MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Nov 08 2018, 8:27 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brian A. Karle                                          Curtis T. Hill, Jr.
Ball Eggleston, PC                                      Attorney General of Indiana
Lafayette, Indiana
                                                        Lyubov Gore
                                                        Tyler G. Banks
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Moffatt,                                        November 8, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1424
        v.                                              Appeal from the
                                                        Tippecanoe Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Steven P. Meyer, Judge
                                                        Trial Court Cause No.
                                                        79D02-1802-F4-3




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018             Page 1 of 9
[1]   Michael Moffatt (“Moffatt”) pleaded guilty to Level 4 felony unlawful

      possession of a firearm by a serious violent felon (“SVF”).1 On appeal, he

      challenges his sentence, raising the following restated issue: whether Moffatt’s

      six-year advisory sentence is inappropriate in light of the nature of the offense

      and Moffatt’s character.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On or about January 16, 2004, Moffatt was convicted of Class C felony robbery

      in Tippecanoe County. Tr. Vol. 2 at 13. He was designated an SVF and

      forbidden from possessing a firearm. Id. at 13, 17.


[4]   In mid-February 2018, Moffatt, his wife, Autumn, and their two children began

      living in an Economy Inn in Lafayette, Indiana. Id. at 13-14, 24. Even though

      he knew he was not allowed to have a firearm, Moffatt possessed a pellet gun,

      which he openly carried for protection. Id. at 14, 25-26. During this time,

      Moffatt and Autumn regularly used methamphetamine and drank alcohol in

      front of their children. Id. at 29-30, 33-35.


[5]   On the Moffatts’ first night in the hotel, someone attempted to break into their

      room. Id. at 25. Autumn called the police, and a day or two later, she bought a




      1
          See Ind. Code § 35-47-4-5(c).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018   Page 2 of 9
      .380 handgun. Id. at 25-27. At no point did Moffatt use or carry the handgun.

      Id. at 16-17.


[6]   On February 22, 2018, local police and Department of Child Services

      employees visited Moffatt’s hotel room for a “well-being check.” Id. at 15. The

      officers asked Moffatt if there was anything in the room that they should know

      about, and Moffatt alerted them to both the .380 handgun and the pellet gun,

      which were stowed on either a shelf or luggage rack. Appellant’s App. Vol. 2 at 8;

      Tr. Vol. 2 at 15-16, 28-29. The handgun was not loaded, but it had a loaded clip

      lying next to it. Tr. Vol. 2 at 16. The handgun was not within reach of the

      children, and it was never in the actual possession of Moffatt. Id. at 16-17, 28.


[7]   On February 23, 2018, Moffatt was charged with Level 4 felony unlawful

      possession of a firearm by an SVF. Appellant’s App. Vol. 2 at 7. On April 25,

      2016, Moffatt pleaded guilty as charged without the benefit of a plea agreement.

      Tr. Vol. 2 at 4, 12. In doing so, he admitted he constructively possessed the

      handgun. Id. at 16-17.


[8]   At the May 21, 2018 sentencing hearing, the trial court cited Moffatt’s criminal

      history, his three prior probation violations, and his unsatisfactory discharge

      from probation as aggravating circumstances. Appellant’s App. Vol. 2 at 30; Tr.

      Vol. 2 at 45-46. As mitigating factors, it found that Moffatt pleaded guilty

      without the benefit of a plea agreement; that he cooperated with police when he

      was arrested; that he has accepted responsibility for his actions; and that he

      suffers from mental health and substance abuse issues, although he has not fully


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018   Page 3 of 9
      exploited treatment options that had been offered to him. Appellant’s App. Vol. 2

      at 31; Tr. Vol. 2 at 44-46. The trial court concluded that the aggravating factors

      and mitigating factors were in equipoise and sentenced Moffatt to six years, the

      advisory sentence for a Level 4 felony, with four years executed in the

      Department of Correction and two years suspended to supervised probation.

      Appellant’s App. Vol. 2 at 5, 31, 39; Tr. Vol. 2 at 46-47. Moffatt now appeals.


                                     Discussion and Decision
[9]   Under Indiana Appellate Rule 7(B), we may revise a sentence if, after due

      consideration of the trial court’s decision, we find the sentence inappropriate

      considering the nature of the offense and the character of the offender.

      Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (2007). We consider not only the aggravators and mitigators found by the

      trial court but also any other factors appearing in the record. Johnson v. State,

      986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s

      decision, and our goal is to determine whether the appellant’s sentence is

      inappropriate, not whether some other sentence would be more appropriate.

      Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “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). When we review a sentence, we seek to leaven the outliers, not to

      achieve a perceived correct result. Cardwell, 895 N.E.2d 1219, 1225 (Ind. 2008).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018   Page 4 of 9
                                                 Nature of Offense

[10]   When considering the nature of the offense, the advisory sentence is the starting

       point in our analysis. Holloway v. State, 950 N.E.2d 803, 806 (Ind. Ct. App.

       2011); Anglemyer, 868 N.E.2d at 494. A Level 4 felony carries an advisory

       sentence of six years, with a range of two to twelve years. Ind. Code § 35-50-2-

       5.5. A reviewing court is “unlikely to consider an advisory sentence

       inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans.

       denied. A defendant carries a “particularly heavy burden” to show that his

       advisory sentence is inappropriate. Fernbach v. State, 954 N.E.2d 1080, 1089

       (Ind. Ct. App. 2011), trans. denied.


[11]   Relying on Johnson, 986 N.E.2d at 856, Moffatt argues that his sentence is

       inappropriate because his offense was significantly less egregious than the

       “typical” offense of unlawful possession of a firearm by an SVF. In support, he

       recites the following facts: 1) he possessed only a single firearm2 and did so for

       less than one week; 2) he did not buy the handgun; Autumn bought it for home

       protection after their residence was burglarized; 3) he never handled the

       handgun and did not use it to commit a crime; and 4) he cooperated with the

       officers who came to the residence by alerting them to the presence of the

       handgun. See Appellant’s Br. at 8.




       2
        Moffatt actually possessed two firearms: 1) the .380 handgun (through constructive possession); and 2) the
       pellet gun, which, under Indiana Code section 35-47-1-5, is a firearm.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018                 Page 5 of 9
[12]   However, the “less egregious” analysis from Johnson does not apply here. In

       Johnson, the trial court imposed a sentence greater than the advisory sentence,

       unlike the six-year advisory sentence the trial court imposed here. The Johnson

       court noted, “One factor we consider when determining the appropriateness of

       a deviation from the advisory sentence is whether there is anything egregious

       about the offense committed by the defendant that makes it different from the

       “typical” offense . . . . Id. at 856 (emphasis added). Thus, because the trial

       court here imposed the advisory sentence, Johnson has no bearing on whether

       Moffatt’s sentence is inappropriate.


[13]   Beyond the inapplicability of Johnson, several factors regarding the nature of

       Moffatt’s offense show that his sentence is not inappropriate. Moffatt did not

       hide the handgun from the children but left it on a rack and left an ammunition

       clip next the handgun. Appellant’s App. Vol. 2 at 8; Tr. Vol. 2 at 16. Moffatt also

       regularly carried a pellet gun. Id. at 14, 25-26. Thus, the nature of Moffatt’s

       offense shows that his sentence is not inappropriate.


                                            Character of Offender

[14]   Moffatt contends his sentence is inappropriate in light of his character. He

       contends that by pleading guilty without the benefit of a plea agreement, he has

       accepted his responsibility for his offense. He also notes that before he was

       sentenced, he participated in classes to pursue his high school equivalency. Tr.

       Vol. 2 at 32-33. He also points to his mental illnesses, which include post-

       traumatic stress disorder, ADHD, manic depression, and paranoid

       schizophrenia. Id. at 5-6, 31. He claims that his untreated mental illness
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018   Page 6 of 9
       exacerbates his drug and alcohol problems and contributed to his poor decision-

       making. See Wampler v State, 67 N.E.2d 633, 634-35 (Ind. 2017) (recognizing

       the defendant’s untreated mental health issues and revising sentencing under

       Appellate Rule 7(B)).


[15]   Moffatt concedes that his criminal history “is a strike against him.” Appellant’s

       Br. at 9. Nonetheless, he argues that despite this history, his six-year advisory

       sentence is inappropriate. First, be contends that his lone prior felony

       conviction, the 2004 robbery conviction that made him an SVF, should not be

       used as an aggravator because that conviction was the basis of his SVF status.

       Moffatt contends that, as such, the 2004 robbery conviction was an element of

       the instant offense for unlawful possession of a firearm by an SVF. Citing

       Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), he claims that as an element

       of his instant offense, the 2004 robbery conviction cannot be used as an

       aggravating factor for this offense.3 Second, even if Spears does not apply,

       Moffatt argues that the felony conviction should not carry great weight because

       that conviction occurred fourteen years ago. As to his many misdemeanor

       convictions, Moffatt downplays those offenses by claiming that most of those




       3
         In so arguing, Moffatt is impliedly arguing that the trial court abused its discretion in imposing the advisory
       sentence, but nowhere in his brief does Moffatt explicitly raise a separate abuse-of-discretion argument, as he
       should, because such an argument is analyzed separately from argument that a sentence is inappropriate.
       “As our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be
       analyzed separately. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh'g, 875 N.E.2d 218
       (Ind.2007).” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018                      Page 7 of 9
       convictions were for non-violent offenses, such as public intoxication and minor

       consumption. Appellant’s Conf. App. Vol. 2 at 48-49.


[16]   We reject Moffatt’s attempt to minimize the severity of his significant criminal

       record. Even without considering his 2004 felony robbery conviction, we find

       Moffatt’s substantial criminal history is a firm basis for finding that his advisory

       sentence is not inappropriate. That criminal record shows that as a juvenile,

       Moffatt was adjudicated delinquent for what would have been Class D felony

       theft and possession of a firearm, and he was often arrested, for offenses such as

       alcohol-related crimes, trafficking with an inmate, disorderly conduct, and

       resisting law enforcement. Id. at 46-48. As an adult, Moffatt has been convicted

       of, inter alia, Class C felony robbery, resisting law enforcement, public

       intoxication (three times), and disorderly conduct. Id. Moffatt’s probation has

       been revoked three times, and he is at a high risk to reoffend. Id. at 53.

       Moffatt’s criminal record shows that his six-year advisory sentence is not

       inappropriate.


[17]   We also reject Moffatt’s attempt to minimize his drug and alcohol problems.

       Moffatt has been abusing alcohol for twenty-four years. Id. at 52-53. He has

       used marijuana, synthetic marijuana, cocaine, methamphetamine, mushrooms,

       ecstasy, and Lortab. Id. His substance abuse continues despite participating in

       numerous substance abuse treatment programs. Id. at 53; Tr. Vol. 2 at 30-31,

       34. When a defendant is aware of a substance abuse problem but has not taken

       steps to treat it, the trial court can determine that the addiction is an aggravating

       circumstance. See Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018   Page 8 of 9
       Further, Moffatt and Autumn regularly abused methamphetamine and alcohol

       in front of their children. Tr. Vol. 2 at 29-30, 33-35. The children tested positive

       for both methamphetamine and THC. Appellant’s Conf. App. Vol. 2 at 51. Thus,

       as with his criminal history, Moffatt’s history of substance abuse shows that his

       sentence is not inappropriate.


[18]   Finally, we are unpersuaded that Moffatt’s sentence is inappropriate because he

       accepted responsibility for his crime by pleading guilty. “[T]he significance of a

       guilty plea as a mitigating factor varies from case to case.” Anglemyer, 875

       N.E.2d at 221. Because of the compelling evidence of Moffatt’s guilt, his plea

       was arguably “more likely the result of pragmatism than acceptance of

       responsibility and remorse.” Mull v. State, 770 N.E.2d 308, 314 (Ind. 2002)

       (citations omitted); see also Primmer v. State, 857 N.E.2d 11, 16 (Ind. Ct. App.

       2006), trans. denied.


[19]   In sum, Moffatt has not satisfied the “particularly heavy burden” to show that

       his six-year advisory sentence is inappropriate. See Fernbach, 954 N.E.2d at

       1089.


[20]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1424 | November 8, 2018   Page 9 of 9
