MEMORANDUM DECISION FILED Apr 13 2016, 5:35 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court
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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Moore, April 13, 2016 Appellant-Defendant, Court of Appeals Case No. 16A05-1509-CR-1530 v. Appeal from the Decatur Superior Court State of Indiana, The Honorable Matthew D. Appellee-Plaintiff. Bailey, Judge Trial Court Cause No. 16D01-1502-F4-108
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 1 of 6 [1] Following a guilty plea, Thomas Moore was convicted of two counts of Level 5
felony Fraud on a Financial Institution, one count of Level 5 felony Criminal
Conversion, two counts of Level 6 felony Theft, one count of Level 6 felony
Possession of Methamphetamine, and one count of class B misdemeanor
Possession of Marijuana. He also admitted to being a habitual offender.
Moore received an aggregate sentence of twelve years, with one year suspended
to probation. On appeal, Moore argues that his sentence is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On February 24, 2015, Moore was captured on surveillance video entering the
home of his ninety-one-year-old grandfather, Paul Ricke. Upon entering the
home, Moore stole several checks from his grandfather’s checkbook. He then
entered the bedroom where his grandfather was sleeping and stole cash from his
wallet. Moore then stole Ricke’s van and drove to Ricke’s bank, where he
cashed a forged check for $500. Moore was arrested the next day when he
attempted to cash another forged check for nearly $2000. When Moore was
arrested, police found marijuana and methamphetamine in the stolen van.
[4] The State charged Moore with multiple offenses, and he ultimately agreed to
plead guilty to the charges set forth above. In exchange for Moore’s guilty plea,
the State agreed to dismiss an additional Level 4 felony burglary charge.
Pursuant to the plea agreement, all sentences were to be served concurrently
and Moore was to receive an aggregate sentence between ten and twelve years,
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 2 of 6 with the decision to suspend any portion of the sentence left to the trial court’s
discretion. In accordance with the plea agreement, the trial court sentenced
Moore to six years for each of his Level 5 felony convictions. The court
enhanced one of those convictions by six years, with one year suspended to
probation, based on the habitual offender adjudication. Also in accordance
with the plea agreement, the trial court sentenced Moore to twenty-six months
for each of his Level 6 felony convictions and one hundred eighty days for his
class B misdemeanor conviction, and ordered that all sentences were to run
concurrently. Thus, Moore received an aggregate sentence of twelve years with
one year suspended to probation. Moore now appeals.
Discussion & Decision
[5] Moore 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. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.
denied, 135 S.Ct. 978 (2015). 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, 1224 (Ind. 2008). Per App. R. 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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.
7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial
court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Robinson bears the
burden on appeal of persuading us that his sentence is inappropriate. See id.
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 3 of 6 [6] The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “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 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Additionally,
“appellate review should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Cardwell, 895 N.E.2d at 1225.
[7] Moore was convicted of three Level 5 felonies, 1 three Level 6 felonies,2 and one
class B misdemeanor,3 and he was adjudicated a habitual offender.4 Pursuant to
the terms of the plea agreement, the applicable sentencing range was ten to twelve
1 The statutory range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). 2 The statutory range for a Level 6 felony is six months to two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). 3 The maximum sentence for a class B misdemeanor is 180 days. I.C. § 35-50-3-3. 4 Because the habitual offender enhancement was attached to a Level 5 felony conviction, the applicable enhancement range was two to six years. See I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 4 of 6 years, and the decision to suspend any portion of the sentence was left to the trial
court’s discretion. The trial court imposed an aggregate sentence of twelve years
with one year suspended to probation.
[8] Considering the nature of the offenses, we note that Moore victimized his elderly
grandfather by entering his home while he was asleep and stealing checks, cash,
and his van. Moore successfully cashed one forged check and was arrested while
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MEMORANDUM DECISION FILED Apr 13 2016, 5:35 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court
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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Moore, April 13, 2016 Appellant-Defendant, Court of Appeals Case No. 16A05-1509-CR-1530 v. Appeal from the Decatur Superior Court State of Indiana, The Honorable Matthew D. Appellee-Plaintiff. Bailey, Judge Trial Court Cause No. 16D01-1502-F4-108
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 1 of 6 [1] Following a guilty plea, Thomas Moore was convicted of two counts of Level 5
felony Fraud on a Financial Institution, one count of Level 5 felony Criminal
Conversion, two counts of Level 6 felony Theft, one count of Level 6 felony
Possession of Methamphetamine, and one count of class B misdemeanor
Possession of Marijuana. He also admitted to being a habitual offender.
Moore received an aggregate sentence of twelve years, with one year suspended
to probation. On appeal, Moore argues that his sentence is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On February 24, 2015, Moore was captured on surveillance video entering the
home of his ninety-one-year-old grandfather, Paul Ricke. Upon entering the
home, Moore stole several checks from his grandfather’s checkbook. He then
entered the bedroom where his grandfather was sleeping and stole cash from his
wallet. Moore then stole Ricke’s van and drove to Ricke’s bank, where he
cashed a forged check for $500. Moore was arrested the next day when he
attempted to cash another forged check for nearly $2000. When Moore was
arrested, police found marijuana and methamphetamine in the stolen van.
[4] The State charged Moore with multiple offenses, and he ultimately agreed to
plead guilty to the charges set forth above. In exchange for Moore’s guilty plea,
the State agreed to dismiss an additional Level 4 felony burglary charge.
Pursuant to the plea agreement, all sentences were to be served concurrently
and Moore was to receive an aggregate sentence between ten and twelve years,
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 2 of 6 with the decision to suspend any portion of the sentence left to the trial court’s
discretion. In accordance with the plea agreement, the trial court sentenced
Moore to six years for each of his Level 5 felony convictions. The court
enhanced one of those convictions by six years, with one year suspended to
probation, based on the habitual offender adjudication. Also in accordance
with the plea agreement, the trial court sentenced Moore to twenty-six months
for each of his Level 6 felony convictions and one hundred eighty days for his
class B misdemeanor conviction, and ordered that all sentences were to run
concurrently. Thus, Moore received an aggregate sentence of twelve years with
one year suspended to probation. Moore now appeals.
Discussion & Decision
[5] Moore 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. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.
denied, 135 S.Ct. 978 (2015). 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, 1224 (Ind. 2008). Per App. R. 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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.
7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial
court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Robinson bears the
burden on appeal of persuading us that his sentence is inappropriate. See id.
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 3 of 6 [6] The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “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 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Additionally,
“appellate review should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Cardwell, 895 N.E.2d at 1225.
[7] Moore was convicted of three Level 5 felonies, 1 three Level 6 felonies,2 and one
class B misdemeanor,3 and he was adjudicated a habitual offender.4 Pursuant to
the terms of the plea agreement, the applicable sentencing range was ten to twelve
1 The statutory range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). 2 The statutory range for a Level 6 felony is six months to two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). 3 The maximum sentence for a class B misdemeanor is 180 days. I.C. § 35-50-3-3. 4 Because the habitual offender enhancement was attached to a Level 5 felony conviction, the applicable enhancement range was two to six years. See I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 4 of 6 years, and the decision to suspend any portion of the sentence was left to the trial
court’s discretion. The trial court imposed an aggregate sentence of twelve years
with one year suspended to probation.
[8] Considering the nature of the offenses, we note that Moore victimized his elderly
grandfather by entering his home while he was asleep and stealing checks, cash,
and his van. Moore successfully cashed one forged check and was arrested while
attempting to cash a second check the next day. Moreover, Moore possessed
marijuana and methamphetamine at the time of these offenses. The nature of
the offenses in this case is contemptible and supports the imposition of an
enhanced sentence.
[9] Considering the character of the offender, we note that Moore has a lengthy
criminal history, which would be sufficient standing alone to justify the sentence
imposed. Thirty-one-year-old Moore has amassed seven felony convictions, six
of which involve theft, fraud, or forgery. At his sentencing hearing, Moore
testified that in his adult life, the longest he has gone without serving time on an
offense was one year. Although we acknowledge that Moore apparently has a
substance abuse problem, Moore admitted that he has undergone court-ordered
treatment in the past but that he did not put effort into those programs and that
he has never voluntarily sought out treatment for himself. See Caraway v. State,
959 N.E.2d 847, 852 (Ind. Ct. App. 2011) (holding that substance abuse may be
considered an aggravating circumstance where the defendant is aware of his
addiction and does not seek treatment), trans. denied. Under these facts and
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 5 of 6 circumstances, we cannot conclude that Moore’s twelve-year aggregate sentence,
with one year suspended to probation, was inappropriate.
[10] Judgment affirmed.
[11] Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016 Page 6 of 6