FILED Aug 16 2016, 10:07 am MEMORANDUM DECISION CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), this Court of Appeals and Tax Court Memorandum Decision shall not be 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nicholas A. Siler Gregory F. Zoeller West Baden Springs, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy S. Morrow, Jr., August 16, 2016
Appellant-Defendant, Court of Appeals Case No. 51A05-1603-CR-505
v. Appeal from the Martin Circuit Court State of Indiana, The Hon. Lynne E. Ellis, Judge Trial Court Cause No. 51C01-1509- Appellee-Plaintiff. F5-148
Bradford, Judge.
Case Summary [1] Appellant-Defendant Timothy Morrow, Jr., agreed to plead guilty to Level 6
felony pointing a firearm with a cap of two years on his executed sentence. The
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 1 of 7 trial court sentenced Morrow to two and one-half years of incarceration, with
six months suspended to probation. Morrow contends that the trial court
abused its discretion in sentencing him and that his sentence is inappropriately
harsh in light of the nature of his offense and his character. Because we
disagree with both contentions, we affirm.
Facts and Procedural History [2] On September 4, 2015, approximately six weeks after being released from
juvenile detention, Morrow became involved in an altercation with his neighbor
Jacob Breeden. During the fight, Morrow threatened to kill Breeden, drew a
pistol, and pointed it at Breeden. On September 4, 2015, Appellee-Plaintiff the
State of Indiana charged Morrow with Level 5 felony intimidation and Level 6
felony pointing a firearm.
[3] On December 22, 2015, Morrow entered into a written plea agreement under
which he agreed to plead guilty to Level 6 felony pointing a firearm, the State
agreed to dismiss the Level 5 felony intimidation charge, and the State agreed
that the executed portion of Morrow’s sentence would be capped at two years.
On February 2, 2016, Morrow pled guilty to Level 6 felony pointing a firearm
and the trial court sentenced him to two and one-half years, with two years
executed and six months suspended to probation. Morrow contends that the
trial court abused its discretion in sentencing him and that his sentence is
inappropriately harsh.
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 2 of 7 Discussion and Decision I. Abuse of Discretion [4] Under our current sentencing scheme, “the trial court must enter a statement
including reasonably detailed reasons or circumstances for imposing a
particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the
sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the
decision is clearly against the logic and effect of the facts and circumstances.”
Id.
[5] A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at
all[,]” (2) enters “a sentencing statement that explains reasons for imposing a
sentence–including a finding of aggravating and mitigating factors if any–but
the record does not support the reasons,” (3) enters a sentencing statement that
“omits reasons that are clearly supported by the record and advanced for
consideration,” or (4) considers reasons that “are improper as a matter of law.”
Id. at 490-91. If the trial court has abused its discretion, we will remand for
resentencing “if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id. at 491. However, the relative weight or value
assignable to reasons properly found, or to those which should have been
found, is not subject to review for abuse of discretion. Id.
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 3 of 7 [6] Morrow contends that the trial court abused its discretion in failing to consider
the aggravating and mitigating factors specifically listed in Indiana Code section
35-38-1-7.1. The statute, however, provides that “[i]n determining what
sentence to impose for a crime, the court may consider the following
aggravating [and mitigating] circumstances[.]” Ind. Code § 35-38-1-7.1(a), -
7.1(b) (emphasis added). There is no requirement that a trial court generate a
list of aggravating and mitigating circumstances, only that it state reasonably
detailed reasons. See Anglemyer, 868 N.E.2d at 490. We conclude that the trial
court has satisfied this requirement.
[7] In imposing the maximum two-year executed sentenced allowed under the plea
agreement, the trial court focused on Morrow’s previously squandered
opportunities to reform himself. The trial court noted that Morrow had been
before it “on juvenile issues” and was given opportunities of which he did not
take advantage. Tr. p. 35. The trial court specifically noted that Morrow had
been out of juvenile detention approximately six weeks when he pulled a gun
on Breeden, noting that “that was opportunity number two to learn and walk
the line.” Tr. p. 36. The trial court also noted that Morrow was ineligible for
community corrections “because he, he failed that” and that “the probation
department doesn’t want him.” Tr. p. 36. The trial court stated, “Once again
I’m going to leave it in his lap. Uh, I left it in his lap the first time and he really
wasn’t to[o] interested [in] being successful.” Tr. p. 37. The record is clear that
the trial court imposed a two-year executed sentence because it felt that
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 4 of 7 previous attempts at leniency have failed. This is sufficient. Morrow has failed
to establish an abuse of discretion in this regard.
II. Appropriateness of Sentence [8] We “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.” Ind.
Appellate Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “[W]hether we regard a sentence as 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 others, and myriad other factors that
come to light in a given case.” Cardwell v.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED Aug 16 2016, 10:07 am MEMORANDUM DECISION CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), this Court of Appeals and Tax Court Memorandum Decision shall not be 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nicholas A. Siler Gregory F. Zoeller West Baden Springs, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy S. Morrow, Jr., August 16, 2016
Appellant-Defendant, Court of Appeals Case No. 51A05-1603-CR-505
v. Appeal from the Martin Circuit Court State of Indiana, The Hon. Lynne E. Ellis, Judge Trial Court Cause No. 51C01-1509- Appellee-Plaintiff. F5-148
Bradford, Judge.
Case Summary [1] Appellant-Defendant Timothy Morrow, Jr., agreed to plead guilty to Level 6
felony pointing a firearm with a cap of two years on his executed sentence. The
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 1 of 7 trial court sentenced Morrow to two and one-half years of incarceration, with
six months suspended to probation. Morrow contends that the trial court
abused its discretion in sentencing him and that his sentence is inappropriately
harsh in light of the nature of his offense and his character. Because we
disagree with both contentions, we affirm.
Facts and Procedural History [2] On September 4, 2015, approximately six weeks after being released from
juvenile detention, Morrow became involved in an altercation with his neighbor
Jacob Breeden. During the fight, Morrow threatened to kill Breeden, drew a
pistol, and pointed it at Breeden. On September 4, 2015, Appellee-Plaintiff the
State of Indiana charged Morrow with Level 5 felony intimidation and Level 6
felony pointing a firearm.
[3] On December 22, 2015, Morrow entered into a written plea agreement under
which he agreed to plead guilty to Level 6 felony pointing a firearm, the State
agreed to dismiss the Level 5 felony intimidation charge, and the State agreed
that the executed portion of Morrow’s sentence would be capped at two years.
On February 2, 2016, Morrow pled guilty to Level 6 felony pointing a firearm
and the trial court sentenced him to two and one-half years, with two years
executed and six months suspended to probation. Morrow contends that the
trial court abused its discretion in sentencing him and that his sentence is
inappropriately harsh.
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 2 of 7 Discussion and Decision I. Abuse of Discretion [4] Under our current sentencing scheme, “the trial court must enter a statement
including reasonably detailed reasons or circumstances for imposing a
particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the
sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the
decision is clearly against the logic and effect of the facts and circumstances.”
Id.
[5] A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at
all[,]” (2) enters “a sentencing statement that explains reasons for imposing a
sentence–including a finding of aggravating and mitigating factors if any–but
the record does not support the reasons,” (3) enters a sentencing statement that
“omits reasons that are clearly supported by the record and advanced for
consideration,” or (4) considers reasons that “are improper as a matter of law.”
Id. at 490-91. If the trial court has abused its discretion, we will remand for
resentencing “if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id. at 491. However, the relative weight or value
assignable to reasons properly found, or to those which should have been
found, is not subject to review for abuse of discretion. Id.
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 3 of 7 [6] Morrow contends that the trial court abused its discretion in failing to consider
the aggravating and mitigating factors specifically listed in Indiana Code section
35-38-1-7.1. The statute, however, provides that “[i]n determining what
sentence to impose for a crime, the court may consider the following
aggravating [and mitigating] circumstances[.]” Ind. Code § 35-38-1-7.1(a), -
7.1(b) (emphasis added). There is no requirement that a trial court generate a
list of aggravating and mitigating circumstances, only that it state reasonably
detailed reasons. See Anglemyer, 868 N.E.2d at 490. We conclude that the trial
court has satisfied this requirement.
[7] In imposing the maximum two-year executed sentenced allowed under the plea
agreement, the trial court focused on Morrow’s previously squandered
opportunities to reform himself. The trial court noted that Morrow had been
before it “on juvenile issues” and was given opportunities of which he did not
take advantage. Tr. p. 35. The trial court specifically noted that Morrow had
been out of juvenile detention approximately six weeks when he pulled a gun
on Breeden, noting that “that was opportunity number two to learn and walk
the line.” Tr. p. 36. The trial court also noted that Morrow was ineligible for
community corrections “because he, he failed that” and that “the probation
department doesn’t want him.” Tr. p. 36. The trial court stated, “Once again
I’m going to leave it in his lap. Uh, I left it in his lap the first time and he really
wasn’t to[o] interested [in] being successful.” Tr. p. 37. The record is clear that
the trial court imposed a two-year executed sentence because it felt that
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 4 of 7 previous attempts at leniency have failed. This is sufficient. Morrow has failed
to establish an abuse of discretion in this regard.
II. Appropriateness of Sentence [8] We “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.” Ind.
Appellate Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “[W]hether we regard a sentence as 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 others, and myriad other factors that
come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). In addition to the “due consideration” we are required to give to the
trial court’s sentencing decision, “we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Rutherford v. State,
866 N.E.2d 867, 873 (Ind. Ct. App. 2007). As mentioned, the trial court
sentenced Morrow to two-and-a-half years of incarceration, with six months
suspended to probation.
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 5 of 7 [9] The nature of Morrow’s offense justifies his enhanced sentence. Morrow did
much more than required to prove the offense of Level 6 felony pointing a
firearm. During Morrow’s argument with Breeden, in addition to pointing a
gun at him, Morrow also threatened to kill him. Nothing in the record
indicates that Morrow’s actions were even remotely justified by anything
Breeden did. As the prosecutor noted at sentencing, “this was an extremely
dangerous situation” and “one half second away from murder.” Tr. pp. 33, 34.
Moreover, Morrow had only been free from juvenile detention for
approximately six weeks when these events occurred.
[10] Morrow’s character also fully justifies his enhanced sentence. Morrow, who
was eighteen years old at sentencing, had only recently been released from
juvenile detention when he committed the acts that led to the instant
conviction. Although the record does not contain the details of Morrow’s
history with the juvenile justice system, it would seem to be somewhat
extensive. The prosecutor mentions Morrow’s “fairly significant juvenile
history” and that he has spent time in state institutions. Tr. p. 32. Morrow’s
history is significant enough that he is ineligible for community corrections and
the probation department does not consider him to be a good candidate for
probation. The trial court noted that Morrow had been before it on juvenile
cases, had failed community corrections already, and that this case represented
Morrow’s “third opportunity.” Tr. p. 36. In addition, Morrow was
administered an Indiana Risk Assessment Tool, which indicated a high risk to
reoffend if put on community supervision.
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 6 of 7 [11] Despite Morrow’s numerous opportunities to conform his behavior to societal
norms, he has not yet chosen to do so. Morrow argues that his incarceration
for this crime so soon after being released from juvenile detention prevents him
from creating life for himself as an adult. This argument ignores, however, that
Morrow himself is entirely responsible for that incarceration. Morrow has not
persuaded us that his sentence is inappropriate in light of the nature of his
offense and his character.
[12] We affirm the judgment of the trial court.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 51A05-1603-CR-505 | August 16, 2016 Page 7 of 7