MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Jan 31 2020, 6:18 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Zachary R. Griffin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert L. Moore,                                         January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2870
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan N.
Appellee-Plaintiff,                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-1605-F4-26



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020              Page 1 of 13
                                Case Summary and Issue
[1]   Following a bench trial, Robert Moore was convicted of dealing in a narcotic

      drug, a Level 5 felony, and the trial court sentenced him to serve six years in the

      Indiana Department of Correction (“DOC”). Moore appeals his sentence,

      presenting the sole issue of whether his six-year sentence is inappropriate in

      light of his character and the nature of the offense. Concluding Moore’s

      sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   The underlying facts are as follows:


              On May 13, 2016, Trevor Adkins (“Adkins”) was arrested on an
              outstanding warrant for possession of heroin in Dearborn
              County, Indiana. Adkins volunteered to contact drug dealers he
              had purchased from in the past to assist police officers who
              conduct controlled drug buys.


              Later that same day, Adkins voluntarily contacted a heroin
              dealer who was later identified as Kevin Sanders (“Sanders”).
              The Greendale Police Department orchestrated the logistics of
              the controlled buy, and Adkins relayed that information to
              Sanders. Adkins and Sanders agreed to meet at Party at Trav’s
              Fireworks (“Trav’s”).


              Officer Dustin Hatfield (“Officer Hatfield”) drove Adkins to
              Trav’s in his personal vehicle, a blue Ford F–150 (“Ford”). . . .


              Upon arriving at Trav’s, the officer transporting Adkins
              requested that the meet-up location be changed due to officer

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 2 of 13
        safety because it was dark, the lighting [at Trav’s] was poor[.]
        Adkins asked Sanders to meet him at Ameristop’s parking lot,
        which shared a parking lot with Trav’s but had better lighting.
        Sanders called A[d]kins on the way to Ameristop and informed
        Adkins that he was lost and needed to stop and get gas. Adkins
        agreed to meet Sanders at a Shell Gas Station which was
        approximately two-tenths of a mile from the Ameristop. Sanders
        told Adkins to look for a white Camaro.


        Officer Hatfield observed only one white [Camaro] in the parking
        lot[,] and he parked his truck directly in front of the Camaro. He
        was able to see the driver and passenger in the Camaro, and
        Adkins identified the passenger as Sanders. Before Adkins exited
        the Ford, he and Officer Hatfield watched Sanders climb into the
        back seat of the Camaro. Adkins then approached the Camaro,
        entered the vehicle, and sat in the front passenger seat. Officer
        Hatfield had a clear view of Adkins and the driver, who was later
        identified as Moore. The officer saw Moore give Adkins an
        unidentifiable object and watched Adkins hand Moore the $200
        buy money. As they had planned, Adkins signaled to Officer
        Hatfield when the transaction was complete. Thereafter, Adkins
        gave Officer Hatfield a clear plastic bag containing a white
        substance that was later identified as fentanyl.


        Three officers approached the Camaro after Adkins purchased
        the fentanyl from Moore. As Officer Hatfield removed Moore
        from the driver’s seat, the money Adkins gave to Moore fell from
        his lap. Sanders and Moore were immediately arrested, and the
        officers searched the vehicle. During the vehicle search, the
        officers found a rock-like substance wrapped in brown paper in
        the backseat.


        The two substances were submitted to a testing lab, and both
        were identified as fentanyl. . . . On May 16, 2016, the State
        charged Moore with Level 4 felony conspiracy to commit dealing
        in a narcotic weighing at least one gram, and Level 5 felony
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 3 of 13
              dealing in a narcotic drug. The State also alleged that Moore is
              an habitual offender.


      Moore v. State, No. 15A01-1711-CR-2767, 2018 WL 3192898, at *1-2 (Ind. Ct.

      App. June 29, 2018) (quotations and record citations omitted).


[3]   Following a bench trial, Moore was found guilty as charged. A pre-sentence

      investigation report was prepared and filed with the trial court. On October 25,

      2017, the trial court held a sentencing hearing. Moore’s girlfriend testified that

      Moore was involved in a car accident in 2014. Days after the accident, Moore

      suffered a massive heart attack and underwent heart surgery and has endured

      numerous bypasses since. She testified that he has suffered from complications

      and has ongoing vascular and cardiac issues requiring frequent medical care.


[4]   In imposing a sentence, the trial court detailed the nature of Moore’s offense: it

      was a buy for what the buyer believed to be heroin but was actually fentanyl, an

      extremely dangerous drug; the evidence demonstrated this was “not a user

      selling a little, to go use a little” but rather a “drug deal for profit”; and Moore’s

      culpability was high and the act took “a significant amount of time[.]” [Prior

      Case] Transcript of the Evidence, Volume 2 at 53.


              [T]his wasn’t a moment where [Moore]’s intoxicated and
              something just happens . . . [I]f it was a regular business deal, I
              would have commended him for his patience, and courtesies, as
              they’re talking on the phone, he drove all over this county trying
              to find the location, he was very respectful, and if it was a regular
              business deal, it would have been commendable. But, the fact
              that he was delivering fentanyl, makes his culpability high, this
              was not a kneejerk decision, this was a plan. The severity of the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 4 of 13
              crime and potential damage to others is very high . . . . Heroin is
              a deadly drug in itself, but if a heroin user believes they got a
              gram of heroin, and it’s a full gram of fentanyl, that’s extremely
              dangerous and deadly in its self [sic].


      Id. at 53-54. The trial court found Moore’s serious medical condition a

      mitigating factor. In addition, the trial court considered Moore’s juvenile and

      adult criminal history, as well as evidence demonstrating Moore’s extensive

      knowledge of drugs and gang activity. The trial court sentenced Moore to serve

      five years for his dealing in a narcotic drug conviction and ten years for his

      conspiracy to commit dealing in a narcotic drug to be served concurrently. The

      trial court enhanced Moore’s sentence by eighteen years based on his habitual

      offender status. Ultimately, Moore was sentenced to serve an aggregate

      sentence of twenty-eight years executed in the DOC. See [Prior Case]

      Appellant’s Second Corrected Appendix, Volume 3 at 69-74.


[5]   Moore appealed and challenged the sufficiency of the evidence for his

      convictions of dealing in a narcotic drug and conspiracy to commit dealing in a

      narcotic drug weighing at least one gram. On June 29, 2018, in an unpublished

      Memorandum Decision, a panel of this court affirmed Moore’s Level 5 felony

      dealing in a narcotic conviction but reversed his conviction for Level 4 felony

      conspiracy to commit dealing in a narcotic drug, concluding that the State

      failed to prove that the weight of the fentanyl was at least one gram. Moore,

      2018 WL 3192898, at *3-4. Therefore, this court remanded the case to the trial




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 5 of 13
      court with instructions to enter judgment for conspiracy to commit dealing in a

      narcotic drug as a Level 5 felony, and to impose a new sentence. 1 Id.


[6]   On November 2, 2018, the trial court held a sentencing hearing during which

      the trial court took judicial notice of the underlying bench trial, pre-sentence

      investigation report, and all documents on file. See Transcript of [November 2,

      2018] Sentencing Hearing, Volume II at 4-5.2 The trial court again found

      Moore’s physical health a mitigating factor and reiterated the nature of the

      offense: that the drug in this case was between .97 grams and 1.05 grams of

      fentanyl; the potential of harm or death to the user was high because “if

      Fentanyl had been in the same dosages as Heroin had been used, the outcome

      for the user is obviously much different, if not death”; and Moore’s culpability

      was high as he was willing to sell to an informant in the presence of an

      undercover officer. Id. at 23.


[7]   At the conclusion of the hearing, the trial court imposed a six-year sentence.

      The trial court subsequently issued its Abstract of Judgment entering the




      1
        Indiana Code section 35-48-4-1(c) states that the offense is a Level 4 felony if the amount of drug involved is
      at least one gram but less than five grams. Therefore, given that the State failed to prove Moore had at least
      one gram, Moore could not be convicted of Level 4 felony dealing in a narcotic drug. However, regardless of
      the amount, Moore could be convicted dealing in a narcotic drug as a Level 5 felony. See Ind. Code 35-48-4-
      1(a)(2).
      2
       The State also moved to dismiss Moore’s habitual offender enhancement at this hearing. Shortly after
      Moore was originally sentenced in October 2017, our supreme court issued its opinion in Calvin v. State, 87
      N.E.3d 474, 479 (Ind. 2017), which held that, under the plain meaning of the habitual-offender statutes, all
      non-Indiana felonies count as Level 6 felonies. Therefore, based on Moore’s prior convictions, the State
      moved to dismiss Moore’s habitual offender status as it was no longer a valid enhancement and the trial court
      granted the motion. See Tr. of [November 2, 2018] Sentencing Hearing, Vol. II at 4.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020                    Page 6 of 13
      following judgment: a finding of guilty on Count I, dealing in a narcotic drug, a

      Level 5 felony; finding of not guilty on Count II, conspiracy to commit dealing

      in a narcotic drug, a Level 4 felony; and dismissal of Count III, habitual

      offender status. See Corrected Appellant’s Appendix, Volume 3 at 169-170.

      The trial court sentenced Moore to serve six years on Count I to be executed in

      the DOC. See id.


[8]   Moore appealed and the State filed a Motion to Remand with this court arguing

      that the trial court failed to follow this court’s sentencing instructions as

      directed in Moore. On March 25, 2019, this court granted the State’s motion in

      part, dismissed Moore’s appeal without prejudice, and remanded the case to the

      trial court with instructions to reconsider its sentencing order in light of this

      court’s June 29, 2018 Memorandum Decision. Id. at 199.


[9]   Following a sentencing hearing on April 30, 2019, during which no additional

      evidence was presented, the trial court issued an Amended Judgment of

      Conviction and Sentencing Order, in which Count II, conspiracy to commit

      dealing in a narcotic drug as a Level 5 felony, was merged into Count I due to

      double jeopardy concerns. See Appealed Order at 1.3 The trial court entered

      judgment of conviction on Count I, dealing in a narcotic drug, a Level 5 felony,

      and sentenced Moore to serve six years. Moore now appeals.




      3
          Count III remained dismissed.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 7 of 13
                                  Discussion and Decision
                                   I. Inappropriate Sentence
                                       A. Standard of Review
[10]   Article 7, sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of sentences through Indiana Appellate Rule 7(B).

       King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides,

       “The 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.” Sentencing decisions rest within the discretion of the trial court and,

       as such, should receive considerable deference. Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). “Such deference should prevail 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).


[11]   The defendant bears the burden of demonstrating his sentence is inappropriate

       under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and

       we may look to any factors in the record for such a determination, Reis v. State,

       88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether we regard a

       sentence as [in]appropriate at the end of the day turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 8 of 13
       others, and myriad other factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224.


                                      B. Nature of the Offense
[12]   Moore contends his six-year sentence is inappropriate in light of the nature of

       his offense because the aggregate weight of the drugs was approximately one

       gram, he was not in possession of a weapon, and no one was injured during the

       commission of the crime. We are unpersuaded that these factors render

       Moore’s sentence inappropriate.


[13]   The advisory sentence is the starting point our legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       The sentencing range for a Level 5 felony is between one and six years, with an

       advisory sentence of three years. Ind. Code § 35-50-2-6(b). Here, the trial court

       sentenced Moore to six years, the maximum sentence, for his dealing in a

       narcotic drug conviction.


[14]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation in it. Washington v.

       State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. When

       evaluating a defendant’s sentence that deviates from the advisory sentence, we

       consider whether there is anything more or less egregious about the offense as

       committed by the defendant that distinguishes it from the typical offense

       accounted for by our legislature when it set the advisory sentence. Moyer v.

       State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 9 of 13
[15]   As the trial court acknowledged, Moore’s crime was severe and the potential

       damage and harm to others was very high. Moore sold what the buyer believed

       to be heroin but was actually fentanyl, a much more powerful and dangerous

       drug. As the trial court explained at the 2017 sentencing hearing, “Heroin is a

       deadly drug in itself, but if a heroin user believes they got a gram of heroin, and

       it’s a full gram of fentanyl, that’s extremely dangerous and deadly in its self

       [sic].” [Prior Case] Tr., Vol. 2 at 53-54. Therefore, had the buyer in this case

       actually been a user rather than an informant, who used the drugs believing it

       was heroin, the consequence could have been fatal. Although Moore did not

       employ a weapon or injure anyone during the transaction, the mere “absence of

       physical harm is not an automatic mitigating circumstance such that it would

       require a lesser sentence than would otherwise be imposed.” Neale v. State, 826

       N.E.2d 635, 638 (Ind. 2005).


[16]   The trial court also considered Moore’s high culpability in imposing the

       maximum sentence. The evidence demonstrates that the transaction was a

       carefully crafted plan requiring a great deal of patience, communication, and a

       significant amount of time; it was not an impulsive and thoughtless act. The

       nature of the offense is extremely serious given that Moore sold approximately

       one gram of fentanyl. In sum, we conclude that the nature of the offense does

       not warrant revision of Moore’s maximum sentence.


                                     C. Character of Offender
[17]   Moore also argues his character renders his sentence inappropriate. Although

       Moore acknowledges his criminal history, he argues that the “aggravating effect
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 10 of 13
       of his criminal history is tenuous and substantially outweighed by [his]

       significant medical conditions. [His] debilitating and potentially terminal

       medical conditions work a substantial hardship on him during any period of

       incarceration.” Appellant’s Amended Brief at 13. We disagree.


[18]   The “character of the offender” portion of the Rule 7(B) standard permits a

       broader consideration of the defendant’s character. Anderson v. State, 989

       N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “A defendant’s life and

       conduct are illustrative of his or her character.” Morris v. State, 114 N.E.3d 531,

       539 (Ind. Ct. App. 2018), trans. denied. And the trial court’s recognition or non-

       recognition of aggravators and mitigators serves as an initial guide in

       determining whether the sentence imposed was inappropriate. Stephenson v.

       State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016).


[19]   When considering the character-of-the-offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). “The significance of a criminal

       history . . . varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense.” Id. And this court has held that “[e]ven a

       minor criminal record reflects poorly on a defendant’s character.” Reis, 88

       N.E.3d at 1105.


[20]   Moore’s pre-sentence investigation report reveals that he has an extensive

       criminal history which began in 1998 when Moore was nine years old.

       Corrected Appellant’s App., Vol. 3 at 78. As a juvenile, Moore was


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 11 of 13
       adjudicated a delinquent for various crimes, including assault; two

       adjudications for theft; two adjudications for violating a court order;

       unauthorized use of a motor vehicle; possession of marijuana; receiving stolen

       property in an amount greater than $5,000; fleeing a police officer; and

       aggravated robbery. Moore’s adult criminal history is comprised of convictions

       for robbery, robbery with specifics, felonious assault with specifics, having

       weapons under disability, drug possession, and driving under suspension. See

       id. at 78-81.4 There is no question that Moore’s criminal history reflects poorly

       on his character.


[21]   The trial court found Moore’s medical issues, which are well documented in the

       record, a mitigating factor. Moore’s DOC medical records were admitted into

       evidence at the November 2, 2018 sentencing hearing and testimony revealed

       that Moore underwent a heart procedure while incarcerated. See generally

       [Confidential] Volume of Exhibits, Volume 1-2. Although we are sympathetic

       to Moore’s various medical issues, every incarceration involves hardship,

       Moore’s medical condition pre-dates the instant offense, and there is no

       evidence he is not receiving adequate medical care while incarcerated.

       Furthermore, despite Moore’s poor health and frequent contact with our justice

       system, he was not deterred from committing the instant and potentially lethal

       offense. See Rutherford, 866 N.E.2d at 874 (“Despite . . . frequent contact with

       the criminal justice system and the police power of the State, [the defendant]



       4
           These crimes were all prosecuted in Ohio.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 12 of 13
       was not deterred from committing the present offense.”). We conclude

       Moore’s sentence is not inappropriate in light of his character.



                                               Conclusion
[22]   After due consideration of the sentence imposed by the trial court, the nature of

       Moore’s offense, and his character, we conclude Moore’s six-year sentence is

       not inappropriate. Accordingly, we affirm.


[23]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020   Page 13 of 13
