                                                                                     FILED
                                                                               Sep 07 2018, 9:53 am

                                                                                     CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Donald E.C. Leicht                                         Curtis T. Hill, Jr.
      Kokomo, Indiana                                            Attorney General of Indiana

                                                                 Andrew Kobe
                                                                 Michael Gene Worden
                                                                 Deputy Attorneys General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Charles A. Moon, Jr.,                                      September 7, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-879
              v.                                                 Appeal from the Howard Superior
                                                                 Court
      State of Indiana,                                          The Honorable William C.
      Appellee-Plaintiff.                                        Menges, Jr., Judge
                                                                 Trial Court Cause Nos.
                                                                 34D01-1707-F4-797
                                                                 34D01-1707-F4-860



      Najam, Judge.


                                        Statement of the Case
[1]   In this consolidated appeal, Charles A. Moon, Jr. appeals his sentence

      following his guilty plea to dealing in cocaine, as a Level 4 felony, and resisting


      Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018                              Page 1 of 14
      law enforcement, as a Level 6 felony. He raises two issues for our review,

      which we revise and restate as follows:


                1.       Whether the trial court erred when it calculated his credit
                         time.

                2.       Whether his sentence is inappropriate in light of the nature
                         of the offenses and his character.


[2]   We affirm.


                                    Facts and Procedural History
[3]   Between April 25 and May 10, 2017, Moon sold cocaine to a confidential

      informant for the Kokomo Police Department (“KPD”) on four separate

      occasions.1 On July 7, the State charged Moon with four counts of dealing in

      cocaine, all as Level 4 felonies, in Cause Number 34D01-1707-F4-797 (“F4-

      797”). On that same date, the trial court issued a warrant for Moon’s arrest.


[4]   On July 20, KPD officers observed Moon riding a moped. The officers were

      aware that there was a warrant out for Moon’s arrest, and they attempted to

      stop him. However, Moon did not stop for two blocks. After the officers

      stopped Moon, they discovered a handgun in the waistband of his pants. The

      officers arrested Moon. The next day, the State charged Moon with one count

      of unlawful possession of a firearm by a serious violent felon, as a Level 4




      1
          Moon sold the confidential informant cocaine in amounts that ranged from 2.1 grams to 4.6 grams.


      Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018                            Page 2 of 14
      felony; one count of resisting law enforcement, as a Level 6 felony; and one

      count of carrying a handgun without a license, as a Class A misdemeanor, in

      Cause Number 34D01-1707-F4-860 (“F4-860”).


[5]   On February 23, 2018, Moon and the State filed a plea agreement with the

      court that encompassed both cause numbers. Pursuant to that plea agreement,

      Moon agreed to plead guilty to one count of dealing in cocaine, as a Level 4

      felony, in F4-797 and to resisting law enforcement, as a Level 6 felony, in F4-

      860. The agreement provided that Moon’s sentence in F4-797 would be left to

      the discretion of the trial court; however, the executed portion of his sentence

      would not exceed ten years. The plea also provided that Moon would be

      sentenced to a term of two and one-half years, all suspended to supervised

      probation, in F4-860. In exchange, the State agreed to dismiss the remaining

      counts in both causes.


[6]   On March 22, the trial court held a hearing on Moon’s guilty plea. During the

      hearing, Moon stipulated to only the facts contained within the probable cause

      affidavit that were sufficient enough to establish a factual basis for his guilty

      plea. The court accepted Moon’s plea and entered judgment of conviction

      accordingly. Pursuant to the terms of the plea agreement, the trial court

      sentenced Moon to two and one-half years all suspended to supervised

      probation in F4-860. As a specific condition of his probation, the trial court

      ordered Moon to complete the Howard County Drug and Alcohol Program.

      The court determined that Moon “has no jail time credit served while awaiting

      trial and disposition in this matter.” Appellant’s App. Vol. II at 56. The court

      Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018        Page 3 of 14
      then heard evidence concerning Moon’s sentence in F4-797. During that

      portion of the hearing, Moon admitted that had used illegal substances every

      day since he was thirteen years old. Based on his history of substance-abuse

      issues, Moon requested that the trial court recommend him for purposeful

      incarceration.


[7]   At the conclusion of the hearing, the trial court found Moon’s criminal history

      to be a significant aggravating factor. The trial court identified Moon’s guilty

      plea to be a mitigating factor but gave it minimal weight because of the

      substantial benefit Moon received from the plea. Accordingly, the trial court

      sentenced Moon to twelve years, with ten years executed and two years

      suspended to supervised probation in F4-797. Again, as a specific condition of

      probation, the trial court ordered Moon to complete the Howard County Drug

      and Alcohol Program. The court gave Moon credit for “245 actual days or 327

      credit days served while awaiting disposition in this matter.” Id. at 64. The

      trial court ordered the sentences in F4-797 and F4-860 to run consecutively.

      After the trial court announced its sentence, Moon asked: “Is the court not

      considering placement in the purposeful incarceration as therapeutic

      community?” Tr. Vol. II at 24. In response, the court stated that, “[g]iven the

      firearms charge,” it did not think purposeful incarceration was “appropriate.”

      Id. This appeal ensued.




      Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018       Page 4 of 14
                                      Discussion and Decision
                                           Issue One: Credit Time

[8]   Moon first contends that the trial court erred when it calculated his credit time.

      As our Supreme Court has noted, there are two types of credit that must be

      calculated: “(1) the credit toward the sentence a prisoner receives for time

      actually served, and (2) the additional credit a prisoner receives for good

      behavior and educational attainment.” Purcell v. State, 721 N.E.2d 220, 222

      (Ind. 1999). Credit time is a matter of statutory right and trial courts do not

      have discretion in awarding or denying such credit. See Harding v. State, 27

      N.E.3d 330, 331-32 (Ind. Ct. App. 2015). Here, Moon asserts that the trial

      court erred when it calculated his credit time for the time he actually served and

      when it calculated his good time credit. We address each argument in turn.


                                              Actual Time Served

[9]   Moon contends that the trial court erred when it calculated the number of days

      he spent in confinement prior to sentencing. Specifically, Moon asserts that he

      spent 246 days in jail, while the trial court only awarded him credit for 245

      days. To support his assertion, Moon states that he “was in jail on July 20,

      2017[,] . . . and on March 22, 2018 (bookends), which totals 246 actual days,

      not 245 actual days.” Appellant’s Br. at 8. Moon does not explain how he

      calculated the number of days he spent in jail. But it appears as though Moon

      included the date of sentencing in his calculation.




      Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018      Page 5 of 14
[10]   However, Indiana Code Section 35-38-3-2(d) (2018) states that the “term of

       imprisonment begins on the date sentence is imposed[.]” Accordingly, the date

       the trial court sentenced Moon was the first day of his sentence and, therefore,

       cannot be included when counting the number of days he actually served prior

       to sentencing. As such, Moon served 245 days in jail from the date of his arrest

       up to, but not including, the date of his sentencing. The trial court did not err

       when it awarded Moon credit for 245 days actually served.


                                                Good Time Credit

[11]   Moon next asserts that the trial court erred when it calculated his good time

       credit. Pursuant to Indiana Code Section 35-50-6-4(a)(2), a person who is

       imprisoned awaiting trial or sentencing for a Level 6 felony or misdemeanor is

       initially assigned to Class A. A person assigned to Class A earns one day of

       good time credit for every day the person is imprisoned awaiting trial or

       sentencing. Ind. Code § 35-50-6-3.1(b). However, a person who is imprisoned

       awaiting trial or sentencing for a crime other than a Level 6 felony or

       misdemeanor is initially assigned to Class B. I.C. § 35-50-6-4(b)(2). A person

       assigned to Class B earns one day of good time credit for every three days the

       person is confined awaiting trial or sentencing. I.C. § 35-50-6-3.1(c). However,

       IC 35-50-6-4(h) adds:


               A person imprisoned awaiting trial is initially assigned to a credit
               class based on the most serious offense with which the person is
               charged. If all the offenses of which a person is convicted have a
               higher credit time class than the most serious offense with which
               the person is charged, the person earns credit time for the time

       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018       Page 6 of 14
                imprisoned awaiting trial at the credit time class of the most
                serious offense of which the person was convicted.


       Thus, the rate at which a defendant earns good time credit while awaiting trial

       or sentencing is initially determined by the level of the charge against him, but,

       if the defendant is actually convicted of a lower-level offense than that charged,

       the defendant’s credit time class is to be based on the conviction, not the charge.


[12]   Here, the trial court correctly determined that Moon had spent 245 days in jail

       while awaiting his guilty plea hearing. The court further correctly determined,

       based on Moon’s conviction for a Level 4 felony and his corresponding

       assignment to credit Class B, Moon’s 82 days of good time credit.


[13]   But Moon contends that the trial court erred when it “arbitrarily” chose to

       calculate his credit time based on the Level 4 felony in F4-797 instead of the

       Level 6 felony in F4-860. Moon continues that, because of that choice, the trial

       court “arbitrarily denied Moon credit time of 164 days.” Appellant’s Br. at 9.

       In essence, Moon asserts that the trial court should have chosen to calculate his

       good time credit based on his conviction for the Level 6 felony instead of the

       Level 4 felony.


[14]   However, Moon does not cite any authority, and we find none, to support his

       contention.2 Indiana Code Section 35-50-6-4(h) does not state that a trial court




       2
         Moon simply states, without any analysis or discussion, that the trial court’s calculation of credit time
       based on the Level 4 felony instead of the Level 6 felony is “wrong under James v. State, 872 N.E.2d 669, 671

       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018                             Page 7 of 14
       may choose which offense it uses as a basis for calculating credit time. Instead,

       the statute explicitly states that a person earns credit time pursuant to the credit

       class to which he is assigned, which, in turn, is based on the most serious

       offense with which the person is convicted. Here, the most serious offense with

       which Moon was charged in both cause numbers was a Level 4 felony.

       Moreover, Moon was arrested in both causes on the same day, he entered one

       plea agreement for both causes, and the trial court accepted that plea agreement

       and sentenced him in both causes at one hearing. Following that hearing,

       Moon’s highest level of conviction was his Level 4 felony. We conclude that

       the trial court did not err when it calculated Moon’s good time credit based on

       that offense.


                                 Issue Two: Inappropriateness of Sentence

[15]   Moon next asserts that his sentence is inappropriate in light of the nature of the

       offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he

       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

       Indiana Supreme Court has recently explained that:


                The principal role of appellate review should be to attempt to
                leaven the outliers . . . but not achieve a perceived “correct”
                result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.



       (Ind. Ct. App. 2007) and McAllister v. State, 913 N.E.2d 778, 782 (Ind. Ct. App. 2009).” Appellant’s Br. at 9.
       But neither of those cases are relevant to the issue or otherwise support Moon’s argument.

       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018                              Page 8 of 14
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[16]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate 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.” Id. at 1224.

       Deference to the trial court “prevail[s] 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).


[17]   Moon does not challenge the length of his sentence. Instead, he asserts that his

       sentence is inappropriate because the trial court declined to recommend him for

       purposeful incarceration. The place where a sentence is to be served is subject

       to review under Rule 7(B). See Biddinger v. State, 868 N.E.2d 407, 414 (Ind.

       2007). However, this court has recognized that it is “quite difficult” for a

       defendant to prevail on a claim that his placement is inappropriate. Fonner v.

       State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). “As a practical matter, trial


       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018      Page 9 of 14
       courts know the feasibility of alternative placements in particular counties or

       communities.” Id. That is, “a trial court is aware of the availability, costs, and

       entrance requirements of community corrections placements in a specific

       locale.” Id. at 343-44. Moreover, because our appellate review is focused not

       on whether another sentence might be more appropriate, but on whether the

       sentence imposed is inappropriate, a “defendant challenging the placement of a

       sentence must convince us that the given placement is itself inappropriate.” Id.

       at 344.


[18]   Here, the record demonstrates that Moon asked the trial court to recommend

       him for purposeful incarceration, but the trial court did not do so. Instead, the

       trial court ordered Moon to complete the Howard County Drug and Alcohol

       Program as a condition of his probation in both cause numbers. Accordingly,

       the trial court still offered Moon an opportunity to address his substance-abuse

       issues when he completes the executed portion of his sentence.


[19]   Still, Moon contends that, because he is a chemically addicted offender with a

       “long history of substance abuse” and because the circumstances of the crimes

       were not “more heinous” than the elements required to prove the charges, we

       should remand this case and compel the trial court to modify his sentence and

       recommend him for purposeful incarceration. Appellant’s Br. at 12. But we are

       not convinced that the trial court’s imposition of an executed sentence without

       a recommendation for purposeful incarceration is inappropriate.




       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018    Page 10 of 14
[20]   This court has previously stated that Rule 7(B) plainly requires “‘the appellant

       to demonstrate that his sentence is inappropriate in light of both the nature of

       the offenses and his character.’” Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct.

       App. 2017) (quoting Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.

       2008)) (emphasis original to Williams). And while we agree that his offenses

       were not any more serious than what was needed to prove the charges, Moon

       has not demonstrated that his sentence is inappropriate in light of his character.


[21]   At the time of sentencing, Moon already had a relatively substantial criminal

       history. As a juvenile, Moon was convicted in Illinois of felony delivery of a

       controlled substance. As a result of that conviction, Moon spent 36 months on

       probation. And, as an adult, Moon’s criminal history includes one felony

       conviction in Illinois for unlawful possession of a firearm by a felon, for which

       Moon spent three years incarcerated, and one felony conviction in Indiana for

       unlawful delivery of a controlled substance, for which Moon spent seven years

       in the Indiana Department of Correction. But despite having served a

       substantial amount of time in confinement in both Indiana and Illinois, Moon

       again decided to engage in unlawful behavior when he sold cocaine to a

       confidential informant and when he resisted law enforcement. Moon’s refusal

       to alter his criminal behavior after having been previously incarcerated reflects

       poorly on his character.


[22]   Here, the trial court has provided Moon with an opportunity to address his

       substance-abuse issues after he completes the executed portion of his sentence.

       And Moon has not provided compelling evidence depicting his character in a

       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018     Page 11 of 14
       positive light. As such, Moon has not met his burden of convincing us that his

       placement in the Department of Correction without a recommendation for

       purposeful incarceration is inappropriate. 3


[23]   In sum, the trial court did not err when it calculated Moon’s credit time, and

       Moon’s sentence is not inappropriate in light of the nature of the offenses and

       his character. We affirm the trial court’s order.


[24]   Affirmed.


       Pyle, J., concurs.


       Crone, J., concurs in part and concurs in result in part with separate opinion.




       3
          Moon also asserts on appeal that the trial court abused its discretion when it considered the firearms charge
       when it declined to recommend him for purposeful incarceration. Moon did not plead guilty to that charge,
       and he did not admit to the facts in the probable cause affidavit that would support that charge. Thus, the
       trial court considered facts not in the record when it declined to recommend Moon for purposeful
       incarceration as a result of the firearms charge. We assume for the sake of argument that this was an error.
       However, the location where a sentence is to be served is not subject to review for abuse of discretion. See
       King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rather, “[t]he location where a sentence is to be
       served is an appropriate focus of our review and revise authority.” Id. And, as discussed above, Moon has
       not convinced us that his sentence is inappropriate in light of the nature of the offenses to which he did plead
       guilty and his character. Thus, any error the trial court may have committed when it considered the firearms
       charge was harmless. See Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007)

       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018                              Page 12 of 14
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Charles A. Moon, Jr.,                                      Court of Appeals Case No.
                                                                  18A-CR-879
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Crone, Judge, concurring in part and concurring in result in part.


[25]   I agree with my colleagues that the trial court did not err in calculating Moon’s

       credit time. I also agree that Moon has failed to meet his burden of establishing

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

       character under Indiana Appellate Rule 7(B).


[26]   But I respectfully disagree with my colleagues’ statement that Rule 7(B)

       “plainly requires ‘the appellant to demonstrate that his sentence is inappropriate

       in light of both the nature of the offenses and his character.’” Slip op. at 11

       (quoting Sanders, 71 N.E.3d at 843, and Williams, 891 N.E.2d at 633). In




       Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018                   Page 13 of 14
Connor v. State, 58 N.E.3d 215 (Ind. Ct. App. 2016), Judge Robb and I took the

position that


        although the rule does state that we may revise a sentence we
        find to be inappropriate “in light of the nature of the offense and
        the character of the offender,” we view that as a statement that
        we as the reviewing court must consider both of those prongs in
        our assessment, and not as a requirement that the defendant must
        necessarily prove each of those prongs render his sentence
        inappropriate.


Id. at 219 (footnote omitted) (emphases in Connor) (quoting Ind. Appellate Rule

7(B)). This is in line with our supreme court’s statement in Cardwell that we

should review sentences in their entirety and not overlook the forest by focusing

on the trees. 895 N.E.2d at 1225. Judge Najam expressed his disagreement

with this viewpoint in a separate opinion concurring in the result. Perhaps

someday our supreme court will weigh in on this issue and settle the dispute

once and for all.




Court of Appeals of Indiana | Opinion 18A-CR-879 | September 7, 2018     Page 14 of 14
