                                                                      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
