MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   May 09 2017, 9:47 am

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
Victoria L. Bailey                                      Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Moore,                                          May 9, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1610-CR-2371
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        49G06-1509-F4-32722
                                                        49G06-1509-F4-34263
                                                        49G06-1510-F4-37673



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017                Page 1 of 10
                                          Case Summary
[1]   In this consolidated appeal, Appellant-Defendant Michael Moore challenges

      the sentence imposed by the trial court after Moore pled guilty to three counts

      of Level 4 felony burglary and to being a habitual offender. In challenging his

      sentence, Moore contends that the trial court abused its discretion by failing to

      find his guilty plea to be a significant mitigating factor. Finding no abuse of

      discretion by the trial court, we affirm.



                            Facts and Procedural History
[2]   This consolidated appeal follows from Moore’s guilty plea to one count of

      Level 4 felony burglary under Cause Number 49G06-1510-F4-37673 (“Cause

      No. F4-37673”), one count of Level 4 felony burglary under Cause Number

      49G06-1509-F4-34263 (“Cause No. F4-34263”), and one count of Level 4

      felony burglary and to being a habitual offender under Cause Number 49G06-

      1509-F4-32722 (“Cause No. F4-32722”).


                       A. Facts Relating to Cause No. F4-37673
[3]   In August of 2015, Timothy Shackelford lived in a home on Honen Drive

      North in Marion County. On August 11, 2015, law enforcement was

      dispatched to the 7500 block of Honen Drive North on a report of a burglary in

      progress. “A neighbor had stated that he had heard several loud noises coming

      from his neighbor’s house, and when [he] went to look to see what was going

      on, he saw a black SUV parked in his neighbor’s driveway and saw a black


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 2 of 10
      African American male fleeing from the residence.” Tr. p. 34. Upon arriving

      at the residence, law enforcement “immediately saw the front door had been

      kicked in” and “noticed a laptop and a flat screen on the floor.” Tr. p. 34.

      When Shackelford arrived on the scene, he “said nothing was missing;

      however, the t.v. that was on the floor had previously been hanging on the wall

      prior to the burglary.” Tr. p. 34. Law enforcement recovered a finger print

      from the television. Law enforcement later determined that the print belonged

      to Moore. Shackelford indicated that he did not know Moore and had not

      given him permission to be in his home. On October 23, 2015, Appellee-

      Plaintiff the State of Indiana (“the State”) charged Moore with one count of

      Level 4 felony burglary.


                       B. Facts Relating to Cause No. F4-34263
[4]   In August of 2015, Carolyn Hampton lived in a home on Crooked Meadows

      Drive in Marion County. On August 27, 2015, officers with the Indianapolis

      Metro Police Department were dispatched to a burglary in progress at a

      residence located on Crooked Meadows Drive. “A neighbor in the area had

      called 911 due to seeing an unknown vehicle at a neighbor’s house … and four

      African American males were loading items from the neighbor’s house into the

      vehicle.” Tr. p. 32.


[5]   Upon arriving at the scene of the burglary, law enforcement officers “came into

      contact with” Hampton. Tr. p. 32. Hampton indicated that “her house had

      been completely ransacked and the front door [had been] kicked in.” Tr. pp.

      32-33. Hampton also indicated that several items were missing, including
      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 3 of 10
      “jewelry, a flat screen t.v., a laptop, and a Roku antennae.” Tr. p. 33. Law

      enforcement recovered a finger print “from a black lid off a jewelry box” which

      Hampton informed law enforcement “had been moved during the burglary.”

      Tr. p. 33. Law enforcement later determined that the print belonged to Moore.

      Hampton indicated that she did not know Moore and had not given him

      permission to be in her home.


[6]   Law enforcement later questioned Moore about the print recovered from

      Hampton’s home. Moore “could not explain why his fingerprints were located

      inside the residence.” Tr. p. 33. On September 28, 2015, the State charged

      Moore with one count of Level 4 felony burglary.


                       C. Facts Relating to Cause No. F4-32722
[7]   In September of 2015, Karen Crawford lived in a home on Hickory Lake Drive

      in Marion County. On September 10, 2015, Moore, along with Deandre

      Lander and Carlissa Travis, broke and entered Crawford’s residence with the

      intent to commit theft therein. On that date, Moore instructed Lander to drive

      to Crawford’s residence to burglarize the home. Once the trio arrived at the

      residence, Moore kicked in the door and entered the residence, looking for

      items of value, specifically electronics. Moore ransacked the residence leaving

      “exterior doors left open and couch cushions and mattresses being moved

      around.” Tr. p. 29. Travis served as the lookout and “ran to the car once the

      neighbors saw her standing outside the home.” Tr. p. 29. Travis alerted Moore

      that “someone had seen her” after which Moore “ran to the car and told

      Lander to drive.” Tr. p. 30. A short time later, the vehicle in which the three
      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 4 of 10
      were traveling was stopped by law enforcement. “The eye witness who had

      called 911 came to the scene where Moore and the others were stopped” and

      positively identified Moore “as the one he saw inside” Crawford’s residence.

      Tr. p. 30. Crawford later told law enforcement that she did not know Moore

      and had not given him permission “to be in her home or ransack her home.”

      Tr. p. 30.


[8]   Moore subsequently admitted to participating in the burglary. On September

      14, 2015, the State charged Moore with one count of Level 4 burglary. The

      State subsequently amended the charging information to include the allegation

      that Moore was a habitual offender. Specifically, the State alleged that Moore

      had previously been convicted of Class D felony criminal gang activity and

      Level 5 felony carrying a handgun with a prior felony conviction within the last

      fifteen years.


                        D. Moore’s Guilty Plea and Sentencing
[9]   On July 28, 2016, Moore pled guilty under Cause Nos. F4-32722, F4-34263,

      and F4-37673 to three counts of Level 4 felony burglary and to being a habitual

      offender. The trial court accepted Moore’s guilty pleas. The trial court

      conducted a sentencing hearing on September 22, 2016. During this hearing

      the trial court heard evidence that Moore suffers from schizophrenia. The trial

      court ultimately sentenced Moore to an aggregate term of thirty-two years, with

      three years executed in the Department of Correction, three years executed in




      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 5 of 10
       community corrections, and the remaining time suspended to probation.1 The

       trial court indicated that as a condition of probation, Moore was to take any

       prescribed medications relating to his schizophrenia. 2



                                   Discussion and Decision
[10]   On appeal, Moore contends that the trial court abused its discretion in

       sentencing him. Sentencing decisions rest within the sound discretion of the

       trial court and are reviewed on appeal only for an abuse of discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on

       reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. (quotation omitted).


                One way in which a trial court may abuse its discretion is failing
                to enter a sentencing statement at all. Other examples include
                entering 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, or the sentencing statement omits reasons that are
                clearly supported by the record and advanced for consideration,
                or the reasons given are improper as a matter of law. Under



       1
         Given Moore’s status as a habitual offender, the six years executed represents the minimum required
       executed sentence.
       2
         In crafting Moore’s sentence, the trial court noted the significant amount of testimony indicating (1) that
       when taking his medication, Moore is a pleasant, law-abiding citizen and (2) that Moore’s criminal behavior
       coincides with periods during which Moore failed to take his medication.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017               Page 6 of 10
               those circumstances, remand for resentencing may be the
               appropriate remedy 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 490-91.


[11]   In challenging his sentence, Moore claims that the trial court abused its

       discretion by failing to find his guilty plea to be a significant mitigating factor.

       The finding of mitigating factors is discretionary with the trial court. Fugate v.

       State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 535 N.E.2d

       1152, 1155 (Ind. 1989)). The trial court is not required to find the presence of

       mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155). Further, the trial

       court is not required to weigh or credit the mitigating evidence the way

       appellant suggests it should be credited or weighed. Id. (citing Hammons v.

       State, 493 N.E.2d 1250, 1255 (Ind. 1986)). Likewise, if the trial court does not

       find the existence of a mitigating factor after it has been argued by counsel, the

       trial court is not obligated to explain why it has found that the factor does not

       exist. Id. (citing Hammons, 493 N.E.2d at 1254-55).


[12]   Moore claims that the trial court abused its discretion by failing to find the fact

       that he pled guilty to be a mitigating factor at sentencing. “[A]lthough we have

       long held that a defendant who pleads guilty deserves ‘some’ mitigating weight

       to be given to the plea in return, a guilty plea may not be significantly

       mitigating when the defendant receives a substantial benefit in return or when




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 7 of 10
       the defendant does not show acceptance of responsibility.” McElroy v. State, 865

       N.E.2d 584, 591 (Ind. 2007) (citations omitted).


[13]   In the instant matter, the record indicates that while Moore said that he took

       responsibility for his actions, he also placed blame for his actions on his co-

       defendants and his drug use. Specifically, Moore admitted to using drugs

       before at least one of the burglaries at issue in this case and stated that his drug

       use “makes [him] do bad things.” Appellant’s App. Vol. II, Confidential, pp.

       138-39. In addition, when asked why he committed the burglaries, Moore said

       “I don’t know. My co-defendants forced me to do it.” Appellant’s App. Vol.

       II, Confidential, pp. 139. Moore also indicated that he had suffered “just like”

       his victims had suffered and asserted that the “picture that y’all painted of me”

       by discussing the burglaries “is really false right now.” Tr. p. 87.


[14]   The trial court gave a lengthy sentencing statement during which it stated the

       following:

               and again when I hear you saying that things like the co-
               defendants made me do it, the drugs made me do it, and all of
               that stuff, again makes me concerned whether or not you
               understand that, no, you made those choices. You choose your
               co-defendants. You choose your drugs. You choose to break
               into people’s homes. Until you, again, accept the responsibility
               for it, you’re just going to be back here.


       Tr. p. 102. The trial court’s statement indicates that while the trial court might

       not have specifically referenced the fact that Moore pled guilty, the trial court

       clearly considered whether Moore took responsibility for his actions.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 8 of 10
[15]   The trial court’s sentencing statement makes it clear that the trial court

       considered the sincerity of Moore’s alleged remorse, noting that while Moore

       claimed to accept responsibility for his actions, he was, at least in part, blaming

       his conduct on other individuals and his drug use. We have previously

       concluded that the trial court “is in the best position to judge the sincerity of a

       defendant’s remorseful statements.” Stout v. State, 834 N.E.2d 707, 711 (Ind.

       Ct. App. 2005) (providing that while the defendant did indicate that he was

       very sorry for what he did, the trial court was in the best position to judge the

       sincerity of defendant’s remorseful statements). We will not disturb the trial

       court’s apparent determination that Moore’s acceptance of responsibility was

       not sincere.


[16]   Furthermore, we have previously held that a guilty plea does not amount to a

       significant mitigating factor “where the evidence against [the defendant] is such

       that the decision to plead guilty is merely a pragmatic one.” Wells v. State, 836

       N.E.2d 475, 479 (Ind. Ct. App. 2005) (citing Sensback v. State, 720 N.E.2d 1160,

       1165 (Ind. 1999)), trans. denied. The facts in this case demonstrate that finger

       prints connected Moore to two of the three burglaries and Moore admitted to

       participating in the third. As such, we conclude that the facts are such that

       would suggest that Moore’s decision to plead guilty was merely a pragmatic

       one.


[17]   In sum, we conclude that Moore has failed to demonstrate that his guilty plea

       warranted significant mitigating weight. Accordingly, we also conclude that



       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 9 of 10
       the trial court did not abuse its discretion by failing to find Moore’s guilty plea

       to be a significant mitigating factor.


[18]   The judgment of the trial court is affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2371 | May 9, 2017   Page 10 of 10
