                                                                                 FILED
                                                                             Jan 23 2020, 8:59 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brian A. Karle                                             Curtis T. Hill, Jr.
      Ball Eggleston, PC                                         Attorney General of Indiana
      Lafayette, Indiana
                                                                 Benjamin J. Shoptaw
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      McConney J. George,                                        January 23, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2300
                 v.                                              Appeal from the Tippecanoe
                                                                 Superior Court
      State of Indiana,                                          The Honorable Steven Meyer,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 79D02-1805-F4-20



      May, Judge.


[1]   McConney J. George appeals his 10-year-and-180-day sentence for Level 4

      felony unlawful possession of a firearm by a serious violent felon, 1 Class A



      1
          Ind. Code § 35-47-4-5(c).


      Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020                           Page 1 of 11
      misdemeanor carrying a handgun without a license, 2 and Class B misdemeanor

      possession of marijuana. 3 He raises three issues on appeal, which we restate as:


                 1. whether his conviction of carrying a handgun without a license
                 violates the constitutional prohibition against double jeopardy,


                 2. whether the trial court abused its discretion at sentencing by
                 considering George’s failure to cooperate during the presentence
                 investigation interview as an aggravating circumstance, and


                 3. whether his sentence is inappropriate in light of the nature of
                 his offenses and his character.


      We affirm in part, vacate in part, and remand.



                                   Facts and Procedural History
[2]   On May 23, 2018, Officer Scott Swick initiated a traffic stop after observing

      George’s car run a stop sign. When Officer Swick approached George’s car

      window, he immediately detected the odor of marijuana and called for a K9

      unit. The K9 indicated the presence of narcotics and police searched the car.

      Police discovered a handgun in the vehicle and placed George under arrest.

      The serial number on the handgun revealed the gun had been stolen. During




      2
          Ind. Code § 35-47-2-1.
      3
          Ind. Code § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020            Page 2 of 11
      booking at Tippecanoe County Jail, police found a baggie of marijuana in

      George’s pocket.


[3]   On May 25, 2018, the State charged George with Class A misdemeanor

      carrying a handgun without a license, Level 6 felony theft of a firearm, 4 Class B

      misdemeanor possession of marijuana, Level 4 felony unlawful possession of a

      firearm by a serious violent felon, and Level 5 felony carrying a handgun

      without a license with a prior felony conviction. 5 The court held a bifurcated

      jury trial from August 20 to 22, 2018. George was acquitted of theft of the

      firearm but found guilty of all remaining charges. The court entered judgment

      of conviction for carrying a handgun without a license, possession of

      marijuana, and unlawful possession of a firearm by a serious violent felon. The

      court sentenced George to 10 years for unlawful possession of a firearm by a

      serious violent felon, 1 year for carrying a handgun without a license, and 180

      days for possession of marijuana. The court ordered the 180 days for

      possession of marijuana served consecutive to the 10-year sentence for

      possession of the firearm, and it ordered the year for carrying a handgun served

      concurrent with the 10-year sentence. The court ordered all time served

      executed.




      4
          Ind. Code § 35-43-4-2.
      5
          Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020     Page 3 of 11
                                  Discussion and Decision
                                         1. Double Jeopardy
[4]   George argues his convictions of carrying a handgun without a license and

      possession of a firearm by a serious violent felon violate the constitutional

      prohibition against double jeopardy because George’s possession of the same

      handgun at the same time is used to support both offenses. The State agrees the

      entry of both convictions violates Indiana’s double jeopardy principles.


[5]   The United States Supreme Court established the Blockburger test, also known as

      the “same elements test,” for determining whether a single act that violates

      more than one law constitutes multiple offenses for purposes of the Fifth

      Amendment Double Jeopardy Clause. Blockburger v. United States, 284 U.S.

      299, 52 S. Ct. 180 (1932). Our Indiana Supreme Court expanded upon the

      Blockburger test to include both the statutory elements of the conviction and the

      actual evidence used to convict. Richardson v. State, 717 N.E.2d 32, 49 (Ind.

      1999).


               Two offenses are the “same offense” in violation of Indiana’s
               double jeopardy clause if, with respect to either the statutory
               elements of the challenged crimes or the actual evidence used to
               convict, the essential elements of one challenged offense also
               establish the essential elements of another challenged offense.
               We review de novo whether the defendant’s convictions violate
               this provision.


      Shultz v. State, 115 N.E.3d 1280, 1283 (Ind. Ct. App. 2018) (internal citation

      omitted) (emphasis in original).
      Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020        Page 4 of 11
[6]   The facts herein are similar to those in Jarrell v. State, 818 N.E.2d 88 (Ind. Ct.

      App. 2004), trans. denied. Jarrell was arrested when he was found to be in

      possession of a loaded firearm during a routine traffic stop. He was

      subsequently convicted of both possession of a firearm by a serious violent felon

      and carrying a handgun without a license. Id. at 91. He appealed those

      convictions on double jeopardy grounds. We concluded that, because both

      offenses stemmed from carrying the same gun, the convictions violated the

      double jeopardy clause. Id. at 93.


[7]   Similarly, here, for the carrying of a single handgun, George was convicted of

      carrying a handgun without a license and possession of a firearm by a serious

      violent felon, and one of his convictions must be reversed. Accordingly, we

      vacate George’s conviction of Class A misdemeanor carrying a handgun

      without a license. See, e.g., Alexander v. State, 768 N.E.2d 971, 978 (Ind. Ct.

      App. 2002) (vacating lower class crime to eliminate double jeopardy violation)

      aff’d on reh’g, trans. denied.


                                    2. Sentencing Discretion
[8]   George next asserts the trial court abused its discretion when it construed as an

      aggravator George’s silence when the Probation Department prepared the

      presentence investigation report (“PSI”). A trial court commits an abuse of

      discretion if “the decision is clearly against the logic and effect of the facts and

      circumstances.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on

      reh’g 875 N.E.2d 218 (Ind. 2007). There are four ways that a trial court can


      Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020        Page 5 of 11
       abuse its discretion at sentencing: (1) failing to enter a sentencing statement

       altogether; (2) entering a sentencing statement explaining reasons for imposing

       the sentence when those reasons are not supported by the record; (3) failing to

       include reasons supported by the record and put forth for consideration when

       entering a sentencing statement; and (4) considering reasons inappropriate as a

       matter of law. Id. at 490-91. If the trial court abused its discretion in one or

       more of those ways and we are unable to “say with confidence that the trial

       court would have imposed the same sentence had it properly considered

       reasons that enjoy support in the record,” then we will remand for resentencing.

       Id. at 491.


[9]    George argues the trial court abused its discretion when it found George’s

       silence during preparation of the PSI to be an aggravating factor. The purpose

       of a PSI is to examine any possible aggravating and mitigating factors across a

       wide breadth of topics to inform the court as to proper sentencing. Dillard v.

       State, 827 N.E.2d 570, 576 (Ind. Ct. App. 2005), trans. denied.


[10]   The court acknowledged George’s Fifth Amendment right against self-

       incrimination but noted the majority of the questions on the PSI did not

       implicate that right. George initially refused to give any information to

       Probation for the PSI. However, he submitted a significant amount of the

       information sought for the PSI on the day before sentencing and at the

       sentencing hearing, including a lengthy personal statement that George

       provided to the judge. (See Tr. Vol. 3 at 31-40.) The court further noted that

       George’s continued refusal to cooperate with Probation did “not speak well of

       Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020       Page 6 of 11
       his character” and there was “no excuse” for his lack of cooperation. (Id. at

       51.) Contrary to George’s argument, his refusal to cooperate with Probation

       does not appear to have had anything to do with his Fifth Amendment right to

       remain silent, because he provided most of the information directly to the court

       at sentencing. As a poor attitude is a valid aggravator, we cannot find the trial

       court abused its discretion. See Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct.

       App. 2019) (holding Adams’ attitude was correctly considered an aggravating

       factor warranting an enhanced executed term).


[11]   Even if the court should not have found an aggravator in George’s failure to

       cooperate with Probation for preparation of the PSI, George has not

       demonstrated reversible error. Only if the trial court’s 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” can an

       abuse of discretion be found. K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)

       (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). If the

       reviewing court “can identify sufficient aggravating circumstances to persuade it

       that the trial court would have entered the same sentence even absent the

       impermissible factor, it should affirm the trial court’s decision.” Groves v. State,

       787 N.E.2d 401, 408 (Ind. Ct. App. 2003) (quoting Day v. State, 560 N.E.2d

       641, 643 (Ind. 1990)), trans. denied.


[12]   Here, the trial court considered five other aggravating factors. First, George’s

       criminal history includes four convictions of armed robbery and battery

       resulting in bodily injury. Second, his violent crimes are repetitive in nature.

       Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020       Page 7 of 11
       Third, his poor conduct at the Department of Correction while serving time for

       his previous convictions resulted in 35 conduct violations in the eight years he

       spent there. Fourth, he was on parole at the time of this offense. Fifth, prior

       rehabilitation efforts had been unsuccessful, as George continued committing

       crimes after serving time in prison. In light of those other aggravators, we have

       little doubt the court would have entered the same sentence even if it had not

       considered George’s silence as an aggravating factor. See, e.g., Bacher v. State,

       722 N.E.2d 799, 803 (Ind. 2000) (finding a sentence may be upheld despite a

       single incorrect aggravating factor, if other aggravating factors are present).


                                       3. Appellate Rule 7(B)
[13]   Finally, George asserts his 10-year-and-180-day sentence is inappropriate.

       Indiana Appellate Rule 7(B) gives us the authority to revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Our

       review is deferential to the trial court’s decision, and our goal is to determine

       whether the appellant’s sentence is inappropriate, not whether some other

       sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012), reh’g denied. We consider not only the aggravators and mitigators found

       by the trial court, but also any other factors appearing in the record. Johnson v.

       State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). The appellant bears the

       burden of demonstrating his sentence in inappropriate. Childress v. State, 848

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



       Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020       Page 8 of 11
[14]   When considering the nature of the offense, our review of appropriateness starts

       with the advisory sentence. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App.

       2009). George’s conviction of possession of marijuana, a Class B

       misdemeanor, exposed him to a possible sentence of no more than 180 days.

       See Ind. Code 35-50-3-3. For Level 4 felony unlawful possession of a firearm by

       a serious violent felon, the trial court could sentence George to a fixed term of

       two to twelve years, with an advisory sentence of six years. See Ind. Code 35-

       50-2-5.5. The court sentenced George to 10 years and 180 days.


[15]   George argues his possession of a firearm by serious violent felon offense is less

       egregious than the standard offense because the loaded gun was not used in the

       commission of a crime. George was out on parole for armed robbery and

       battery. Indiana law prohibits felons from possessing firearms. The elements of

       the crime do not require use of the firearm in commission of a crime, and thus

       we reject George’s argument.


[16]   George also notes he was being regularly drug tested as a requirement of his

       probation and suggests the small amount of marijuana found in his possession

       should entitle him to leniency. Passing drug test results seem diminished in

       light of being caught with marijuana while on parole. He also argues the small

       amount of marijuana makes the offense “less egregious” than the typical

       possession charge. Johnson, 986 N.E.2d at 857. Violating the conditions of

       parole is an aggravating circumstance that can affect sentencing. Ind. Code 35-

       38-1-7.1. This factor differentiates the charge, making it more egregious than



       Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020     Page 9 of 11
       typical. Based on these factors, we conclude the nature of George’s offenses

       does not render his sentence inappropriate.


[17]   When considering the character of the offender, one relevant fact is the

       appellant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of criminal history in assessing a defendant’s

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

       relation the current offense. Id. George’s criminal history includes five felony

       convictions: theft, armed robbery, battery, and criminal confinement resulting

       in serious bodily injury. During previous stints at the DOC, George’s behavior

       was described as “terrible” and he accrued “one of the longest lists of DOC

       conduct violations.” (Tr. Vol. 3 at 50.) In light of George’s serious and violent

       criminal history, and his conduct violations while in prison, we cannot say his

       sentence is inappropriate in light of his character. See, e.g., Stokes v. State, 947

       N.E.2d 1033, 1039 (Ind. Ct. App. 2011) (violent felon with a significant

       criminal history did not meet burden of persuasion to find his sentence

       inappropriate in light of the nature of his offense and character), trans. denied.


                                                  Conclusion
[18]   Convicting George of both Level 4 felony unlawful possession of a firearm by a

       serious violent felon and Class A misdemeanor carrying a handgun without a

       license violates Indiana’s double jeopardy prohibition. Therefore, we must

       vacate George’s conviction of misdemeanor carrying a handgun without a

       license. The trial court did not abuse its discretion by interpreting George’s lack


       Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020        Page 10 of 11
       of cooperation in preparation of the PSI as an aggravating factor at sentencing.

       Further, George’s sentence is not inappropriate in light of the nature of his

       offenses and his character. Accordingly, we affirm in part, vacate in part, and

       remand.


[19]   Affirmed in part; vacated in part; and remanded.




       Najam, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020    Page 11 of 11
