MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jan 31 2020, 6:18 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Zachary R. Griffin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert L. Moore, January 31, 2020 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2870 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff, Cleary, Judge Trial Court Cause No. 15D01-1605-F4-26
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 1 of 13 Case Summary and Issue [1] Following a bench trial, Robert Moore was convicted of dealing in a narcotic
drug, a Level 5 felony, and the trial court sentenced him to serve six years in the
Indiana Department of Correction (“DOC”). Moore appeals his sentence,
presenting the sole issue of whether his six-year sentence is inappropriate in
light of his character and the nature of the offense. Concluding Moore’s
sentence is not inappropriate, we affirm.
Facts and Procedural History [2] The underlying facts are as follows:
On May 13, 2016, Trevor Adkins (“Adkins”) was arrested on an outstanding warrant for possession of heroin in Dearborn County, Indiana. Adkins volunteered to contact drug dealers he had purchased from in the past to assist police officers who conduct controlled drug buys.
Later that same day, Adkins voluntarily contacted a heroin dealer who was later identified as Kevin Sanders (“Sanders”). The Greendale Police Department orchestrated the logistics of the controlled buy, and Adkins relayed that information to Sanders. Adkins and Sanders agreed to meet at Party at Trav’s Fireworks (“Trav’s”).
Officer Dustin Hatfield (“Officer Hatfield”) drove Adkins to Trav’s in his personal vehicle, a blue Ford F–150 (“Ford”). . . .
Upon arriving at Trav’s, the officer transporting Adkins requested that the meet-up location be changed due to officer
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 2 of 13 safety because it was dark, the lighting [at Trav’s] was poor[.] Adkins asked Sanders to meet him at Ameristop’s parking lot, which shared a parking lot with Trav’s but had better lighting. Sanders called A[d]kins on the way to Ameristop and informed Adkins that he was lost and needed to stop and get gas. Adkins agreed to meet Sanders at a Shell Gas Station which was approximately two-tenths of a mile from the Ameristop. Sanders told Adkins to look for a white Camaro.
Officer Hatfield observed only one white [Camaro] in the parking lot[,] and he parked his truck directly in front of the Camaro. He was able to see the driver and passenger in the Camaro, and Adkins identified the passenger as Sanders. Before Adkins exited the Ford, he and Officer Hatfield watched Sanders climb into the back seat of the Camaro. Adkins then approached the Camaro, entered the vehicle, and sat in the front passenger seat. Officer Hatfield had a clear view of Adkins and the driver, who was later identified as Moore. The officer saw Moore give Adkins an unidentifiable object and watched Adkins hand Moore the $200 buy money. As they had planned, Adkins signaled to Officer Hatfield when the transaction was complete. Thereafter, Adkins gave Officer Hatfield a clear plastic bag containing a white substance that was later identified as fentanyl.
Three officers approached the Camaro after Adkins purchased the fentanyl from Moore. As Officer Hatfield removed Moore from the driver’s seat, the money Adkins gave to Moore fell from his lap. Sanders and Moore were immediately arrested, and the officers searched the vehicle. During the vehicle search, the officers found a rock-like substance wrapped in brown paper in the backseat.
The two substances were submitted to a testing lab, and both were identified as fentanyl. . . . On May 16, 2016, the State charged Moore with Level 4 felony conspiracy to commit dealing in a narcotic weighing at least one gram, and Level 5 felony Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 3 of 13 dealing in a narcotic drug. The State also alleged that Moore is an habitual offender.
Moore v. State, No. 15A01-1711-CR-2767, 2018 WL 3192898, at *1-2 (Ind. Ct.
App. June 29, 2018) (quotations and record citations omitted).
[3] Following a bench trial, Moore was found guilty as charged. A pre-sentence
investigation report was prepared and filed with the trial court. On October 25,
2017, the trial court held a sentencing hearing. Moore’s girlfriend testified that
Moore was involved in a car accident in 2014. Days after the accident, Moore
suffered a massive heart attack and underwent heart surgery and has endured
numerous bypasses since. She testified that he has suffered from complications
and has ongoing vascular and cardiac issues requiring frequent medical care.
[4] In imposing a sentence, the trial court detailed the nature of Moore’s offense: it
was a buy for what the buyer believed to be heroin but was actually fentanyl, an
extremely dangerous drug; the evidence demonstrated this was “not a user
selling a little, to go use a little” but rather a “drug deal for profit”; and Moore’s
culpability was high and the act took “a significant amount of time[.]” [Prior
Case] Transcript of the Evidence, Volume 2 at 53.
[T]his wasn’t a moment where [Moore]’s intoxicated and something just happens . . . [I]f it was a regular business deal, I would have commended him for his patience, and courtesies, as they’re talking on the phone, he drove all over this county trying to find the location, he was very respectful, and if it was a regular business deal, it would have been commendable. But, the fact that he was delivering fentanyl, makes his culpability high, this was not a kneejerk decision, this was a plan. The severity of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 4 of 13 crime and potential damage to others is very high . . . . Heroin is a deadly drug in itself, but if a heroin user believes they got a gram of heroin, and it’s a full gram of fentanyl, that’s extremely dangerous and deadly in its self [sic].
Id. at 53-54. The trial court found Moore’s serious medical condition a
mitigating factor. In addition, the trial court considered Moore’s juvenile and
adult criminal history, as well as evidence demonstrating Moore’s extensive
knowledge of drugs and gang activity. The trial court sentenced Moore to serve
five years for his dealing in a narcotic drug conviction and ten years for his
conspiracy to commit dealing in a narcotic drug to be served concurrently. The
trial court enhanced Moore’s sentence by eighteen years based on his habitual
offender status. Ultimately, Moore was sentenced to serve an aggregate
sentence of twenty-eight years executed in the DOC. See [Prior Case]
Appellant’s Second Corrected Appendix, Volume 3 at 69-74.
[5] Moore appealed and challenged the sufficiency of the evidence for his
convictions of dealing in a narcotic drug and conspiracy to commit dealing in a
narcotic drug weighing at least one gram. On June 29, 2018, in an unpublished
Memorandum Decision, a panel of this court affirmed Moore’s Level 5 felony
dealing in a narcotic conviction but reversed his conviction for Level 4 felony
conspiracy to commit dealing in a narcotic drug, concluding that the State
failed to prove that the weight of the fentanyl was at least one gram. Moore,
2018 WL 3192898, at *3-4. Therefore, this court remanded the case to the trial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 5 of 13 court with instructions to enter judgment for conspiracy to commit dealing in a
narcotic drug as a Level 5 felony, and to impose a new sentence. 1 Id.
[6] On November 2, 2018, the trial court held a sentencing hearing during which
the trial court took judicial notice of the underlying bench trial, pre-sentence
investigation report, and all documents on file. See Transcript of [November 2,
2018] Sentencing Hearing, Volume II at 4-5.2 The trial court again found
Moore’s physical health a mitigating factor and reiterated the nature of the
offense: that the drug in this case was between .97 grams and 1.05 grams of
fentanyl; the potential of harm or death to the user was high because “if
Fentanyl had been in the same dosages as Heroin had been used, the outcome
for the user is obviously much different, if not death”; and Moore’s culpability
was high as he was willing to sell to an informant in the presence of an
undercover officer. Id. at 23.
[7] At the conclusion of the hearing, the trial court imposed a six-year sentence.
The trial court subsequently issued its Abstract of Judgment entering the
1 Indiana Code section 35-48-4-1(c) states that the offense is a Level 4 felony if the amount of drug involved is at least one gram but less than five grams. Therefore, given that the State failed to prove Moore had at least one gram, Moore could not be convicted of Level 4 felony dealing in a narcotic drug. However, regardless of the amount, Moore could be convicted dealing in a narcotic drug as a Level 5 felony. See Ind. Code 35-48-4- 1(a)(2). 2 The State also moved to dismiss Moore’s habitual offender enhancement at this hearing. Shortly after Moore was originally sentenced in October 2017, our supreme court issued its opinion in Calvin v. State, 87 N.E.3d 474, 479 (Ind. 2017), which held that, under the plain meaning of the habitual-offender statutes, all non-Indiana felonies count as Level 6 felonies. Therefore, based on Moore’s prior convictions, the State moved to dismiss Moore’s habitual offender status as it was no longer a valid enhancement and the trial court granted the motion. See Tr. of [November 2, 2018] Sentencing Hearing, Vol. II at 4.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 6 of 13 following judgment: a finding of guilty on Count I, dealing in a narcotic drug, a
Level 5 felony; finding of not guilty on Count II, conspiracy to commit dealing
in a narcotic drug, a Level 4 felony; and dismissal of Count III, habitual
offender status. See Corrected Appellant’s Appendix, Volume 3 at 169-170.
The trial court sentenced Moore to serve six years on Count I to be executed in
the DOC. See id.
[8] Moore appealed and the State filed a Motion to Remand with this court arguing
that the trial court failed to follow this court’s sentencing instructions as
directed in Moore. On March 25, 2019, this court granted the State’s motion in
part, dismissed Moore’s appeal without prejudice, and remanded the case to the
trial court with instructions to reconsider its sentencing order in light of this
court’s June 29, 2018 Memorandum Decision. Id. at 199.
[9] Following a sentencing hearing on April 30, 2019, during which no additional
evidence was presented, the trial court issued an Amended Judgment of
Conviction and Sentencing Order, in which Count II, conspiracy to commit
dealing in a narcotic drug as a Level 5 felony, was merged into Count I due to
double jeopardy concerns. See Appealed Order at 1.3 The trial court entered
judgment of conviction on Count I, dealing in a narcotic drug, a Level 5 felony,
and sentenced Moore to serve six years. Moore now appeals.
3 Count III remained dismissed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 7 of 13 Discussion and Decision I. Inappropriate Sentence A. Standard of Review [10] Article 7, sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences through Indiana Appellate Rule 7(B).
King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides,
“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.” Sentencing decisions rest within the discretion of the trial court and,
as such, should receive considerable deference. Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). “Such deference 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).
[11] The defendant bears the burden of demonstrating his sentence is inappropriate
under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and
we may look to any factors in the record for such a determination, Reis v. State,
88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether we regard a
sentence as [in]appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 8 of 13 others, and myriad other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224.
B. Nature of the Offense [12] Moore contends his six-year sentence is inappropriate in light of the nature of
his offense because the aggregate weight of the drugs was approximately one
gram, he was not in possession of a weapon, and no one was injured during the
commission of the crime. We are unpersuaded that these factors render
Moore’s sentence inappropriate.
[13] The advisory sentence is the starting point our legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
The sentencing range for a Level 5 felony is between one and six years, with an
advisory sentence of three years. Ind. Code § 35-50-2-6(b). Here, the trial court
sentenced Moore to six years, the maximum sentence, for his dealing in a
narcotic drug conviction.
[14] The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation in it. Washington v.
State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. When
evaluating a defendant’s sentence that deviates from the advisory sentence, we
consider whether there is anything more or less egregious about the offense as
committed by the defendant that distinguishes it from the typical offense
accounted for by our legislature when it set the advisory sentence. Moyer v.
State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 9 of 13 [15] As the trial court acknowledged, Moore’s crime was severe and the potential
damage and harm to others was very high. Moore sold what the buyer believed
to be heroin but was actually fentanyl, a much more powerful and dangerous
drug. As the trial court explained at the 2017 sentencing hearing, “Heroin is a
deadly drug in itself, but if a heroin user believes they got a gram of heroin, and
it’s a full gram of fentanyl, that’s extremely dangerous and deadly in its self
[sic].” [Prior Case] Tr., Vol. 2 at 53-54. Therefore, had the buyer in this case
actually been a user rather than an informant, who used the drugs believing it
was heroin, the consequence could have been fatal. Although Moore did not
employ a weapon or injure anyone during the transaction, the mere “absence of
physical harm is not an automatic mitigating circumstance such that it would
require a lesser sentence than would otherwise be imposed.” Neale v. State, 826
N.E.2d 635, 638 (Ind. 2005).
[16] The trial court also considered Moore’s high culpability in imposing the
maximum sentence. The evidence demonstrates that the transaction was a
carefully crafted plan requiring a great deal of patience, communication, and a
significant amount of time; it was not an impulsive and thoughtless act. The
nature of the offense is extremely serious given that Moore sold approximately
one gram of fentanyl. In sum, we conclude that the nature of the offense does
not warrant revision of Moore’s maximum sentence.
C. Character of Offender [17] Moore also argues his character renders his sentence inappropriate. Although
Moore acknowledges his criminal history, he argues that the “aggravating effect Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 10 of 13 of his criminal history is tenuous and substantially outweighed by [his]
significant medical conditions. [His] debilitating and potentially terminal
medical conditions work a substantial hardship on him during any period of
incarceration.” Appellant’s Amended Brief at 13. We disagree.
[18] The “character of the offender” portion of the Rule 7(B) standard permits a
broader consideration of the defendant’s character. Anderson v. State, 989
N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “A defendant’s life and
conduct are illustrative of his or her character.” Morris v. State, 114 N.E.3d 531,
539 (Ind. Ct. App. 2018), trans. denied. And the trial court’s recognition or non-
recognition of aggravators and mitigators serves as an initial guide in
determining whether the sentence imposed was inappropriate. Stephenson v.
State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016).
[19] When considering the character-of-the-offender prong of our inquiry, one
relevant consideration is the defendant’s criminal history. Rutherford v. State,
866 N.E.2d 867, 874 (Ind. Ct. App. 2007). “The significance of a criminal
history . . . varies based on the gravity, nature, and number of prior offenses in
relation to the current offense.” Id. And this court has held that “[e]ven a
minor criminal record reflects poorly on a defendant’s character.” Reis, 88
N.E.3d at 1105.
[20] Moore’s pre-sentence investigation report reveals that he has an extensive
criminal history which began in 1998 when Moore was nine years old.
Corrected Appellant’s App., Vol. 3 at 78. As a juvenile, Moore was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 11 of 13 adjudicated a delinquent for various crimes, including assault; two
adjudications for theft; two adjudications for violating a court order;
unauthorized use of a motor vehicle; possession of marijuana; receiving stolen
property in an amount greater than $5,000; fleeing a police officer; and
aggravated robbery. Moore’s adult criminal history is comprised of convictions
for robbery, robbery with specifics, felonious assault with specifics, having
weapons under disability, drug possession, and driving under suspension. See
id. at 78-81.4 There is no question that Moore’s criminal history reflects poorly
on his character.
[21] The trial court found Moore’s medical issues, which are well documented in the
record, a mitigating factor. Moore’s DOC medical records were admitted into
evidence at the November 2, 2018 sentencing hearing and testimony revealed
that Moore underwent a heart procedure while incarcerated. See generally
[Confidential] Volume of Exhibits, Volume 1-2. Although we are sympathetic
to Moore’s various medical issues, every incarceration involves hardship,
Moore’s medical condition pre-dates the instant offense, and there is no
evidence he is not receiving adequate medical care while incarcerated.
Furthermore, despite Moore’s poor health and frequent contact with our justice
system, he was not deterred from committing the instant and potentially lethal
offense. See Rutherford, 866 N.E.2d at 874 (“Despite . . . frequent contact with
the criminal justice system and the police power of the State, [the defendant]
4 These crimes were all prosecuted in Ohio.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 12 of 13 was not deterred from committing the present offense.”). We conclude
Moore’s sentence is not inappropriate in light of his character.
Conclusion [22] After due consideration of the sentence imposed by the trial court, the nature of
Moore’s offense, and his character, we conclude Moore’s six-year sentence is
not inappropriate. Accordingly, we affirm.
[23] Affirmed.
Bradford, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 13 of 13