                                                                                FILED
                                                                            Apr 27 2016, 8:13 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Megan Shipley                                              Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Brian Reitz
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Andrew Shotts,                                             April 27, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1509-CR-1347
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable David Seiter,
Appellee-Plaintiff.                                        Commissioner
                                                           Trial Court Cause No.
                                                           49G20-1404-FB-17437



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                    Page 1 of 24
[1]   Andrew Shotts appeals his conviction and sentence for Unlawful Possession of

      a Firearm by a Serious Violent Felon,1 a Class B Felony. Shotts argues that he

      was seized in violation of the Fourth Amendment to the United States

      Constitution and that evidence obtained as a result of this seizure should not

      have been admitted at trial. Finding that Shotts’s seizure was authorized

      pursuant to the United States Supreme Court’s decision in Michigan v. Summers,

      452 U.S. 692 (1981), we find no error in the trial court’s refusal to exclude

      evidence obtained as a result of the seizure. We also find that the trial court did

      not err in sentencing Shotts and that his sentence is not inappropriate.

      Accordingly, we affirm the trial court and remand for the limited purpose of

      vacating Shotts’s conviction and sentence for Visiting a Common Nuisance, 2 a

      Class B misdemeanor, as the charge had been dismissed before trial.


                                                      Facts     3




[2]   On April 4, 2014, officers of the Indianapolis Metropolitan Police Department

      (IMPD) executed a search warrant for a house located at 913 North LaSalle

      Street in Marion County. The warrant authorized the search and seizure of

      heroin, as well as evidence related to drug trafficking, and the arrest of a man by




      1
          Ind. Code § 35-47-4-5.
      2
          Ind. Code § 35-48-4-13.
      3
       We held oral argument in this case on March 22, 2016, in Indianapolis. We would like to thank both
      parties for their exceptional oral advocacy.

      Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                    Page 2 of 24
      the name of Joshua Summers. In executing the search, IMPD officers were

      initially joined by members of the IMPD SWAT team.


[3]   Upon entering the house, the officers found seven people and a dog. The

      officers handcuffed the seven individuals and took them to the downstairs

      dining room. Several officers were assigned to get basic information from the

      detainees, while others conducted the search. The SWAT team then left to

      respond to a shooting that had occurred nearby. The remaining officers

      interviewed the detainees and conducted a search of the house, eventually

      finding heroin, cocaine, suboxone, and drug paraphernalia.


[4]   While the search was ongoing, one of the detectives, Detective Kessey, looked

      out of the window and noticed a car pull up and park in front of the residence.

      He then watched an individual, later identified as Andrew Shotts, get out of the

      car and approach the residence.4 Detective Kessey alerted the officers

      downstairs that Shotts was approaching.


[5]   Officer Hemphill was downstairs when he heard Detective Kessey’s warning.

      He looked outside and saw Shotts entering the house’s enclosed front porch

      area. Officer Hemphill—who was wearing plain clothes, a black mask, and a

      black tactical vest that displayed the word “Police” in large letters—asked

      Shotts what he was doing and told him to “stop right there.” Tr. p. 34. Shotts




      4
       It is not clear from the record whether an individual approaching the residence would have had reason to
      believe that a search was being conducted inside.

      Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                      Page 3 of 24
      stated that he was there to see his friend and continued walking into the front

      porch area. Officer Hemphill noticed that Shotts had his right hand in his

      pocket and ordered Shotts to remove it. Shotts did not do so and continued to

      walk towards the front door, again stating that he was there to see his friend.

      Shotts passed through the front door and entered the house. Officer Hemphill

      again told him to stop, but Shotts continued to move forward, peering around

      Officer Hemphill so that he could look into the dining room.


[6]   At this point, Officer Hemphill drew his gun. Shotts stopped and again stated

      that he was there to see his friend. Officer Hemphill ordered Shotts to remove

      his hand from his pocket. Shotts complied, putting both of his hands in the air.

      Officer Hemphill grabbed Shotts’s right arm and Shotts attempted to pull away.

      Officer Hemphill then spun Shotts down onto a couch and handcuffed him. He

      asked Shotts what was in his pocket, and Shotts replied “my gun.” Tr. p. 28.

      Officer Hemphill then patted Shotts down and found a purple handgun.


[7]   Shotts was arrested and charged with class B felony unlawful possession of a

      firearm by a serious violent felon and class B misdemeanor visiting a common

      nuisance. Shotts filed a motion to suppress evidence found on his person,

      arguing that he had been “detained, arrested, and searched unlawfully and

      without a warrant or probable cause.” Appellant’s App. p. 63. On July 22,

      2015, the trial court held a simultaneous suppression hearing and bench trial.

      At the start of proceedings, the State moved to dismiss the visiting a common

      nuisance charge and the trial court granted the motion. Tr. p. 4. The court



      Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 4 of 24
      then denied Shotts’s suppression motion, noting that Shotts had ignored Officer

      Hemphill’s initial orders to stop. It concluded that because


                 [t]he defendant kept advancing into the house[,] [t]he court finds
                 under the totality of the circumstances, it was reasonable [to]
                 conduct [a] pat down of the defendant, based on the factors
                 reiterated by the officers during the testimony, and that the pat
                 down resulted in the lawful recovery of the firearm.


      Tr. p. 44. The trial court then found Shotts guilty of unlawful possession of a

      firearm by a serious violent felon.


[8]   On August 18, 2015, the trial court sentenced Shotts to eighteen years, with

      twelve years executed at the Department of Correction, two years executed at

      Community Corrections, and four years suspended. The trial court also

      sentenced Shotts to 180 days, to run concurrently with his other sentence, for

      visiting a common nuisance, despite the fact the State had moved to dismiss

      this charge and Shotts had not been convicted of it. 5 Shotts now appeals.


                                       Discussion and Decision
[9]   On appeal, Shotts raises several issues related to his seizure, as well as to the

      propriety of his sentence. As to the seizure, he argues that the handgun found

      on his person should have been suppressed because he was seized in violation




      5
          Both parties acknowledge that this was error. Appellee’s Br. p. 16.


      Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016       Page 5 of 24
       of the Fourth Amendment to the United States Constitution.6 As to his

       sentence, he argues that the trial court erred in considering his risk assessment

       score as an independent aggravator and in failing to exclude his 2009 robbery

       conviction from its consideration, as this conviction was itself an element of the

       offense of possession of a firearm by a serious violent felon. He also argues that

       his sentence is inappropriate in light of the nature of the offense and his

       character.


                                 I. Suppression of the Handgun
[10]   Shotts first argues that the trial court erred in admitting the handgun into

       evidence because it was discovered as the result of an unconstitutional seizure.

       The decision to admit or exclude evidence lies within the discretion of the trial

       court. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). Accordingly, we review

       a trial court’s denial of a motion to suppress evidence deferentially, construing

       conflicting evidence in the light most favorable to the ruling. Id. However,

       “[w]hen the trial court’s denial of a defendant’s motion to suppress concerns the

       constitutionality of a search or seizure . . . it presents a question of law, and we

       address that question de novo.” Id.


[11]   The Fourth Amendment to the United States Constitution provides that


                  The right of the people to be secure in their persons . . . against
                  unreasonable searches and seizures, shall not be violated, and no




       6
           Shotts makes no argument with regard to the Indiana Constitution.


       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016    Page 6 of 24
                  Warrants shall issue, but upon probable cause . . . particularly
                  describing the place to be searched, and the persons or things to
                  be seized.


       The U.S. Supreme Court has recognized a “‘general rule that Fourth

       Amendment seizures are “reasonable” only if based on probable cause’ to

       believe that the individual has committed a crime.” Bailey v. United States, 133

       S.Ct. 1031, 1037 (2013) (quoting Dunaway v. New York, 442 U.S. 200, 213

       (1979)). While the Supreme Court has found exceptions to this general rule, it

       has been clear that these exceptions are to remain narrow in scope. Dunaway,

       442 U.S. at 211; Bailey, 133 S.Ct. at 1044 (Scalia J., concurring). The State

       bears the burden of demonstrating that a seizure conducted without probable

       cause falls within one of the exceptions. See Taylor v. State, 659 N.E.2d 535, 537

       (Ind. 1995).


[12]   The State relies on two exceptions to the probable cause requirement, one

       identified in Terry v. Ohio, 392 U.S. 1 (1968), which relates to a brief stop and

       frisk for weapons, and another identified in Michigan v. Summers, 452 U.S. 692

       (1981), which relates to the execution of a search warrant. We believe that

       Summers should control our decision in this case.7 However, before we delve

       into our discussion of Summers, we find it necessary to discuss some difficulties

       we have with portions of the State’s argument under Terry.




       7
           For this reason we do not address the State’s argument that the officers had probable cause to arrest Shotts.


       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                            Page 7 of 24
                                                A. Terry Stop
[13]   The State asserts that it was reasonable for the officers to detain Shotts and that

       “[t]hat answer is derived from standards put forth by the Supreme Court of the

       United States . . . .” Appellee’s Br. p. 18. The argument that follows makes

       numerous citations to cases that rely on both Terry and Summers. Id. at 18-26.

       Although the State does not conduct a proper Terry analysis, its argument seems

       to rely on Terry’s reasoning to some extent, and, given that the trial court

       seemed to rely on Terry as well, tr. p. 44, we will briefly address it.


[14]   Under Terry, an officer is permitted to “stop and briefly detain a person for

       investigative purposes if the officer has a reasonable suspicion supported by

       articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks

       probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989). Because Terry

       allows for seizures on less than probable cause, the degree of intrusion caused

       by the seizure must be circumscribed. Kolender v. Lawson, 461 N.E.2d 352, 364-

       65 (1983) (Brennan J., concurring). Thus, while Terry allows for a brief

       investigatory stop, it does not allow for a formal arrest. Kelly v. State, 997

       N.E.2d 1045, 1051 (Ind. 2013).


[15]   While distinguishing between an investigatory stop and an arrest presents the

       greatest difficulty in applying Terry to the facts of this case, the State fails to

       address the issue. This distinction is critical, however, as Terry does not allow

       us to conclude that it was reasonable for the officers to arrest Shotts on less than

       probable cause.


       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016     Page 8 of 24
[16]   As the United States Supreme Court has acknowledged, “Fourth Amendment

       jurisprudence has long recognized that the right to make an arrest or

       investigatory stop necessarily carries with it the right to use some degree of

       physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386,

       396 (1989). “Determining whether the force used to effect a particular seizure is

       ‘reasonable’ under the Fourth Amendment requires a careful balancing of the

       nature and quality of the intrusion on the individual’s Fourth Amendment

       interests against the countervailing governmental interests at stake.” Id. But

       “[n]either Federal nor Indiana constitutional jurisprudence has developed a

       ‘bright line’ test for determining when an investigatory detention moves beyond

       merely a Terry stop and becomes an arrest . . . .” Jones v. State, 655 N.E.2d 49,

       55 (Ind. 1995). Courts of this State have reached varied conclusions based on

       the unique facts presented by different scenarios. See Kelly, 997 N.E.2d at 1051

       (defendant ordered out of car at gunpoint and handcuffed was under arrest for

       Fourth Amendment purposes); Wright v. State, 766 N.E.2d 1223, 1230-34 (Ind.

       Ct. App. 2002) (defendant ordered out of car, handcuffed, but told he was not

       under arrest, was not under arrest for Fourth Amendment purposes, but was “in

       custody” for Fifth Amendment purposes).8




       8
         Our Supreme Court stated in Kelly that the test used to distinguish a Terry stop from a formal arrest is:
       “would a reasonable person, in the same situation as the defendant, believe she was free to leave?” 997
       N.E.2d at 1051; see also Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996) (“It has long been held that an arrest
       occurs when a police officer interrupts the freedom o[f] the accused an[d] restricts his liberty of movement.”);
       Peterson v. State, 234 N.E.2d 488, 490, 250 Ind. 269, 272 (1968). This test appears to be derived from Henry v.
       United States, in which the United States Supreme Court held that an arrest occurs when an officer restricts an
       individual’s liberty of movement. 361 U.S. 98, 103 (1959). However, Henry pre-dates Terry by nine years
       and was decided at a time when the concept of seizure was synonymous with that of arrest—Terry stops had

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                          Page 9 of 24
[17]   Here, Shotts was stopped at gunpoint and pushed down onto a couch before

       being handcuffed. While the State correctly observed at oral argument that

       courts have refused to find the use of handcuffs to be wholly determinative, it

       has done little else to persuade us that this was a brief investigatory stop rather

       than a formal arrest for Terry purposes. We therefore decline the State’s request

       to uphold the trial court’s ruling under Terry. Instead, we choose to analyze

       this case under Summers, which applies specifically to seizures of individuals

       during the execution of search warrants.


                                       B. Michigan v. Summers
[18]   In Summers, police were executing a warrant authorizing a search of Summers’s

       home for contraband. 452 U.S. at 693. Upon their arrival, they encountered

       Summers descending his front steps. Id. The officers then requested that

       Summers assist them in gaining entry to his home and detained him while they

       searched the premises. Id. The United States Supreme Court found that the

       officers acted constitutionally, holding that “a warrant to search for contraband

       founded on probable cause implicitly carries with it the limited authority to




       not yet been recognized. Clearly, if the “not free to leave” test were applied to an individual who had been
       handcuffed, it would follow that he had been arrested, as no one could rightfully say that an individual in
       handcuffs would feel free to walk away. But see Payne v. State, 854 N.E.2d 1199, 1204-05 (Ind. Ct. App. 2006)
       (applying “not free to leave” test and holding that individual who had consented to being handcuffed “was
       not forcibly restrained against his will” and, therefore, not under arrest). This gives us further reason to
       hesitate in applying Terry to the facts of this case—in light of the fact that Summers presents an alternative
       means of deciding the issue—as our Terry jurisprudence seems to be in need of clarification.

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                       Page 10 of 24
       detain the occupants of the premises while a proper search is conducted.” Id. at

       705.


[19]   In recognizing this exception, the Supreme Court balanced the intrusion into

       the defendant’s liberty against the governmental interests at stake. Id. at 701-03.

       As to the intrusion into the defendant’s liberty, the Court noted

               (1)      that a neutral and detached magistrate had already
                        “authorized a substantial invasion of the privacy of the
                        person who resided there,” and that the “detention of one
                        of the residents while the premises were searched . . . was
                        surely less intrusive than the search itself,”


               (2)      the type of detention “is not likely to be exploited by the
                        officer or unduly prolonged in order to gain more
                        information, because the information the officers seek
                        normally will be obtained through the search and not
                        through detention,” and


               (3)      because the defendant was detained in his “own residence,
                        it could add only minimally to the public stigma associated
                        with the search itself and would involve neither the
                        inconvenience nor the indignity associated with a
                        compelled visit to the police station.”


       Id. at 701-02.


[20]   As to the governmental interests at stake, the Court identified


               (1)      “the legitimate law enforcement interest in preventing
                        flight in the event that incriminating evidence is found,”



       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016      Page 11 of 24
               (2)      “the interest in minimizing the risk of harm to the
                        officers,” noting that “risk of harm to both the police and
                        the occupants is minimized if the officers routinely
                        exercise unquestioned command of the situation,” and


               (3)      the ability of “the occupants of the premises” to assist in
                        “the orderly completion of the search,” because their self-
                        interest may compel them to do things such as open locked
                        doors, allowing officers to avoid using force and damaging
                        property.


       Id. at 702-03.


[21]   While the Summers Court engaged in a balancing of interests to create an

       exception to the probable cause requirement, it made clear that the exception it

       had created was categorical.

               [I]f police are to have workable rules, the balancing of the
               competing interests inherent in the Terry principle “must in large
               part be done on a categorical basis—not in an ad hoc, case-by-
               case fashion by individual police officers.” The rule we adopt
               today does not depend upon such an ad hoc determination,
               because the officer is not required to evaluate either the quantum
               of proof justifying detention or the extent of the intrusion to be
               imposed by the seizure.


       Id. at 705 n.19 (quoting Dunaway, 442 U.S. at 219-20); see also Bailey, 133 S.Ct.

       at 1037-38 (“The rule in Summers extends farther than some earlier exceptions

       because it does not require law enforcement to have particular suspicion that an

       individual is involved in criminal activity or poses a specific danger to the

       officers”). Thus, if a valid warrant exists to search certain property, officers


       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016      Page 12 of 24
       have “authority to detain the occupants of the premises while a proper search is

       conducted,” without any degree of individualized suspicion. Id. at 705.


[22]   The United States Supreme Court has clarified Summers in subsequent cases.

       Importantly, the Court has given some specific guidance regarding the amount

       of force that may be used to effectuate a detention under Summers. In Muehler v.

       Mena, police officers obtained a warrant to search a residence for evidence of

       gang activity. 544 U.S. 93, 95-96 (2005). When executing the search, the

       officers woke Mena, who was asleep in her bed, handcuffed her at gunpoint,

       moved her into a garage, and detained her there for the length of the search. Id.

       at 96.


[23]   In analyzing this detention under Summers, the Court made clear that

       “[i]nherent in Summers’ authorization to detain an occupant of the place to be

       searched is the authority to use reasonable force to effectuate the detention.”

       Id. at 98-99. Regarding the use of handcuffs specifically, the Court noted


                The imposition of correctly applied handcuffs on Mena, who was
                already being lawfully detained during a search of the house, was
                undoubtedly a separate intrusion in addition to detention in the
                converted garage. The detention was thus more intrusive than
                that which we upheld in Summers.


                                                         ***


                But this was no ordinary search. The governmental interests in
                not only detaining, but using handcuffs, are at their maximum
                when, as here, a warrant authorizes a search for weapons and a
                wanted gang member resides on the premises. In such inherently

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 13 of 24
                dangerous situations, the use of handcuffs minimizes the risk of
                harm to both officers and occupants. Though this safety risk
                inherent in executing a search warrant for weapons was sufficient
                to justify the use of handcuffs, the need to detain multiple
                occupants made the use of handcuffs all the more reasonable.


       Id. at 99-100 (citations omitted). The Court then held that the officers’

       detention of Mena in handcuffs for the length of the search was reasonable and

       did not violate the Fourth Amendment. Id. at 102.


[24]   Summers was further clarified in Bailey v. United States, where the Court made

       clear that occupants may only be detained if they are within the immediate

       vicinity of the premises to be searched. 133 S.Ct. at 1042-43 (holding that the

       search of a residence did not justify the detention of a resident who was not on

       the property at the time of the search). From these holdings, it is clear that

       Summers allows officers who are executing a valid search warrant to use

       reasonable force to detain the occupants of the immediate vicinity of the

       premises to be searched for a reasonable period of time, which in many cases

       could mean the duration of the search.


[25]   Shotts does not argue that the method or the length of his detention was

       unreasonable under Summers. Neither does he argue that it was unreasonable

       for Officer Hemphill to pat him down once he was handcuffed, as at that point

       he had told Officer Hemphill that he was armed.9 Instead, Shotts argues that he




       9
        We note that Summers does not authorize a pat-down or search of detained individuals. However, Terry
       permits “a reasonable search for weapons for the protection of the officer, where he has reason to believe that

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                        Page 14 of 24
       was not an “occupant” of the premises under Summers because he was not a

       resident of the house.


[26]   Shotts is correct to point out that the United States Supreme Court has never

       specified who qualifies as an “occupant.”10 Predictably, courts have reached

       different conclusions, with some holding that “occupant” includes only actual

       residents, others holding that it includes non-residents clearly associated with

       the residence or the criminal activity being investigated, and others holding that

       anyone on the premises counts as an “occupant.” See Cotton v. State, 872 A.2d

       87, 91 (Md. 2005) (discussing these three lines of cases). Shotts is also correct

       that the defendants at issue in Summers, and other United States Supreme Court

       cases applying its reasoning, have always been residents of the premises

       searched.11 Appellant’s Br. p. 16 n.4.


[27]   Shotts argues that the “language and reasoning of Summers strongly suggest the

       term ‘occupant’ should be interpreted narrowly.” Appellant’s Br. p. 16. Shotts

       is correct that several of the factors the Supreme Court found relevant to its



       he is dealing with an armed and dangerous individual . . . .” Terry, 392 U.S. at 27. There is no question that
       Officer Hemphill had such reason in this case, as Shotts told Officer Hemphill that he was armed.
       10
          Although a concurring opinion in Bailey appears to define “occupants” as “persons within the immediate
       vicinity of the premises to be searched,” this definition does not appear in the majority opinion. Bailey, 133
       S.Ct. at 1043 (Scalia J., concurring). The concurrence makes very clear that it believes the rule in Summers
       allows officers to detain, in a reasonable manner, anyone found on the premises. Id. This is because, in the
       concurrence’s view, the “Summers exception is appropriately predicated only on law enforcement’s interest in
       carrying out the search unimpeded by violence or other disruptions.” Id. at 1044 (emphasis original).
       However, this interpretation, while perhaps clearer than the majority’s, garnered the support of only three
       justices.
       11
         The only Indiana case to apply Summers also involved the detention of a resident. Carroll v. State, 822
       N.E.2d 1083, 1083 (Ind. Ct. App. 2005).

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                        Page 15 of 24
       decision in Summers do not apply, or are of diminished relevance, when the

       government seeks to detain non-residents. As for the intrusion into personal

       liberty, it cannot be said that a neutral and detached magistrate had already

       “authorized a substantial invasion of the privacy of the person who” was

       detained. Summers, 452 U.S. at 701. As for the governmental interests, “the

       legitimate law enforcement interest in preventing flight in the event that

       incriminating evidence is found” may not apply with the same force to non-

       residents, especially those with no observed connection to any criminal activity.

       Id. at 702. Furthermore, non-residents are less likely to be able to assist officers

       with the search. Id. at 703.


[28]   However, we believe that requiring the officers in this case to determine

       whether Shotts was a resident before detaining him would diminish the utility

       of Summers’ bright-line rule. The very purpose of a bright-line rule is to keep an

       officer from having to make an ad hoc determination. Summers made clear that

       “the officer is not required to evaluate either the quantum of proof justifying the

       detention or the extent of the intrusion to be imposed by the seizure.” Id. at 705

       n.19. Requiring the officers to develop suspicion that Shotts was a resident

       before detaining him would be to require just such an ad hoc evaluation.

       Accordingly, we agree with the conclusion of the Maryland Court of Appeals

       that




       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 16 of 24
               [i]t follows, from Summers and Buie,12 that, in executing a warrant
               [on premises] where the police are likely to encounter people
               who may well be dangerous, they are entitled, for their own
               safety and that of other persons, to take command of the
               situation and, except for persons who clearly are unconnected
               with any criminal activity and who clearly present no potential
               danger, essentially immobilize everyone until, acting with
               reasonable expedition, they know what they are confronting. It
               really cannot be otherwise. The police do not know who may be
               at the scene when they arrive. The people they find there, in or
               on the property to be searched, are not wearing identifying
               labels . . . .


       Cotton, 872 A.2d at 92-93.


[29]   Though Summers provided a number of justifications for its rule, it recognized

       “the interest in minimizing the risk of harm to the officers” as “sometimes of

       greater importance.” Summers, 452 U.S. at 702.


               When law enforcement officers execute a search warrant, safety
               considerations require that they secure the premises, which may
               include detaining current occupants. By taking ‘unquestioned
               command of the situation,’ the officers can search without fear
               that occupants, who are on the premises and able to observe the
               course of the search, will become disruptive, dangerous, or
               otherwise frustrate the search.




       12
          Maryland v. Buie, 494 U.S. 325 (1990) (holding that the Fourth Amendment permits a limited protective
       sweep of a residence in conjunction with the in-home execution of an arrest warrant under appropriate
       circumstances).

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                     Page 17 of 24
       Bailey, 133 S.Ct. at 1038 (quoting Summers, 452 U.S. at 703). Thus, for

       purposes of an analysis under Summers, we read the word “occupant” to mean

       anyone who is in the immediate vicinity of the premises to be searched at the

       time the search is executed. In this case, Shotts became an occupant when he

       entered the house and his detention was therefore justified under Summers.13 As

       no Fourth Amendment violation occurred, the trial court did not err in denying

       Shotts’s motion to suppress the handgun or in allowing the handgun into

       evidence.


[30]   As a final note, we acknowledge that it seems as though Shotts should not have

       been allowed to enter the house in the first place. Though the State frequently

       refers to the scene as “secured,” the record does not indicate what steps law

       enforcement generally takes to secure search scenes or whether the officers here

       took any steps to secure this particular scene. Appellee’s Br. p. 18. The U.S.

       Supreme Court has addressed the issue of individuals trying to enter search

       scenes and noted that “[o]fficers can and do mitigate that risk . . . by taking

       routine precautions, for instance by erecting barricades or posting someone on

       the perimeter or at the door.” Bailey, 133 S.Ct. at 1039. We would hope that

       officers usually take routine precautions such as these and that this case is an

       aberration.




       13
         Here, we do not deal with a situation in which the officers either ordered or invited Shotts to enter the
       house. If such had been the case, we would have reached a different result. The purposes behind the
       Summers rule would not be served in such an instance, as the rule is not intended simply to provide officers
       with an opportunity to detain individuals.

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016                        Page 18 of 24
                                         II. Sentencing Issues
[31]   Shotts raises several issues related to his sentence. Initially, we must address

       the fact that the trial court sentenced Shotts to 180 days, to run concurrently

       with his other sentence, for visiting a common nuisance. Both Shotts and the

       State agree that this was error. Although the State originally charged Shotts

       with visiting a common nuisance, it moved to dismiss the charge at trial and the

       trial court granted the motion. Tr. p. 4. Consequently, Shotts was neither tried

       nor convicted of the charge and we must remand to the trial court so that it may

       vacate Shotts’s conviction and sentence for visiting a common nuisance.


[32]   As to Shotts’s conviction for being a violent felon in possession of a firearm, the

       trial court sentenced him to eighteen years, with twelve years executed at the

       Department of Correction, two years executed at Community Corrections, and

       four years suspended. This sentence fell within the statutory range—“[a]

       person who commits a Class B felony . . . shall be imprisoned for a fixed term

       of between six (6) and twenty (20) years, with the advisory sentence being ten

       (10) years.” Ind. Code § 35-50-2-5. However, Shotts argues that the trial court

       erred by relying on improper factors to enhance his sentence. He also argues

       that his sentence is inappropriate in light of the nature of the offense and his

       character.


                                      A. Aggravating Factors
[33]   In general, sentencing determinations lie within the discretion of the trial court.

       Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). This includes a trial court’s

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 19 of 24
       decision to increase or decrease a presumptive sentence because of aggravating

       or mitigating circumstances. Id. However, a trial court errs if it considers

       aggravating or mitigating circumstances that are improper as a matter of law.

       Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on other grounds

       on reh’g, 875 N.E.2d 218 (Ind. 2007).


[34]   Shotts believes that the trial court erred by considering two improper

       aggravating circumstances—(1) the fact that his pre-sentence investigation (PSI)

       report listed him as “very high risk” to reoffend according to the Indiana Risk

       Assessment System (IRAS), and (2) the fact that he was convicted of robbery in

       2009, as this offense served as the basis for his serious violent felon in

       possession of a firearm conviction.


[35]   As to his IRAS score, Shotts is correct to note that “the offender risk assessment

       scores do not in themselves constitute, and cannot serve as, an aggravating or

       mitigating circumstance.” J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010). This is

       because such assessments are prepared by probation officers and other

       administrators relying on data and evaluations that “are not necessarily

       congruent with a sentencing judge’s findings and conclusions regarding relevant

       sentencing factors.” Malenchik v. State, 928 N.E.2d 564, 573 (Ind. 2010).

       Accordingly, they are neither “intended nor recommended to substitute for the

       judicial function of determining the length of sentence appropriate for each

       offender.” Id. (emphasis added). However,


               such evidence-based assessment instruments can be significant
               sources of valuable information for judicial consideration in
       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016    Page 20 of 24
               deciding whether to suspend all or part of a sentence, how to
               design a probation program for the offender, whether to assign an
               offender to alternative treatment facilities or programs, and other
               such corollary sentencing matters.


       Id.


[36]   Shotts argues that the trial court improperly considered his “very high risk” to

       reoffend assessment as an aggravating factor affecting the length of his sentence.

       He points out that the trial court listed “crim[inal] history, very high risk, on

       parole at time of offense” as aggravating factors in its written sentencing order.

       Appellant’s App. p. 17. Shotts also notes that the trial court emphasized the

       score in its oral sentencing statement. Tr. p. 67.


[37]   However, there is no indication from the trial court’s use of the words “very

       high risk” in its written sentencing order that it meant to reference Shotts’s

       IRAS score. Given Shotts’s lengthy criminal history, which will be discussed

       later, the trial court had evidence before it from which it could reach its own,

       independent conclusion that Shotts was at a very high risk to reoffend.

       Accordingly, there is no reason to believe the trial court abdicated its judicial

       function in this case.


[38]   As to the trial court’s mention of Shotts’s IRAS score in its oral sentencing

       statement, a review of the record makes clear that the trial court was

       considering the score in light of what type, rather than length, of sentence to

       impose. The trial court considered different rationales for placing individuals in

       the Department of Correction and concluded, with reference to Shotts’s IRAS

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 21 of 24
       score, that this was an appropriate way for him to serve his sentence. Tr. p. 67.

       As noted earlier, there is nothing improper in a trial court using an IRAS score

       to determine how an individual should serve his sentence.


[39]   Shotts next argues that the trial court erred by considering his 2009 robbery

       conviction as an aggravating factor, as this conviction was an element of the

       current charge. Our Supreme Court has held that, “[w]here a trial court’s

       reason for imposing a sentence greater than the advisory sentence includes

       material elements of the offense, absent something unique about the

       circumstances that would justify deviating from the advisory sentence, that

       reason is ‘improper as a matter of law.’” Gomillia v. State, 13 N.E.3d 846, 852-53

       (Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491).


[40]   Shotts acknowledges that, in this case, “the trial court did not state specifically

       that it considered the robbery conviction,” but he argues that “there are strong

       indications that the robbery conviction played a role in the court’s decision.”

       Appellant’s Br. p. 40. We see no such indications. Shotts has a substantial

       criminal history aside from his 2009 robbery conviction that the trial court

       could have relied upon to enhance his sentence. There is simply no reason to

       believe that the trial court erred in the way that Shotts hypothesizes.

       Accordingly, we find no error in the sentencing order.


                               B. Appropriateness of Sentence
[41]   Finally, Shotts argues that his sentence is inappropriate and asks us to revise it

       to the advisory term of ten years. Under Indiana Appellate Rule 7(B), “[t]he

       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 22 of 24
       Court 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.” The burden

       is on the defendant to persuade us that his sentence is inappropriate. Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[42]   As to the nature of the offense, Shotts argues that it “was no more serious than

       any other conviction for unlawful possession of a firearm by a serious violent

       felon.” Appellant’s Br. p. 42. He also notes that the trial court did not find this

       case to be the “most egregious.” Tr. p. 67. As to his character, Shotts notes

       that he is very close with his family and that his brother is willing to employ

       him once he is released. Appellant’s Br. p. 42-43. He points out that he has

       completed his GED and has received a building trades vocational certificate

       from Ivy Tech. Id. at 43. He acknowledges his criminal history but notes that,

       at thirty years old, he is still relatively young. He points out that he was honest

       with the trial court about his substance abuse problems and that he is willing to

       participate in treatment. Id.


[43]   We acknowledge that there is nothing about the nature of Shotts’s offense that

       would warrant enhancing his sentence. All that the State was required to show

       was that Shotts was previously convicted of a felony listed in the statute and

       that he then knowingly or intentionally possessed a firearm. Ind. Code § 35-47-

       4-5. It is difficult to see how one could commit this crime, and this crime alone,

       in a particularly heinous manner.



       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 23 of 24
[44]   However, we cannot say that Shotts’s sentence is inappropriate in light of his

       character. As a minor, Shotts’s was adjudicated a delinquent child for truancy

       and possession of marijuana. Shotts has continued his criminal activity into

       adulthood, amassing convictions for escape, criminal recklessness, possession

       of marijuana, failure to stop at an accident, public intoxication, false reporting,

       auto theft, and carjacking. Appellee’s Br. p. 39. He has previously had his

       probation revoked after consistent failure to report or comply with the

       conditions, and he was on parole at the time of this offense. Simply put, this

       evidence indicates a complete lack of respect for the law. The trial court could

       conclude that Shotts would continue his criminal activity despite his

       employment or any help he may receive from his family. We cannot say that

       the enhanced sentence imposed by the trial court was inappropriate under these

       circumstances.


[45]   The judgment of the trial court is affirmed and remanded with instructions to

       vacate Shotts’s conviction and sentence for visiting a common nuisance.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1509-CR-1347 | April 27, 2016   Page 24 of 24
