Gary Strugeon-Morris, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 27, 2020
• Docket: 19A-CR-2824
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 27 2020, 9:11 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 Kay A. Beehler Curtis T. Hill, Jr. Attorney at Law Attorney General of Indiana Terre Haute, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gary Sturgeon-Morris, Jr., March 27, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2824 v. Appeal from the Greene Superior Court State of Indiana, The Honorable Appellee-Plaintiff Dena A. Martin, Judge Trial Court Cause No. 28D01-1904-F3-4

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 1 of 4 Case Summary [1] Gary Sturgeon-Morris, Jr., appeals his five-and-a-half-year sentence for Level 5

felony possession of methamphetamine, challenging the trial court’s finding of

aggravators and mitigators. We affirm.

Facts and Procedural History [2] On April 12, 2019, a Greene County sheriff’s deputy pulled Sturgeon-Morris

over. At the time, Sturgeon-Morris was on probation and had a suspended

license and an outstanding warrant. He was arrested, and an inventory search

of his car yielded methamphetamine, zip lock bags, digital scales, syringes, and

a rifle.

[3] The State charged Sturgeon-Morris with Level 3 felony dealing in

methamphetamine, Level 6 felony possession of a syringe, Level 6 felony

identity deception, and Class A misdemeanor driving while suspended. A few

months later, Sturgeon-Morris agreed to plead guilty to an added count—Level

5 felony possession of methamphetamine—in exchange for the dismissal of the

four original charges and Cause Number 28D01-1902-F6-49 (in which

Sturgeon-Morris was charged with Level 6 felony possession of

methamphetamine). Sentencing was left to the discretion of the trial court,

except that the court was required to recommend Sturgeon-Morris for

enrollment in a program called Recovery While Incarcerated (“RWI”).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 2 of 4 [4] In sentencing Sturgeon-Morris, the trial court identified three aggravating

circumstances: Sturgeon-Morris’s criminal history, which includes a felony

burglary conviction in 2010 and a felony fraud conviction in 2017; the fact that

Sturgeon-Morris was on probation at the time of this offense; and the fact that

Sturgeon-Morris has done poorly on probation in the past. In discussing

Sturgeon-Morris’s criminal history, the court included “things that have been

dismissed[.]” Tr. p. 23. The court found Sturgeon-Morris’s guilty plea and

acceptance of responsibility to be a mitigating circumstance. The court

imposed an above-advisory sentence of five-and-a-half years in the Department

of Correction but recommended Sturgeon-Morris for RWI and said it would

consider a sentence modification upon successful completion of that program.

[5] Sturgeon-Morris now appeals.

Discussion and Decision [6] Sturgeon-Morris first contends that the trial court erred by including in its

consideration of aggravating circumstances the existence of prior criminal

charges that were dismissed. But as the State notes, Indiana’s appellate courts

have repeatedly recognized that a record of arrests and criminal charges is

relevant to sentencing because its reveals that “subsequent antisocial behavior

on the part of the defendant has not been deterred even after having been

subject to the police authority of the State and made aware of its oversight of

the activities of its citizens.” Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991);

see also Pickens v. State, 767 N.E.2d 530, 534 (Ind. 2002); Monegan v. State, 756

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 3 of 4 N.E.2d 499, 503 (Ind. 2001); Zavala v. State, 138 N.E.3d 291, 301 (Ind. Ct. App.

2019), trans. denied. Sturgeon-Morris makes no effort to distinguish that

caselaw, and he does not cite any caselaw to the contrary. As such, we cannot

say that the trial court erred in this regard.

[7] Sturgeon-Morris also argues that the trial court should have found “his remorse,

and more importantly, [his] desire to change the trajectory of his life and

behavior” to be a mitigating factor. Appellant’s Br. p. 6. We first note that

Sturgeon-Morris did not ask the trial court to find this mitigator, so his

argument is waived. See Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Waiver notwithstanding, his

argument fails. The only evidence Sturgeon-Morris cites is his own testimony

that he knows he has a drug problem, that he wants to get help, and that he

wants to be able to support his children. We are confident that the trial court

had this testimony in mind when it found as a mitigator that Sturgeon-Morris

was accepting responsibility.

[8] Affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 4 of 4