Omar Sharif Mosley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 5, 2019
• Docket: 18A-CR-3088
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 05 2019, 5:58 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Omar Sharif Mosley, July 5, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3088 v. Appeal from the Parke Circuit Court State of Indiana, The Honorable Sam A. Swaim, Appellee-Plaintiff. Judge Trial Court Cause No. 61C01-1709-F6-201

Barnes, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 1 of 8 Statement of the Case [1] Omar Mosley appeals the sentence he received for his convictions of leaving the 1 scene of an accident with serious bodily injury, a Level 6 felony; false 2 3 informing, a Class B misdemeanor; reckless driving, a Class A misdemeanor;

and operating a motor vehicle without ever receiving a license, a Class C 4 misdemeanor. We affirm.

Issue [2] Mosley presents one issue for our review, which we restate as: whether his

sentence is inappropriate in light of the nature of his offenses and his character.

Facts and Procedural History [3] In September 2017, Mosley caused a serious multi-vehicle accident. The

collision occurred when, as Mosley was driving, he was distracted by an

incoming call on his cell phone, and the vehicle in front of him braked. Mosley

hit the back of that vehicle, and the collision propelled his vehicle into the lane

of oncoming traffic where he hit a motorcycle head-on. Fearful of being

arrested because he did not have a driver’s license, Mosley called his wife and

had her pick him up not far from the scene. Later, he returned to the scene with

1 Ind. Code § 9-26-1-1.1 (2017). 2 Ind. Code § 35-44.1-2-3 (2016). 3 Ind. Code § 9-21-8-52 (2016). 4 Ind. Code § 9-24-18-1 (2016).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 2 of 8 his wife, who told the police that she was driving at the time of the collision.

Mosley maintained that he was a passenger in the car. Upon further

questioning, Mosley’s wife recanted her story and indicated that Mosley had

been driving at the time of the collision. During an inventory search of the car

prior to towing, police found amphetamine in the console; Mosley did not have

a prescription for this substance.

[4] Based upon this incident, Mosley was charged with leaving the scene of an

accident with serious bodily injury, a Level 6 felony; possession of a controlled 5 substance, a Class A misdemeanor; false informing, a Class B misdemeanor;

reckless driving, a Class A misdemeanor; and operating a motor vehicle

without ever receiving a license, a Class C misdemeanor. Mosley and the State

entered a plea agreement whereby he would plead guilty to leaving the scene of

an accident with serious bodily injury, false informing, reckless driving, and

operating a motor vehicle without ever receiving a license, with all remaining

counts to be dismissed. The parties also agreed that sentencing would be left to

the discretion of the trial court. The trial court sentenced Mosley to an

aggregate sentence of 1,455 days. He now appeals that sentence.

5 Ind. Code § 35-48-4-7 (2014).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 3 of 8 Discussion and Decision [5] Mosley contends his sentence is inappropriate given the nature of his offenses

and his character. He asks this Court to impose a sentence of a mere 872 days,

which equates to the time he has already served.

[6] Although a trial court may have acted within its lawful discretion in imposing a

sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

independent appellate review and revision of sentences through Indiana

Appellate Rule 7(B), which provides that we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we determine

that the sentence is inappropriate in light of the nature of the offense and the

character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

2014). However, “we must and should exercise deference to a trial court’s

sentencing decision, both because Rule 7(B) requires us to give ‘due

consideration’ to that decision and because we understand and recognize the

unique perspective a trial court brings to its sentencing decisions.” Stewart v.

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

court’s judgment should prevail unless overcome by compelling evidence

portraying in a positive light the nature of the offense (such as accompanied by

restraint, regard, and lack of brutality) and the defendant’s character (such as

substantial virtuous traits or persistent examples of good character). Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, the question under Appellate

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

question is whether the sentence imposed is inappropriate. King v. State, 894

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 4 of 8 N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of

persuading the appellate court that his or her sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[7] To assess whether a sentence is inappropriate, we look first to the statutory

range established for the class of the offenses. Here, Mosley was convicted of

Level 6 felony leaving the scene of an accident with serious bodily injury, for

which the advisory sentence is one year, with a minimum sentence of six

months and a maximum of two and one-half years. Ind. Code § 35-50-2-7(b)

(2016). In addition, Mosley was convicted of Class B misdemeanor false

informing, for which the maximum sentence is 180 days, and Class A

misdemeanor reckless driving, for which the maximum is one year. Ind. Code

§§ 35-50-3-3 (1977), -2 (1977). Finally, Mosley was convicted of Class C

misdemeanor operating a motor vehicle without ever receiving a license, for

which the maximum is sixty days. Ind. Code § 35-50-3-4 (1978). Mosley was

sentenced to consecutive terms of two and one-half years for the Level 6

offense, 180 days on the Class B misdemeanor, and one year on the Class A

misdemeanor, all of which was concurrent with the sixty days for the Class C

misdemeanor. Thus, his aggregate sentence of 1,455 days, or essentially four

years, is just shy of the maximum possible sentence.

[8] Next, we look to the nature of the offenses and the character of the offender.

As to the nature of the current offenses, we note that Mosley was driving

although he knew he had never been licensed to do so. More significantly, his

actions caused severe injury to the two motorcycle victims. One of the victims

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 5 of 8 had to undergo the amputation of one of his legs. The other motorcycle victim

suffered a compound fracture of her femur bone in addition to numerous other

broken bones, including all of her ribs, every bone in her left foot, her tibia,

fibula, knee, collar, and shoulder. As of the date of sentencing, she had

endured a great deal of pain, multiple surgeries, and rehabilitation, with more

yet to come. Indeed, the court found the victims’ amputation and significant,

life-long disabilities established the aggravating circumstance of harm, injury, or

loss suffered by a victim is significant and greater than the elements necessary to

prove the offense.

[9] With regard to the character of the offender, we observe that upon recovering

from being dazed by the deployment of his car’s air bags, Mosley heard the

motorcycle victims screaming and heard others telling them it would be okay

and that an ambulance was on its way. Rather than assisting in whatever

manner he could, Mosley absconded from the scene, only to return later with

his wife to lie to the police about his true involvement in the collision.

[10] Mosley’s poor character is also revealed in his criminal history, which the trial

court found to be an aggravating factor. Even a limited criminal history can be

considered an aggravating factor, Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct.

App. 2009), trans. denied, and Mosley’s history is abundant. As a juvenile,

Mosley was charged with auto theft and waived to adult court. He pleaded

guilty and was sentenced to three years with two years suspended to probation.

However, two probation violations were filed, and his probation was eventually

closed as unsatisfactory. As an adult, Mosley has been charged with two felony

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 6 of 8 counts of auto theft. He pleaded guilty to one count as a C felony and received

three years with one suspended; thereafter, a probation violation was filed.

Additionally, he was charged with seven counts of B felony armed robbery and

alleged to be an habitual offender. He pleaded guilty to all seven counts and

admitted to the habitual allegation. He was sentenced to twenty-five years in

the DOC, where he acquired multiple official misconduct reports.

Furthermore, he was on parole at the time of this offense. That fact is a

“substantial consideration” in our assessment of his character. See Rich v. State,

890 N.E.2d 44, 54 (Ind. Ct. App. 2008) (determining that defendant’s

commission of offenses while on probation is significant factor of character in

sentencing), trans. denied.

[11] Our review also involves consideration of the fact that Mosley was convicted of

only one count of leaving the scene of an accident involving serious bodily

injury, yet there were two motorcycle victims who were both severely and

permanently injured. When a defendant commits the same offense against two

victims, enhanced and consecutive sentences seem necessary to substantiate the

fact that there were separate harms and separate acts against more than one

person. Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003).

[12] Mosley points out that he pleaded guilty and that he is remorseful, but these

circumstances do not outweigh the substantial aggravators. Mosley has not met

his burden of presenting compelling evidence portraying in a positive light the

nature of his offenses and his character in order to overcome the trial court’s

sentencing decision.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 7 of 8 Conclusion [13] For the reasons stated, we are unable to conclude that Mosley’s four-year

sentence is inappropriate.

[14] Affirmed.

Baker, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019 Page 8 of 8