      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                     Feb 27 2015, 9:18 am
      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
      Steven P. Teverbaugh                                      Gregory F. Zoeller
      Greensburg, Indiana                                       Attorney General of Indiana
                                                                Karl M. Scharnberg
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Carl Louis Moore, Jr.                                    February 27, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               16A01-1408-CR-353
              v.                                               Appeal from the Decatur Circuit
                                                               Court

      State of Indiana,                                        The Honorable Timothy B. Day,
                                                               Judge
      Appellee-Plaintiff
                                                               Cause No. 16C01-1304-FC-228




      Mathias, Judge.

[1]   Carl Louis Moore, Jr. (“Moore”) pleaded guilty in Decatur Circuit Court to

      Class C felony robbery and Class C felony attempted robbery. After a

      sentencing hearing, the trial court sentenced Moore to two consecutive six-year

      sentences and ordered his aggregate twelve-year sentence to be served


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      consecutive to Moore’s sentences for other crimes committed in other counties.

      On appeal, Moore claims that the trial court abused its discretion in sentencing

      him to an aggregate twelve-year sentence.


[2]   We affirm.


                                 Facts and Procedural History

[3]   On March 13, 2013, Moore entered the New Point Food Mart in Greensburg,

      Indiana and demanded money from the clerk, Chintankumar Patel (“Patel”).

      Moore made Patel believe that he was armed with a knife. Patel gave Moore a

      bag containing $2,140, and Moore fled from the store.


[4]   On April 5, 2013, while Patel was working at the store, Moore again entered

      the store and demanded money from Patel. Because he had already placed the

      money in the store’s safe, Patel ran away from the counter. Moore tried to open

      the register, but he was unable to do so. He then fled the scene. When the

      police investigated, Moore was identified as a suspect of the crime. He later

      admitted to committing the two crimes. Patel suffered significant psychological

      trauma from these events.


[5]   As a result, the State charged Moore with Class C felony robbery and Class C

      felony attempted robbery. On June 17, 2014, Moore pleaded guilty to both

      charges, but sentencing was left “open” to the discretion of the trial court. On

      July 29, 2014, the trial court heard evidence regarding sentencing. The trial

      court sentenced Moore to a consecutive six-year term for each count, and

      ordered the sentences in this case to be served consecutive to his criminal
      Court of Appeals of Indiana | Memorandum Decision 16A01-1408-CR-353 | February 27, 2015   Page 2 of 6
      sentences imposed for other crimes committed in other counties. Moore now

      appeals.


                                     Discussion and Decision

[6]   In his appellate brief, Moore makes an array of arguments that he should serve

      his sentences concurrently. Among these arguments, we find four coherent

      issues. Each issue will be addressed individually.


                                         Abuse of Discretion

[7]   Even though Moore does not explicitly challenge his sentencing as an abuse of

      discretion, his argument is, in essence, a claim that the trial court abused its

      discretion its consideration of the aggravating and mitigating circumstances.

      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). The trial court abuses its discretion if its 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. A trial court abuses its discretion by: (1) failing to enter a

      sentencing statement, (2) finding aggravating or mitigating factors unsupported

      by the record, (3) omitting mitigating factors clearly supported by the record

      and advanced for consideration, or (4) giving reasons that are improper as a

      matter of law. Id. at 490–91.


[8]   In his brief, Moore argues that the trial court failed to consider the following

      mitigating factors: his drug addiction, his age, and his childhood in an

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       uncontrolled environment. Although he testified concerning these facts at the

       sentencing hearing, the only mitigating factor specifically raised as such by

       Moore was that he pleaded guilty. Moore specifically raised no other factors as

       mitigators at the sentencing hearing. “The trial court does not abuse its

       discretion in failing to consider a mitigating factor that was not raised at

       sentencing.” Id. at 492. The trial court clearly considered the only mitigator

       Moore specifically raised at the sentencing hearing, his guilty plea.


[9]    Even had Moore properly raised other factors, the trial court was not obligated

       to find them mitigating. “[T]he trial court is not obligated to explain why it has

       found that the factor does not exist.” Id. at 493. Nevertheless, the trial court

       explicitly rejected Moore’s drug addiction as a mitigating factor. Tr. p. 24.

       Additionally, the relative weight given to a factor is not available for appellate

       review. Anglemyer, 868 N.E.2d at 493–94.


                                         Improper Aggravator

[10]   Moore also argues that the trial court improperly found the traumatization of

       the clerk by Moore to be an aggravating factor. Moore argues that such trauma

       is improper because it is an element of the offense. See Gomilia v. State, 13

       N.E.3d 846, 852 (Ind. 2014).

[11]   Generally, a trial court may not impose a sentence greater than the advisory

       sentence for reasons that are included in the material elements of the offense.

       Id. at 852–53. However, the reason is proper if unique circumstances exist that

       would justify deviating from the advisory sentence. Id.

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[12]   The trial court characterized Patel’s trauma as the “nature of the crime,” and

       the court discussed at length the unique troubles and difficulties that Patel faced

       and continues to face because of Moore’s actions. Tr. pp. 23-24. We conclude

       that this was a unique circumstance and that the trial court properly considered

       Patel’s trauma as an aggravating circumstance.


                                   Appropriateness of Sentence

[13]   Pursuant to Appellate Rule 7(b), we may revise a sentence otherwise authorized

       by statute if, “after due consideration of the trial court’s decision, [we] find[]

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

       character of the offender.” Although Moore cites to this language in his brief,

       he does not raise any specific argument regarding the nature of the offense and

       the character of the offender. It is Moore’s burden to persuade us that his

       sentence is inappropriate in the context of the nature of the offense and

       character of the offender standard of review. See Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006). Moore failed to compare his offense and his character

       to this standard, and we therefore consider this claim waived. See Perry v. State,

       921 N.E.2d 525, 528 (Ind. Ct. App. 2010).


                                  Constitutionality of Sentence

[14]   Finally, Moore argues that, at sentencing, the trial court violated Article I,

       section 18 of the Indiana Constitution, which states that the penal code is

       founded on “principles of reformation, and not of vindictive justice.” Ind.

       Const. art. I, § 18. Moore refers to the trial court’s statement that Moore is


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       “going to pay for [his crimes]” and that “there is a punitive aspect” to the

       sentence. Tr. p. 24. On these two facts alone, Moore alleges a constitutional

       violation.


[15]   However, the trial court also stated, “I hope it rehabilitates you. I hope you get

       your GED while you’re there.” Tr. p. 24. The trial court’s imposition of an

       aggregate twelve-year sentence was given with the stated purpose of assisting

       Moore with his rehabilitation. We conclude that the trial court’s decision is

       consistent with the purposes set forth in the Indiana Constitution.


[16]   The trial court did not abuse its discretion in sentencing Moore.


[17]   Affirmed.

       Najam, J., and Bradford, J., concur.




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