      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any                       Mar 13 2018, 6:32 am
      court except for the purpose of establishing
                                                                           CLERK
      the defense of res judicata, collateral                          Indiana Supreme Court
                                                                          Court of Appeals
      estoppel, or the law of the case.                                     and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      G. Allen Lidy                                            Curtis T. Hill
      Lidy Law, PC                                             Attorney General of Indiana
      Mooresville, Indiana
                                                               Justin F. Roebel
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jeremiah I. Moore,                                       March 13, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               55A04-1708-CR-1984
              v.                                               Appeal from the Morgan Superior
                                                               Court
      State of Indiana,                                        The Honorable Peter R. Foley,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               55D01-1509-F2-1384



      Mathias, Judge.


[1]   Jeremiah Moore (“Moore”) pleaded guilty to Level 4 felony possession of a

      narcotic drug in excess of 10 grams in Morgan Superior Court. Sentencing was


      Court of Appeals of Indiana | Memorandum Decision 55A04-1708-CR-1984 | March 13, 2018    Page 1 of 6
      left to the discretion of the trial court, and Moore received a six-year sentence,

      with three years executed in the Department of Correction (“DOC”), one year

      of home detention, and two years suspended to probation. Moore now appeals

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

      and the character of the offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On September 28, 2015, a state trooper and a confidential informant (“CI”)

      arranged to purchase 20 grams of heroin in Morgan County, Indiana. At the

      controlled buy, the CI identified the vehicle and the target, and two state

      troopers stopped the vehicle. An individual, later identified as Moore, exited the

      passenger door and made movements to indicate he was going to run. Moore

      was blocked in, and a trooper on scene watched as Moore placed a bag in his

      mouth and attempted to swallow it. An officer on site was able to tackle Moore

      and retrieve the item from his mouth, which was later identified as 27 grams of

      heroin. Inside the vehicle, a state trooper removed a loaded semi-automatic

      handgun which Moore later indicated was his.


[4]   Moore was charged with Level 2 felony dealing in a narcotic drug in excess of

      10 grams, Level 3 felony dealing in a narcotic drug with a firearm, Level 3

      felony possession of a narcotic drug in excess of 10 grams with a firearm, and

      Level 6 felony maintaining a common nuisance.




      Court of Appeals of Indiana | Memorandum Decision 55A04-1708-CR-1984 | March 13, 2018   Page 2 of 6
[5]   On January 19, 2017, Moore entered into an open plea agreement in which he

      pleaded guilty to the Level 4 felony possession of a narcotic drug in excess of 10

      grams, and the State dismissed the remaining charges. Sentencing was left to

      the discretion of the trial court. Moore pleaded guilty pursuant to the plea

      agreement at his June 26 guilty plea hearing, and the trial court took the plea

      under advisement and ordered a presentence investigation.


[6]   Moore’s sentencing hearing was held on August 7 in which the trial court

      accepted the plea agreement and dismissed the remaining charges. The court

      found Moore’s criminal history and the fact that he committed the instant

      offense while released on his own recognizance in a separate case as

      aggravating factors. As a mitigating circumstance, the trial court noted that

      Moore would likely respond positively to short-term imprisonment and

      supervision. Ultimately, the court found the aggravators and mitigators

      balanced, and it sentenced Moore to the advisory term of six years, with three

      years executed in the DOC, one year of home detention, and two years

      suspended to probation.


[7]   Moore now appeals his sentence.


                                     Discussion and Decision
[8]   Moore argues that the imposition of the six-year sentence is inappropriate.

      Specifically, Moore contends that his sentence is inappropriate because “[t]he

      nature of the offense and the character of [Moore] demand a lesser aggregate




      Court of Appeals of Indiana | Memorandum Decision 55A04-1708-CR-1984 | March 13, 2018   Page 3 of 6
       sentence and a lesser executed sentence because of the mitigators the Trial

       Court found.” Appellant’s Br. at 7. We disagree.


[9]    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.” In conducting our review, “[w]e do not look

       to determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). “[S]entencing is principally a discretionary function in which the trial

       court’s judgment should receive considerable deference.” Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008). Thus, although we have the power to review

       and revise sentences, the principal role of appellate review should be to attempt

       to “leaven the outliers, and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Id. at 1225. It is Moore’s burden on

       appeal to establish that his sentence is inappropriate. Grimes v. State, 84 N.E.3d

       635, 645 (Ind. Ct. App. 2017), trans. denied.


[10]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The

       advisory sentence for a Level 4 felony is six years, with a sentencing range of

       two to twelve years. Ind. Code § 35-50-2-5.5 Thus, Moore was ordered to serve

       the advisory sentence.

       Court of Appeals of Indiana | Memorandum Decision 55A04-1708-CR-1984 | March 13, 2018   Page 4 of 6
[11]   Concerning the nature of the offense, when first stopped by officers, Moore

       attempted to swallow 27 grams of heroin. He was also traveling with a loaded

       semi-automatic handgun that he admitted was his. Moreover, he brought the

       drugs from Indianapolis to distribute in Morgan County, and he was carrying

       an amount of drugs far exceeding the statutory threshold for the offense.


[12]   We acknowledge that several of these factors do not directly relate to the

       possession charge to which Moore pleaded guilty, however, “it is not necessary

       for a trial court to turn a blind eye to the facts of the incident that brought the

       defendant before them.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013); see

       also Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (holding the “circumstances

       of the crime as well as the manner in which the crime is committed” are proper

       aggravating factors for a trial court to consider). Simply put, the nature of the

       offense does not support a finding that Moore’s advisory sentence was

       inappropriate.


[13]   Regarding Moore’s character, this is his first felony conviction. However, we

       will not ignore the fact Moore has a prior arrest and conviction for possession of

       marijuana,1 he committed the instant offense after being released on his own

       recognizance from that case, and he tested positive for marijuana while out on

       bond in the present case. Despite Moore’s previous contact with the criminal




       1
         Moore’s Class B misdemeanor possession of marijuana conviction was pending at the time he was arrested
       for the instant offense. However, Moore had been convicted of the Class B misdemeanor by the time the trial
       court sentenced him here.


       Court of Appeals of Indiana | Memorandum Decision 55A04-1708-CR-1984 | March 13, 2018           Page 5 of 6
       justice system and the police power of the State, he was not deterred from

       committing the instant offense. Therefore, although Moore’s criminal history is

       not significantly aggravating, it is still a poor reflection on his character. See

       Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).


[14]   We commend Moore for taking responsibility for his actions, expressing a

       desire to turn his life around and take care of his family, and for completing an

       eight-hour drug treatment program on his own. However, we cannot conclude

       that the trial court’s decision to impose the six-year advisory sentence here is an

       “outlier” that should be reversed under our constitutional authority to review

       and revise sentences. Caraway v. State, 977 N.E.2d 469, 473 (Ind. Ct. App.

       2012), trans. denied.


                                                 Conclusion
[15]   Based on the facts and circumstances before us, we conclude that Moore has

       not met his burden of persuading us that his six-year sentence is inappropriate

       in light of the nature of the offense and the character of the offender.

       Accordingly, we affirm.


       Najam, J. and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A04-1708-CR-1984 | March 13, 2018   Page 6 of 6
