Christopher J. Moberg v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2016
• Docket: 79A05-1510-CR-1716
• Status: Published

Opinion

FILED MEMORANDUM DECISION Jun 30 2016, 7:26 am

CLERK Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court Court of Appeals this Memorandum Decision shall not be and Tax Court

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 Knecht Gregory F. Zoeller Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher J. Moberg, June 30, 2016 Appellant-Defendant, Court of Appeals Case No. 79A05-1510-CR-1716 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1507-F5-37

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1716 | June 30, 2016 Page 1 of 5 Case Summary [1] Christopher J. Moberg (“Moberg”) pled guilty to one count of Operating a

Motor Vehicle after Forfeiture of License for Life, a Level 5 Felony.1 The court

imposed a sentence of three years to be served with the Department of

Correction (“DOC”). Moberg takes exception to his placement within the

DOC. Finding his placement not inappropriate, we affirm.

Facts and Procedural History [2] On July 2, 2015, Moberg was pulled over by law enforcement for driving a

motorcycle with an expired license plate. (Tr. at 17) During the course of that

investigation, the law enforcement officer discovered that Moberg’s driver’s

license had been suspended for life. (Tr. at 17) Accordingly, Moberg was

arrested and later charged with Operating a Motor Vehicle after Forfeiture of

License for Life.

[3] On September 3, 2015, Moberg entered a guilty plea without the benefit of a

plea agreement. On September 25, 2015, the trial court held a sentencing

hearing on this matter. Moberg requested a four-year sentence, two years with

community corrections, and two years suspended. (Tr. at 33) The State

requested a sentence of three years executed at the DOC. (Tr. at 37) The trial

court found as aggravating factors Moberg’s extensive criminal history,

1 Ind. Code § 9-30-10-17(a).

Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1716 | June 30, 2016 Page 2 of 5 particularly his offenses outside the realm of traffic violations; his history of

failing to comply with probation, parole, and community corrections; his recent

failure to report to community corrections; and the fact that the current offense

was committed while Moberg was on probation for another offense. (Tr. at 38-

43) As mitigating factors, the trial court noted Moberg’s status as a trustee at

the Tippecanoe County Jail; his participation in various programs at the jail,

particularly those aimed at assisting those suffering from substance abuse; his

good work history; his guilty plea in the absence of a plea agreement; and his

statement of remorse during sentencing proceedings. (Tr. at 43-45) Finding the

aggravating and mitigating factors in balance, the trial court sentenced Moberg

to three years to be served with the DOC. (Tr. at 45-46) Moberg now

challenges his placement within the DOC.

Discussion and Decision [4] Moberg asserts on appeal that his sentence to the DOC was inappropriate under

Indiana Appellate Rule 7(B), and thereby requests that we revise his three-year

sentence to be served in community corrections. According to Appellate Rule

7(B), we may revise a sentence “if, after due consideration of the trial court’s

decision,” we find the sentence “inappropriate in light of the nature of the

offense and the character of the offender.” Review of the location where a

sentence is to be served is an appropriate application of our authority under

Appellate Rule 7(B). Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007); King v.

State, 894 N.E. 2d 265, 267 (Ind. Ct. App. 2008). However, such review is very

Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1716 | June 30, 2016 Page 3 of 5 deferential to the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012),

reh’g denied. A defendant challenging the placement of a sentence must

convince us that the placement is itself inappropriate, not whether another

placement is more appropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct.

App. 2007).

[5] Moberg asserts on appeal that his placement in the DOC is inappropriate in

light of the nature of his offense and his good character, and he relies on the

following factors in support. Moberg was initially pulled over for driving with

an expired license plate, not because of erratic or dangerous driving behavior.

He caused no harm to any people or property, nor did he intend to do so.

Furthermore, in spite of his extensive criminal history, Moberg asserts he has

demonstrated good character in his employment, during his recent

incarceration, and by virtue of pleading guilty without the benefit of a plea

agreement. Because of these mitigating factors, Moberg claims placement in

community corrections is more appropriate; however, as we have stated, such a

showing is not what is required.

[6] Although these factors have significance, they do not demonstrate why

Moberg’s placement in the DOC is inappropriate. The only argument

advanced by Moberg on the inappropriateness of the location of the sentence is

his commitment to paying support for his daughters. However, a review of the

record shows that Moberg has no current legal obligation to pay child support.

The mother of his daughters agreed to abate child support, and Moberg owes

Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1716 | June 30, 2016 Page 4 of 5 no support arrearage. Thus, the trial court’s order does not prevent Moberg

from fulfilling a legal duty to pay child support.

[7] Additionally, Moberg’s juvenile and adult criminal history is extensive, and it is

not limited to traffic-related offenses. Moberg’s criminal history includes

convictions for drug-related offenses, resisting law enforcement, and theft,

among others. He has been sentenced previously to alternative placements

without success. Moberg has had his probation revoked three times throughout

his life. Furthermore, he was on probation at the time of this offense. The

State has subsequently filed a petition to revoke his probation in that matter.

Also, on May 14, 2015, less than two full months before the current offense, he

was sentenced to three years to be served under community corrections and

failed to report. In light of this history of offenses and unsuccessful alternative

placements, the trial court’s order that Moberg serve his sentence in the DOC is

not inappropriate.

[8] Affirmed.

Bradford, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1716 | June 30, 2016 Page 5 of 5