Joseph R. Mosley v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 23, 2014
• Docket: 87A01-1312-CR-530
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be Jul 23 2014, 10:31 am 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.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

CHARLES L. MARTIN GREGORY F. ZOELLER C. RICHARD MARTIN Attorney General of Indiana Martin & Martin, P.C. Boonville, Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JOSEPH R. MOSLEY, ) ) Appellant-Defendant, ) ) vs. ) No.87A01-1312-CR-530 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE WARRICK CIRCUIT COURT The Honorable David O. Kelley, Judge Cause No. 87C01-1307-FD-261

July 23, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge Joseph R. Mosley pleaded guilty to twenty-three counts of class D felony Theft.1

The trial court sentenced Mosley to a total aggregate term of six years executed followed

by six years of probation. On appeal, Mosley challenges the sentence imposed in two

respects:

1. Did the trial court abuse its discretion in determining the sentence imposed?

2. Is Mosley’s sentence inappropriate?

We affirm.

On or about February 15, 2013, Mosley was hired as a maintenance technician for

Hamilton Pointe Health and Rehabilitation Center in Newburgh, Indiana. Mosley

worked at Hamilton Pointe until he was laid off on June 18, 2013. In his capacity as a

maintenance technician, Mosley had access to residents’ rooms, apartments, and cottages.

At various times throughout his employment at Hamilton Pointe, Mosley took items –

mostly gold jewelry, precious stones, and sterling silver utensils – from residents of the

facility. An investigation of a reported theft in June 2013 led to Mosley’s home, where

Mosley was found to be in possession of property belonging to one of the residents of

Hamilton Pointe and several testing kits used to determine the quality of silver and gold

metal and diamond stones. The investigation further revealed that Mosley would dispose

of the items by selling them to pawn shops, gold recyclers, or jewelry stores. Over the

course of the four months Mosley was employed at Hamilton Pointe, Mosley made at

1 Ind. Code Ann. § 35-43-4-2 (West, Westlaw current through 2012 Second Regular Session).

2 least fifty-seven sales to pawn shops, pocketing nearly $42,000 in cash.2 In total, there

were more than twenty reported thefts from residents of Hamilton Pointe with victims’

losses totaling over $200,000.

On July 12, 2013, the State charged Mosley with twenty-four counts of theft, all as

class D felonies. On September 11, 2013, Mosley and the State executed a sentencing

agreement that provided that Mosley would plead guilty to Counts 1 through 23 and the

State would dismiss Count 24. With regard to sentencing, the agreement provided:

The State of Indiana agrees to the following recommendation to the Court for sentencing: [Mosley] shall be sentenced in the discretion of the Court with both parties free to present evidence and argument. The State of Indiana will agree that any sentence imposed on Counts 1 through 12 can be executed concurrently with Counts 13-23. [Mosley] shall be ordered to pay restitution.

Appellant’s Appendix at 58. A guilty plea hearing was held on September 16, 2013, at

the conclusion of which the court found a factual basis existed and therefore accepted

Mosley’s guilty plea to Counts 1 through 23. The court also ordered a pre-sentence

investigation report and set a sentencing hearing for November 7, 2013.

In its sentencing statement at the sentencing hearing, the trial court identified

Mosley’s lack of criminal history as the sole mitigating factor. The court also identified

six aggravating factors: (1) the harm, injury, loss, or damage suffered by the victims was

significant and greater than the elements necessary to prove the commission of the

offense; (2) the victims were at least sixty-five years old; (3) based upon the nature of the

case, most of the victims had infirmities by age or medical condition such that they chose

2 Not all pawn shops report their sales to the police.

3 to live at Hamilton Pointe; (4) Mosley was in a position of care, custody, or control of the

victims of the offenses; (5) Mosley had a definite plan to commit larcenous conduct; and

(6) Mosley’s conduct occurred over a period of time and involved multiple victims.

Based on the foregoing, the trial court sentenced Mosley to one year on each of

Counts 1 through 12 with the sentences to be served consecutively. The trial court

ordered the sentences on Counts 1 through 6 to be executed at the Department of

Correction and the sentences on Counts 7 through 12 to be suspended to probation, for a

total aggregate sentence of six years executed followed by six years of probation. The

court also sentenced Mosley to one year on each of Counts 13 through 23, but, in

accordance with the sentencing agreement, ordered those sentences served concurrent

with the sentences imposed on Counts 1 through 12. As a condition of probation, Mosley

was ordered to pay restitution.

1.

Mosley argues that the trial court abused its discretion in sentencing him to twelve

consecutive one-year sentences on each of Counts 1 through 12. Sentencing decisions

rest within the sound discretion of the trial court and are reviewed on appeal for an abuse

of that discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g 875

N.E.2d 218. 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, probable, and

actual deductions to be drawn therefrom.” Id. at 490. Circumstances under which a trial

court may be found to have abused its discretion include: (1) failing to enter a

sentencing statement, (2) entering a sentencing statement that includes reasons not

4 supported by the record, (3) entering a sentencing statement that omits reasons clearly

supported by the record and advanced for consideration, or (4) entering

a sentencing statement that includes reasons that are improper as a matter of law.

Anglemyer v. State, 868 N.E.2d 482.

A trial court may impose any sentence authorized by statute and permissible under

the Indiana Constitution “regardless of the presence or absence of aggravating

circumstances.” Ind. Code Ann. § 35-38-1-7.1(d) (West, Westlaw current through 2012

Second Regular Session). If a trial court “finds” the existence of aggravating and/or

mitigating circumstances, then the trial court is required to give “a statement of the

court’s reasons for selecting the sentence it imposes.” I.C. § 35-38-1-3 (West, Westlaw

current through 2012 Second Regular Session).

Mosley first argues that the trial court overlooked several mitigating factors that

were clearly supported by the record. The determination of mitigating circumstances is

within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App.

2007), trans. denied. The trial court is not obligated to accept the defendant’s argument

as to what constitutes a mitigating factor, and a trial court is not required to give the same

weight to proffered mitigating factors as does a defendant. Id. A trial court does not err

in failing to find a mitigating factor where that claim is highly disputable in nature,

weight, or significance. Id. An allegation that a trial court abused its discretion by

failing to identify or find a mitigating factor requires the defendant on appeal to establish

that the mitigating evidence is significant and clearly supported by the record. Id.

5 We begin by noting that the only mitigating factors Mosley advanced for

consideration were that he led a relatively law-abiding life and that an overall risk

assessment put him in a low risk category to re-offend.3 Both mitigating factors are

implicit in the trial court’s recognition of Mosley’s lack of criminal history as a

mitigating circumstance.

On appeal, Mosley maintains that the trial court failed to consider five additional

mitigating factors that he claims are clearly supported by the record: (1) that the crime

did not cause or threaten serious harm to persons or property; (2) that the crime was the

result of circumstances unlikely to recur; (3) that he is likely to respond affirmatively to

probation or short-term imprisonment; (4) his character and his expression of remorse;

and (5) that he is willing to make restitution to the victims. Mosley, however, did not

proffer any of these mitigating factors to the trial court for consideration. Mosley has

therefore waived his claim that the trial court abused its discretion in failing to consider

these mitigating factors. See Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App. 2004)

(holding that failure to proffer a mitigating circumstance at the sentencing hearing results

in waiver of issue for appellate review), trans. denied.

Waiver notwithstanding, the trial court did not abuse its discretion in not

considering the mitigating factors Mosley claims were improperly overlooked. First,

with regard to Mosley’s claim that the crime did not involve serious injury to persons or

property, such mitigating factor should be considered in light of the crime being

3 With regard to his low risk assessment, Mosley advanced such in terms of arguing for placement in a community corrections program.

6 considered. Indeed, had the crimes in the instant case involved serious injury to persons

or property, the crimes would not have been simply theft. In light of the crimes being

considered (i.e., theft), we note that Mosley stole over $200,000 in heirloom-type items

from residents of an assisted living facility. Aside from the monetary loss, many of the

items Mosley stole carried sentimental value that can never be recouped. In terms of

theft, the loss sustained was substantial. We cannot say that the trial court abused its

discretion in not finding this to be a mitigating factor.

With regard to his claim that this crime is the result of circumstances unlikely to

recur, Mosley has failed to establish such mitigating circumstance. Without a crystal ball

capable of seeing into the future, we must consider the record before us. Here, the record

reflects that Mosley began pilfering items from the residents of the assisted living facility

almost immediately after he was hired and that he continued his pattern of conduct for

nearly four months, when he was caught. Mosley had in his possession tools for

detecting the quality of precious metals and diamonds, further indicating his decision to

steal was a calculated, well-thought-out plan, rather than a one-time mistake. There is

simply nothing in the record that convinces us that Mosley would not commit the same

crimes again if allowed to work in a similar capacity.

Mosley also claims he is likely to respond affirmatively to probation or short-term

imprisonment. This is precisely what he received. To be sure, the trial court sentenced

7 Mosley to one year, which is less than the advisory for a class D felony, 4 on each of

twelve counts of theft. Although the trial court ordered the sentences to be served

consecutively, the trial court suspended six years of the twelve-year sentence to

probation. In light of the number of offenses, the sentence imposed is consistent with a

finding that Mosley would respond well to short-term imprisonment and probation. The

trial court did not abuse its discretion in this manner.

With regard to his remorse, Mosley’s overriding concern at the sentencing hearing

was receiving the most lenient sentence so he could “get his life back in order.”

Transcript at 20. Moreover, an expression of remorse is best gauged by the trial court

and the credibility of the defendant is a matter solely for the trial court’s determination.

See Gibson v. State, 856 N.E.2d 142 (Ind. Ct. App. 2006). Here, although Mosley

apologized to the victims, the trial court apparently found it less than convincing as the

trial court noted that Mosley likely would have continued stealing from the residents of

the assisted living center had he not been caught. With regard to restitution, we note that

Mosley has a significant amount to repay his victims, and further note that Mosley

overlooks the fact that he cannot repay the individuals for the sentimental value inherent

in the items he stole. Mosley has not established that the trial court abused its discretion

in declining to consider these mitigating factors.

4 Ind. Code Ann. § 35-50-2-7 (West, Westlaw current through 2012 Second Regular Session) (“A person who commits a Class D felony shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being one and one-half (1 ½ ) years”).

8 Mosley next argues that the trial court abused its discretion by finding aggravating

circumstances that are improper or unsupported by the record. Specifically, Mosley

argues that the trial court improperly considered (1) that the amount of loss for each theft

was in excess of $1000, (2) that the victims were disabled and/or infirm, and (3) that

Mosley was in a position of trust with the victims.

Mosley acknowledges that a trial court may consider as an aggravating

circumstance that the harm, injury, loss, or damage suffered by the victim was both

significant and greater than the elements necessary to prove the commission of the

offense. See I.C. § 35-38-1-7.1(a). Mosley argues, however, that the loss sustained by

the victims in this case does not rise to the level of a “significant” loss so as to justify

consideration as an aggravating circumstance.

Here, the smallest individual loss incurred was $800 and the largest was over

$31,000, with the collective total being over $200,000. As the trial court noted, “a $1.00

theft could get you a conviction for theft as a D Felony.” Sentencing Transcript at 24.

Although there was no individual loss that would have elevated the crime of theft to a

class C felony,5 it remains that the collective loss was not insignificant. Indeed, we agree

with the trial court that the collective loss was “excessive.” Id. We cannot say that the

trial court abused its discretion in considering that the loss suffered by the victims was

significant and greater than the elements necessary to prove the commission of the

offense.

5 Ind. Code Ann. § 35-43-4-2 (West, Westlaw current through 2012 Second Regular Session) provides that the crime of theft is “a Class C felony if . . . the fair market value of the property is at least one hundred thousand dollars ($100,000)”).

9 Mosley next argues that there is no evidence to support the trial court’s finding

that the victims were disabled or infirm. In this respect, the trial court noted that “from

the nature of this case that most of the victims in this case had some infirmities that—

whether by age or medical condition they chose to live at Hamilton Pointe, which was a

facility that addressed what their infirmities might be.” Id. In recognizing the age of the

victims and that, either by their age or some type of infirmity they chose to live in an

assisted living facility, the trial court was commenting on the nature and circumstances of

the crime. Our Supreme Court has held that the nature and circumstances of a crime is a

valid aggravating factor. See McCann v. State, 749 N.E.2d 1116 (Ind. 2001). The trial

court did not abuse its discretion in considering this aggravating factor.

Finally, Mosley argues that the trial court improperly found that he abused a

position of trust as an aggravating factor. In explaining this aggravating factor, the trial

court noted that this was not a typical scenario. The trial court noted that Mosley was a

maintenance man at an assisted living facility and that the residents trusted him. The

court noted that Mosley “was [in] a position of care, custody and control of these people

to the extent that he had unlimited access to their rooms.” Sentencing Transcript at 25.

Again, the trial court was articulating the nature and circumstances of the crime and

found these facts to be aggravating. We cannot say the trial court abused its discretion in

this regard.

Having determined that the trial court did not overlook any significant mitigating

factors and that the trial court did not improperly consider certain aggravating factors, we

10 conclude that Mosley has failed to establish that the trial court abused its discretion in

sentencing him.

2.

Mosley argues that his sentence is inappropriate. Article 7, section 4 of the

Indiana Constitution grants our Supreme Court the power to review and revise

criminal sentences. Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this

court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008).

Per Indiana Appellate Rule 7(B), we may revise a sentence “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.” Wilkes v. State, 917 N.E.2d 675,

693 (Ind. 2009). “[S]entencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

at 1223. Mosley bears the burden on appeal of persuading us that

his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).

The determination of whether we regard a sentence as appropriate “turns on our

sense of the culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Cardwell v.

State, 895 N.E.2d at 1224. Moreover, “[t]he principal role of appellate review should be

to attempt to leaven the outliers, and identify some guiding principles for trial courts and

those charged with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Id. at 1225. Accordingly, “the question under Appellate

Rule 7(B) is not whether another sentence is more appropriate; rather, the question is

11 whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind.

Ct. App. 2008) (emphasis in original).

We begin by noting that the advisory sentence is the starting point the Legislature

has selected as an appropriate sentence for the crime committed. Anglemyer v. State, 868

N.E.2d 482. The advisory sentence for a class D felony is one and one-half years. See

I.C. § 35-50-2-7. Here, the trial court sentenced Mosley to one year on each of class-D-

felony theft offense, which is less than the advisory sentence. The trial court then

ordered the sentences on Counts 1 through 12 to be served consecutively, but then

suspended six years of the twelve-year sentence to probation.6

We now turn to Mosley’s character. We note that Mosley pretended to be of

service to the residents of the assisted living center in order to gain access to their homes

so he could take their treasured belongings. He used his position to gain the residents’

trust and continued with his deceptive practices for nearly four months. Mosley took

items with significant financial value and irreplaceable sentimental value. In total, there

were twenty-four reported thefts with losses totaling more than $200,000. Moreover,

Mosley made dozens of sales to pawn shops and pocketed over $40,000 in cash. This

was not a one-time occurrence, but a scheme Mosley concocted that began almost

immediately after he was hired at the facility. It says a lot about Mosley’s character that

even after time for reflection, he went back time and again and took items that did not

belong to him for his own personal gain.

6 As noted above, the sentences imposed on Counts 13 through 23 are to be served concurrently with the sentences imposed on Counts 1 through 12 as per the sentencing agreement.

12 With regard to the nature of the offense, we observe that Mosley stole over

$200,000 in heirloom jewelry, silver, and gold pieces from individuals over the age of

sixty-five who were living in an assisted living facility. Mosley made dozens of

transactions at local pawn shops and pocketed over $40,000 in cash. All of this occurred

in the short span of four months.

In light of the nature of the offense and the character of the offender, we cannot

say that the sentence imposed is inappropriate.

Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.