Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                          Dec 18 2013, 9:07 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                             GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                ERIC P. BABBS
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ANDRE MOTON,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 84A01-1305-CR-220
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE VIGO SUPERIOR COURT
                          The Honorable Michael J. Lewis, Judge
                            Cause No. 84D06-1110-MR-3437



                                     December 18, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Andre Moton appeals his sentence for robbery as a class A felony and attempted

carjacking as a class B felony. Moton raises two issues which we consolidate and restate

as whether his sentence is inappropriate in light of the nature of the offense and his

character. We affirm.

                          FACTS AND PROCEDURAL HISTORY1

       Moton, who was born on May 13, 1994, was committed to the Gibault Children’s

Services Facility. On October 24, 2011, Moton and two other juveniles at the facility

beat another individual and then left the facility. The three eventually approached Aaron

Drumm as he was loading groceries in his car in the Walmart parking lot. Drumm

entered his vehicle, and one of the juveniles blocked the door and hit Drumm in the head

with his fist while another juvenile crawled over Drumm, sat in the passenger seat, and

began hitting Drumm in the side of his head and face with his fist. Moton attempted to

take Drumm’s vehicle by striking him, entering his vehicle, and/or attempting to remove

him from the vehicle. The three individuals left while Drumm was still in his vehicle.

       They then walked to a nearby White Castle Restaurant where they beat Kevin

Sherrill and stole his truck. Moton forcefully took a cell phone and wallet from Kevin

Sherrill resulting in serious bodily injury of a laceration and broken hip and/or pelvis.

       The police chased Moton who was driving Sherrill’s truck with the two other

juveniles. Moton struck a concrete median, overcorrected, and struck a light pole and

several parked vehicles. He ran from the vehicle and was apprehended by police. The


       1
           On appeal, Moton cites to an Indiana State Police Incident Report and an Indiana State Police
Supplemental Case Report for his statement of facts. We rely on these documents as well as Moton’s
brief for our recitation of the facts.
                                                   2
two other juveniles were injured in the collision, and one of the juveniles later died from

his injuries.

       On October 28, 2011, the State charged Moton with Count I, felony murder; Count

II, robbery resulting in serious bodily injury as a class A felony; Count III, carjacking as a

class B felony; Count IV, attempted carjacking as a class B felony; Count V, resisting

law enforcement as a class D felony; Count VI, escape as a class C felony; Count VII,

resisting law enforcement as a class A misdemeanor; and Count VIII, battery resulting in

bodily injury as a class A misdemeanor.

       On September 17, 2012, the parties filed a plea agreement in which Moton agreed

to plead guilty to Count II, robbery resulting in serious bodily injury as a class A felony,

and Count IV, attempted carjacking as a class B felony, and the State agreed to dismiss

the remaining counts. The parties agreed that the sentences for Counts II and IV would

run concurrent with one another and any sentence Moton received would be capped at

thirty-five years. At sentencing, the court stated:

       Weighing aggravators and mitigators, I’ll go over aggravators first. The
       fact that you plead guilty to this crime I’m not using as a mitigator because
       you were giving [sic] the benefit of all those other counts being dismissed.
       I do look at your prior criminal history, even though it was all committed as
       a juvenile, . . . there’s force as the prosecutor said is associated with each of
       these arrest [sic], even though some of these cases were dismissed. Battery
       on a police officer, battery on another, disorderly conduct, battery resulting
       in bodily injury, resisting law enforcement, false informing. I look at this
       crime itself. We had an individual attacked at Walmart, Mr. Drum[m], then
       we had an individual attacked at Stake [sic] an [sic] Shake, Mr. Sherrill.
       Which he had some disabilities before but he’s a lot more disabled now
       because of the attack. I do look at some of your problems as child, as a, as
       a child and, I mean you’re still basically a child, I mean some people will
       say eighteen’s (18) a child some people say twenty one (21). You have
       ADHD, you have post traumatic stress disorder from things that happen
       [sic] to you as child. I’ve read the reports, I’ve read Dr. Murphy’s report,
                                                 3
       I’ve read the other documents that said you have oppositional defiance
       disorder. Weighing everything, the mitigators and the aggravators, I think
       they balance each other out.

March 15, 2013 Transcript at 52-53. The court sentenced Moton to thirty years on Count

II, robbery resulting in serious bodily injury as a class A felony, and ten years on Count

IV, attempted carjacking as a class B felony, and ordered the sentences to be served

concurrent with each other for an aggregate sentence of thirty years. The court also

recommended that Moton participate in mental health counseling at the Indiana

Department of Correction.

                                      DISCUSSION

       The issue is whether Moton’s sentence is inappropriate. Indiana Appellate Rule

7(B) provides that this court “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.” Under this rule, the

burden is on the defendant to persuade the appellate court that his or her sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Moton concedes that “[a]fter beating another boy at the Gibault School, [he] and

two other juveniles escaped, beat a man during an unsuccessful carjacking, [] beat

another man during a later successful carjacking,” that “[w]hen police began pursuing the

stolen truck, which Moton was driving, the truck crashed, injuring Moton and [one of the

juveniles] and ultimately killing” the other juvenile, and that Sherrill suffered serious

bodily injuries. Appellant’s Brief at 15. However, Moton argues that the record does not

reflect the extent of the injuries to Drumm or the other victim or the exact roles of each of

                                             4
the three boys in each offense except that Moton was driving the stolen car when it

crashed. With respect to his character, he argues that he was seventeen years old at the

time of the offense, was functioning in the low normal range of intelligence, his juvenile

misconduct is minor in comparison to the present offenses, he suffered from ADHD,

depression, and oppositional defiant disorder, and he is remorseful for these offenses.

Moton requests this court to reverse his sentence and impose an aggregate sentence of no

more than twenty years imprisonment.

       Our review of the nature of the offense reveals Moton and two others approached

Drumm as he was loading groceries in his car in the Walmart parking lot. Moton

attempted to take Drumm’s vehicle by striking him, entering his vehicle, and/or

attempting to remove him from the vehicle. Moton forcefully took a cell phone and

wallet from Sherrill resulting in serious bodily injury to Sherrill, that being laceration and

broken hip and/or pelvis.

       Our review of the character of the offender reveals that while Moton pled guilty to

robbery resulting in serious bodily injury as a class A felony and attempted carjacking as

a class B felony, the State dismissed charges of felony murder, carjacking as a class B

felony, resisting law enforcement as a class D felony, escape as a class C felony, resisting

law enforcement as a class A misdemeanor, and battery resulting in bodily injury as a

class A misdemeanor, and the plea agreement provided that the sentences would run

concurrent with each another and any sentence would be capped at thirty-five years.

       As a juvenile, Moton was charged with battery resulting in bodily injury in 2009,

but the charge was dismissed. That same year, Moton was charged with disorderly

                                              5
conduct and criminal recklessness, he admitted to disorderly conduct and was placed on

probation, and the charge of criminal recklessness was dismissed. In April 2011, Moton

was charged with battery resulting in bodily injury against a law enforcement officer,

disorderly conduct, criminal trespass, and resisting law enforcement. The charge of

battery on a police officer was dismissed, and Moton admitted to the other counts. He

was placed on probation with “In House Arrest,” and a probation violation was filed

because of new charges. Appellant’s Appendix at 125. In August 2011, the State

charged Moton with resisting law enforcement and false informing, and he entered an

admission and was placed at the Gibault facility in Terre Haute. At the time of the

presentence investigation report, Moton was eighteen years old and had three

adjudications as a juvenile which included six misdemeanor offenses.

      Moton has been in counseling and treatment since he was twelve years old. The

presentence investigation report reveals that Moton was diagnosed with ADHD,

depression, and PTSD and has been on ongoing medication for all. The PTSD was a

result of a rape when Moton was eleven years old by the sixteen-year-old son of one of

his mother’s boyfriends. Moton also received inpatient treatment for suicidal ideation.

He was suspended or expelled from Merrillville High School.

      Under the circumstances and after due consideration of the trial court’s decision

and of the record, we conclude that Moton has not sustained his burden of establishing

that his advisory sentence of thirty years for robbery as a class A felony to be served




                                           6
concurrent with his advisory sentence of ten years for attempted carjacking as a class B

felony is inappropriate in light of the nature of the offense and his character.2

        For the foregoing reasons, we affirm Moton’s sentence for robbery as a class A

felony and attempted carjacking as a class B felony.

        Affirmed.

   ROBB, C.J., and BARNES, J., concur.




        2
           Moton also argues that the trial court abused its discretion by failing to find his age and difficult
childhood as mitigating circumstances, by finding Sherrill’s injuries to be an aggravating circumstance
because those injuries were an element of the robbery count, and by finding that Sherrill had some
disabilities before but was now more disabled because of the attack, when the record contains no evidence
of the extent of Sherrill’s injuries before or after the offense. However, “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.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007),
trans. denied; see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that in the absence of
a proper sentencing order, we may either remand for resentencing or exercise our authority to review the
sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind.
Ct. App. 2013) (holding that “even if the trial court did abuse its discretion by failing to consider the
alleged mitigating factor of residual doubt, this does not require remand for resentencing”), trans. denied.
Accordingly, we need not discuss Moton’s contentions that the court abused its discretion in sentencing
him given that we have determined that his sentence is not inappropriate.
                                                       7
