MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Nov 14 2017, 10:35 am
this Memorandum Decision shall not be                                          CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
court except for the purpose of establishing                                    and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                    Curtis T. Hill, Jr.
Clark County Public Defender’s Office                   Attorney General of Indiana
Jeffersonville, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric L. Moots,                                          November 14, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        10A01-1706-CR-1279
        v.                                              Appeal from the Clark Circuit
                                                        Court
State of Indiana,                                       The Honorable Vicki L.
Appellee-Plaintiff                                      Carmichael, Judge
                                                        Trial Court Cause No.
                                                        10C04-1602-F4-11



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1706-CR-1279 | November 14, 2017           Page 1 of 6
                                                  Case Summary
[1]   Eric Moots appeals the twelve-year sentence imposed by the trial court

      following his guilty plea to level 4 felony burglary. He contends that his

      sentence is inappropriate in light of the nature of the offense and his character.

      Concluding that he has not met his burden to demonstrate that his sentence is

      inappropriate, we affirm.


                                     Facts and Procedural History
[2]   Moots worked for his half brother, Jimmy Green. On January 26, 2016, Moots

      phoned Green and told him he was unable to make it into work. Moots asked

      his sister to drive him to Green’s house so he could pick something up from

      Green’s back porch. He walked back to the porch area, but he did not have

      anything with him when he returned to the car. Moots later returned to

      Green’s house, kicked in the basement door, and ransacked the house. Moots

      knew where Green kept his guns, and he took three of them. He also

      unsuccessfully tried to break into Green’s gun safe located in a closet. Moots

      caused damage to the doors of the home and the gun safe. While in jail, Moots

      confessed to a detective that he subsequently used one of the stolen guns to

      commit a bank robbery.1 Appellant’s App. Vol. 2 at 76.


[3]   The State charged Moots with level 4 felony burglary, level 6 felony theft of a

      firearm, and being a habitual offender. Pursuant to a plea agreement, Moots



      1
          The State charged Moots with level 3 felony robbery in a separate cause.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1706-CR-1279 | November 14, 2017   Page 2 of 6
      pled guilty to one count of level 4 felony burglary in exchange for dismissal of

      the other charges. Sentencing was left to the trial court’s discretion. The trial

      court sentenced Moots to twelve years with three years suspended to probation.

      The court also gave Moots the option to participate in the Purposeful

      Incarceration program for the last two years of his executed sentence. This

      appeal ensued.


                                     Discussion and Decision
[4]   Moots claims that his sentence is inappropriate and invites this Court to reduce

      it pursuant to Indiana Appellate Rule 7(B), which provides that we may revise a

      sentence 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.” The defendant bears the burden to

      persuade this Court that his or her sentence is inappropriate. Childress v. State,

      848 N.E.2d 1073, 1080 (Ind. 2006). 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 v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal

      role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.

      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 facts that come to light in a given

      case.” Id. at 1224. We consider all aspects of the penal consequences imposed

      by the trial court in sentencing the defendant, including whether a portion of

      Court of Appeals of Indiana | Memorandum Decision 10A01-1706-CR-1279 | November 14, 2017   Page 3 of 6
      the sentence is ordered suspended “or otherwise crafted using any of the variety

      of sentencing tools available to the trial judge.” Davidson v. State, 926 N.E.2d

      1023, 1025 (Ind. 2010). In conducting our review, we do not look to see

      whether the defendant’s sentence is appropriate or “if another sentence might

      be more appropriate; rather, the question is whether the sentence imposed is

      inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).


[5]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

      for a level 4 felony is between two and twelve years, with the advisory sentence

      being six years. Ind. Code § 35-50-2-5.5. The trial court here imposed the

      maximum sentence of twelve years, with three years suspended to probation.


[6]   Moots argues that the advisory sentence of six years would be more appropriate

      because there was nothing egregious about his offense. He points out that when

      he committed the burglary, nobody was present at the house and nobody was

      injured. Appellant’s Br. at 7. Moots ignores, however, that the evidence

      indicates that this was a premeditated burglary of a family member’s home, that

      he abused a position of trust, and that he caused property damage while doing

      so. The evidence also indicates that Moots’s purpose in committing the

      burglary was to obtain a gun to use in a subsequent armed robbery. We are not

      persuaded that the nature of this offense warrants a sentence reduction. We

      remind Moots that the question is not whether another sentence might be more



      Court of Appeals of Indiana | Memorandum Decision 10A01-1706-CR-1279 | November 14, 2017   Page 4 of 6
      appropriate; rather, the question is whether the sentence imposed is

      inappropriate. See Fonner, 876 N.E.2d at 344.


[7]   In any event, we need look no further than his character to justify the sentence

      imposed. When considering the character of the offender, one relevant fact is

      the defendant’s criminal history. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.

      App. 2017), trans. denied. Twenty-nine-year-old Moots has an extensive adult

      criminal history, including several felony convictions and several misdemeanor

      convictions in the span of only ten years.2 Many of his convictions are similar

      to his current offense: he has been convicted of robbery, attempted robbery,

      theft, and unlawful possession of a firearm by a serious violent felon. He has

      been granted the leniency of probation on multiple occasions, only to violate

      that probation and have it revoked. Moots’s refusal to alter his criminal

      behavior reflects very poorly on his character. Moreover, as noted above, he

      violated a position of trust when committing the current offense, and he used

      one of the stolen guns to commit yet another crime. Moots has not convinced

      us that his twelve-year sentence, a quarter of which has been suspended to

      probation, and two years of which may be served in Purposeful Incarceration, is

      inappropriate in light of the nature of the offense or his character.




      2
        Although Moots’s juvenile history “could not be added to [the Presentence Investigation Report] due to not
      being entered in Odyssey Case System,” Moots reported that he had his first involvement with the criminal
      justice system at age eight, and the records from a 2008 presentence investigation revealed that he had at least
      eleven separate placements in juvenile delinquency facilities between the ages of thirteen and eighteen.
      Appellant’s App. Vol. 2 at 64.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1706-CR-1279 | November 14, 2017            Page 5 of 6
[8]   We note that as part of his Rule 7(B) character analysis, Moots argues that the

      trial court failed “to consider significant mitigating circumstances[.]”

      Appellant’s Br. at 8. However, Moots conflates two different appellate

      arguments. An inappropriate sentence analysis does not involve an argument

      that the trial court abused its discretion in sentencing the defendant. King v.

      State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Nevertheless, even if the trial

      court had abused its discretion in its consideration of (or failure to consider)

      mitigating circumstances, reversal would not be necessary, because as we have

      already concluded, the sentence imposed is not inappropriate. See Mendoza v.

      State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that “even if the trial

      court is found to have abused its discretion in the process it used to sentence the

      defendant, the error is harmless if the sentence imposed was not

      inappropriate”), trans. denied. We affirm the sentence imposed by the trial

      court.


[9]   Affirmed.



      Vaidik, C.J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 10A01-1706-CR-1279 | November 14, 2017   Page 6 of 6
