its discretion in sentencing

him to an aggregate twelve-year sentence.

[2] We affirm.

Facts and Procedural History

[3] On March 13, 2013, Moore entered the New Point Food Mart in Greensburg,

Indiana and demanded money from the clerk, Chintankumar Patel (“Patel”).

Moore made Patel believe that he was armed with a knife. Patel gave Moore a

bag containing $2,140, and Moore fled from the store.

[4] On April 5, 2013, while Patel was working at the store, Moore again entered

the store and demanded money from Patel. Because he had already placed the

money in the store’s safe, Patel ran away from the counter. Moore tried to open

the register, but he was unable to do so. He then fled the scene. When the

police investigated, Moore was identified as a suspect of the crime. He later

admitted to committing the two crimes. Patel suffered significant psychological

trauma from these events.

[5] As a result, the State charged Moore with Class C felony robbery and Class C

felony attempted robbery. On June 17, 2014, Moore pleaded guilty to both

charges, but sentencing was left “open” to the discretion of the trial court. On

July 29, 2014, the trial court heard evidence regarding sentencing. The trial

court sentenced Moore to a consecutive six-year term for each count, and

ordered the sentences in this case to be served consecutive to his criminal Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015 Page 2 of 6 sentences imposed for other crimes committed in other counties. Moore now

appeals.

Discussion and Decision

[6] In his appellate brief, Moore makes an array of arguments that he should serve

his sentences concurrently. Among these arguments, we find four coherent

issues. Each issue will be addressed individually.

Abuse of Discretion

[7] Even though Moore does not explicitly challenge his sentencing as an abuse of

discretion, his argument is, in essence, a claim that the trial court abused its

discretion its consideration of the aggravating and mitigating circumstances.

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). The trial court abuses its discretion if its 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 abuses its discretion by: (1) failing to enter a

sentencing statement, (2) finding aggravating or mitigating factors unsupported

by the record, (3) omitting mitigating factors clearly supported by the record

and advanced for consideration, or (4) giving reasons that are improper as a

matter of law. Id. at 490–91.

[8] In his brief, Moore argues that the trial court failed to consider the following

mitigating factors: his drug addiction, his age, and his childhood in an

Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015 Page 3 of 6 uncontrolled environment. Although he testified concerning these facts at the

sentencing hearing, the only mitigating factor specifically raised as such by

Moore was that he pleaded guilty. Moore specifically raised no other factors as

mitigators at the sentencing hearing. “The trial court does not abuse its

discretion in failing to consider a mitigating factor that was not raised at

sentencing.” Id. at 492. The trial court clearly considered the only mitigator

Moore specifically raised at the sentencing hearing, his guilty plea.

[9] Even had Moore properly raised other factors, the trial court was not obligated

to find them mitigating. “[T]he trial court is not obligated to explain why it has

found that the factor does not exist.” Id. at 493. Nevertheless, the trial court

explicitly rejected Moore’s drug addiction as a mitigating factor. Tr. p. 24.

Additionally, the relative weight given to a factor is not available for appellate

review. Anglemyer, 868 N.E.2d at 493–94.

Improper Aggravator

[10] Moore also argues that the trial court improperly found the traumatization of

the clerk by Moore to be an aggravating factor. Moore argues that such trauma

is improper because it is an element of the offense. See Gomilia v. State, 13

N.E.3d 846, 852 (Ind. 2014).

[11] Generally, a trial court may not impose a sentence greater than the advisory

sentence for reasons that are included in the material elements of the offense.

Id. at 852–53. However, the reason is proper if unique circumstances exist that

would justify deviating from the advisory sentence. Id.

Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015 Page 4 of 6 [12] The trial court characterized Patel’s trauma as the “nature of the crime,” and

the court discussed at length the unique troubles and difficulties that Patel faced

and continues to face because of Moore’s actions. Tr. pp. 23-24. We conclude

that this was a unique circumstance and that the trial court properly considered

Patel’s trauma as an aggravating circumstance.

Appropriateness of Sentence

[13] Pursuant to Appellate Rule 7(b), we may revise a sentence otherwise 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.” Although Moore cites to this language in his brief,

he does not raise any specific argument regarding the nature of the offense and

the character of the offender. It is Moore’s burden to persuade us that his

sentence is inappropriate in the context of the nature of the offense and

character of the offender standard of review. See Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). Moore failed to compare his offense and his character

to this standard, and we therefore consider this claim waived. See Perry v. State,

921 N.E.2d 525, 528 (Ind. Ct. App. 2010).

Constitutionality of Sentence

[14] Finally, Moore argues that, at sentencing, the trial court violated Article I,

section 18 of the Indiana Constitution, which states that the penal code is

founded on “principles of reformation, and not of vindictive justice.” Ind.

Const. art. I, § 18. Moore refers to the trial court’s statement that Moore is

Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015 Page 5 of 6 “going to pay for [his crimes]” and that “there is a punitive aspect” to the

sentence. Tr. p. 24. On these two facts alone, Moore alleges a constitutional

violation.

[15] However, the trial court also stated, “I hope it rehabilitates you. I hope you get

your GED while you’re there.” Tr. p. 24. The trial court’s imposition of an

aggregate twelve-year sentence was given with the stated purpose of assisting

Moore with his rehabilitation. We conclude that the trial court’s decision is

consistent with the purposes set forth in the Indiana Constitution.

[16] The trial court did not abuse its discretion in sentencing Moore.

[17] Affirmed.

Najam, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015 Page 6 of 6