MEMORANDUM DECISION Jun 03 2015, 6:27 am Pursuant to Ind. Appellate Rule 65(D), this 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 Randy M. Fisher Gregory Zoeller Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma, & Terrill George P. Sherman Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Fred R. Morris, Jr., June 3, 2015
Appellant-Defendant, Court of Appeals Case No. 02A04-1410-CR-506 v. Appeal from the Allen Superior Court The Honorable Frances C. Gull, State of Indiana, Judge Appellee-Plaintiff, Cause No. 02D05-1402-FC-41
Bradford, Judge.
Case Summary [1] Appellant-Defendant Fred Morris, Jr., was convicted of Class C felony carrying
a handgun without a license and Class D felony dealing in a synthetic drug or
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 1 of 7 synthetic drug lookalike substance. Morris was sentenced to an aggregate term
of six years of incarceration. Morris appeals his sentence, arguing that the trial
court abused its discretion for failing to consider mitigating factors or
alternatives to incarceration. Morris also argues that his sentence is
inappropriate in light of the nature of his offenses and his character. We
disagree and affirm the Morris’s sentence.
Facts and Procedural History [2] On the night of February 3, 2014, Fort Wayne Police Officer Cameron Norris
performed a traffic stop on a 2002 Ford Explorer for failing to have its taillights
illuminated. Adonis Robinson was driving the vehicle and Morris was riding in
the front passenger seat. Both Robinson and Morris quickly exited the vehicle
and Robinson told Officer Norris that he did not have a valid driver’s license
and that there was no insurance on the vehicle. Upon looking in the vehicle,
Officer Norris noticed a large clear plastic bag containing a light colored leafy
substance on the front passenger floor board. The bag was later found to
contain 81.84 grams of synthetic marijuana substance.
[3] After placing Robinson and Morris in handcuffs, Officer Norris searched the
vehicle and found a loaded handgun underneath the front passenger seat. After
checking its serial number, officers learned that the gun had been reported
stolen by its owner in 2008. Officer Norris also found a box of plastic sandwich
bags in the glove compartment.
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 2 of 7 [4] Appellee-Plaintiff the State of Indiana (“the State”) charged Morris with Class
C felony carrying a handgun without a license1 and Class D felony dealing in a
synthetic drug or synthetic drug lookalike substance. On September 16, 2014, a
jury found Morris guilty as charged. Morris was subsequently sentenced to six
years for carrying a handgun without a license and two years for dealing in a
synthetic drug to be served concurrently.
Discussion and Decision [5] On appeal, Morris claims that (1) the trial court abused its discretion during
sentencing for failing to recognize mitigating factors or considering alternatives
to incarceration, and (2) that his sentence is inappropriate in light of the nature
of the offenses and his character.
Abuse of Discretion [6] “[S]entencing 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) decision clarified 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,
1 The charge of carrying a handgun without a license was elevated to a Class C felony based on Morris’s prior felony conviction for possession of cocaine or narcotic drug. (App. 13)
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 3 of 7 probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006)).
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. Id. at 490-91.
[7] Morris claims that the trial court abused its discretion for failing to identify as
mitigating factors Morris’s employment history and that his incarceration
would cause undue hardship on Morris’s dependent children. “An allegation
that the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record.” Id. at 493 (citing Carter v. State, 711 N.E.2d 835, 838
(Ind. 1999)). However, the trial court is not required to explain why it has
declined to recognize a particular factor as mitigating. Id. We do not think that
either proffered mitigating circumstance is significant or supported by the
record.
[8] First, the vast majority of able-bodied adults are employed and, as such, simply
maintaining employment is not a significant mitigating circumstance. This
court has previously addressed Morris’s argument and found that, “[m]any
people are gainfully employed such that this would not require the trial court to
note it as a mitigating factor or afford it the same weight as [Defendant]
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 4 of 7 proposes.” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003). As
such, it was not an abuse of discretion for the trial court to decline to accept
Morris’s work history as a mitigating factor.
[9] Second, the record does not clearly support Morris’s claim that extended
incarceration would cause undue hardship on his dependent children. “‘Many
persons convicted of serious crimes have one or more children and, absent
special circumstances, trial courts are not required to find that imprisonment
will result in an undue hardship.’” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind.
1999). Morris argues that “the record was clear that Mr. Morris had two (2)
minor children and a third child on the way. In fact, Mr. Morris was ordered to
pay weekly child support in the amounts of Eighty Dollars ($80.00) and One
Hundred Fifteen Dollars ($115) respectively.” Appellant’s Br. p. 11. However,
both of Morris’s children live with their mothers, neither of whom testified at
trial that Morris’s incarceration would create any hardship on the children.
Even assuming Morris was in fact paying on his child support obligations––of
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MEMORANDUM DECISION Jun 03 2015, 6:27 am Pursuant to Ind. Appellate Rule 65(D), this 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 Randy M. Fisher Gregory Zoeller Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma, & Terrill George P. Sherman Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Fred R. Morris, Jr., June 3, 2015
Appellant-Defendant, Court of Appeals Case No. 02A04-1410-CR-506 v. Appeal from the Allen Superior Court The Honorable Frances C. Gull, State of Indiana, Judge Appellee-Plaintiff, Cause No. 02D05-1402-FC-41
Bradford, Judge.
Case Summary [1] Appellant-Defendant Fred Morris, Jr., was convicted of Class C felony carrying
a handgun without a license and Class D felony dealing in a synthetic drug or
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 1 of 7 synthetic drug lookalike substance. Morris was sentenced to an aggregate term
of six years of incarceration. Morris appeals his sentence, arguing that the trial
court abused its discretion for failing to consider mitigating factors or
alternatives to incarceration. Morris also argues that his sentence is
inappropriate in light of the nature of his offenses and his character. We
disagree and affirm the Morris’s sentence.
Facts and Procedural History [2] On the night of February 3, 2014, Fort Wayne Police Officer Cameron Norris
performed a traffic stop on a 2002 Ford Explorer for failing to have its taillights
illuminated. Adonis Robinson was driving the vehicle and Morris was riding in
the front passenger seat. Both Robinson and Morris quickly exited the vehicle
and Robinson told Officer Norris that he did not have a valid driver’s license
and that there was no insurance on the vehicle. Upon looking in the vehicle,
Officer Norris noticed a large clear plastic bag containing a light colored leafy
substance on the front passenger floor board. The bag was later found to
contain 81.84 grams of synthetic marijuana substance.
[3] After placing Robinson and Morris in handcuffs, Officer Norris searched the
vehicle and found a loaded handgun underneath the front passenger seat. After
checking its serial number, officers learned that the gun had been reported
stolen by its owner in 2008. Officer Norris also found a box of plastic sandwich
bags in the glove compartment.
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 2 of 7 [4] Appellee-Plaintiff the State of Indiana (“the State”) charged Morris with Class
C felony carrying a handgun without a license1 and Class D felony dealing in a
synthetic drug or synthetic drug lookalike substance. On September 16, 2014, a
jury found Morris guilty as charged. Morris was subsequently sentenced to six
years for carrying a handgun without a license and two years for dealing in a
synthetic drug to be served concurrently.
Discussion and Decision [5] On appeal, Morris claims that (1) the trial court abused its discretion during
sentencing for failing to recognize mitigating factors or considering alternatives
to incarceration, and (2) that his sentence is inappropriate in light of the nature
of the offenses and his character.
Abuse of Discretion [6] “[S]entencing 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) decision clarified 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,
1 The charge of carrying a handgun without a license was elevated to a Class C felony based on Morris’s prior felony conviction for possession of cocaine or narcotic drug. (App. 13)
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 3 of 7 probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006)).
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. Id. at 490-91.
[7] Morris claims that the trial court abused its discretion for failing to identify as
mitigating factors Morris’s employment history and that his incarceration
would cause undue hardship on Morris’s dependent children. “An allegation
that the trial court failed to identify or find a mitigating factor requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record.” Id. at 493 (citing Carter v. State, 711 N.E.2d 835, 838
(Ind. 1999)). However, the trial court is not required to explain why it has
declined to recognize a particular factor as mitigating. Id. We do not think that
either proffered mitigating circumstance is significant or supported by the
record.
[8] First, the vast majority of able-bodied adults are employed and, as such, simply
maintaining employment is not a significant mitigating circumstance. This
court has previously addressed Morris’s argument and found that, “[m]any
people are gainfully employed such that this would not require the trial court to
note it as a mitigating factor or afford it the same weight as [Defendant]
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 4 of 7 proposes.” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003). As
such, it was not an abuse of discretion for the trial court to decline to accept
Morris’s work history as a mitigating factor.
[9] Second, the record does not clearly support Morris’s claim that extended
incarceration would cause undue hardship on his dependent children. “‘Many
persons convicted of serious crimes have one or more children and, absent
special circumstances, trial courts are not required to find that imprisonment
will result in an undue hardship.’” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind.
1999). Morris argues that “the record was clear that Mr. Morris had two (2)
minor children and a third child on the way. In fact, Mr. Morris was ordered to
pay weekly child support in the amounts of Eighty Dollars ($80.00) and One
Hundred Fifteen Dollars ($115) respectively.” Appellant’s Br. p. 11. However,
both of Morris’s children live with their mothers, neither of whom testified at
trial that Morris’s incarceration would create any hardship on the children.
Even assuming Morris was in fact paying on his child support obligations––of
which there is no evidence on the record––we find that Morris has failed to
establish that the proffered mitigating circumstance is significant and clearly
supported by the record.
[10] Morris also briefly argues that the trial court abused its discretion by failing to
consider alternatives to incarceration. “[C]onsideration and imposition of
alternatives to incarceration is a ‘matter of grace’ left to the discretion of the
trial court.” Wolf v. State, 793 N.E.2d 328, 330 (Ind. Ct. App. 2003) (citing
Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995)). Morris has
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 5 of 7 been granted the benefit of alternatives to incarceration in the past and has
failed to show that he will respond positively to those alternatives. In 2006,
Morris was convicted of Class D felony possession of cocaine and in 2008,
Morris was convicted of possession of marijuana. In both cases, the trial court
suspended Morris’s entire sentence. Despite this leniency, Morris continued to
engage in criminal activity and was subsequently convicted of four
misdemeanor offenses––conversion and driving while suspended in 2011, and
false informing and driving while suspended in 2012––before ultimately
committing the instant offenses. Finally, we note that Morris was not eligible
for a completely suspended sentence due to his prior felony conviction.
Pursuant to Indiana Code section 35-50-2-2(b)(2), the minimum sentence
Morris could receive was a two year executed term.2 In light of these facts, we
do not think the trial court abused its discretion for declining to suspend a
portion of Morris’s sentence.
Appropriateness of Sentence [11] Appellate Rule 7(B) provides that the “Court may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” “Sentence review under Appellate Rule 7(B) is very
2 Indiana Code section 35-50-2-2(b)(2) provided that the trail court was only allowed to suspend that part of the sentence in excess of the minimum sentence due to the fact that Morris had an unrelated felony conviction within seven years of his commission of the instant crime.
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 6 of 7 deferential to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
Morris carries the burden of proving that his sentence is inappropriate. Id.
[12] With regards to the nature of the offenses, Morris was in possession of a
substantial amount of synthetic marijuana––nearly a quarter pound––as well as
a box of plastic sandwich bags and a loaded handgun. In short, we may
reasonably infer that Morris was an armed drug dealer practicing his trade.
[13] Morris’s character is evidenced by his criminal history, which includes four
misdemeanors and a felony conviction in the eight years preceding his
commission of the instant offenses. Additionally, in 2004, when Morris was a
juvenile, he was placed on a program of informal adjustment after being
charged with disorderly conduct.
[14] As we stated above, Morris was not eligible to have the entirety of his sentence
suspended. The permissible range of his sentence was two to eleven years.
Morris’s six-year sentence is approximately in the middle of this range and
certainly far from the maximum sentence. Based on the nature of Morris’s
offenses and on his criminal history, we cannot say that Morris’s six-year
sentence is inappropriate.
[15] The judgment of the trial court is affirmed.
Vaidik, C.J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015 Page 7 of 7