Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                Aug 15 2014, 10:11 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

RANDY M. FISHER                                  GREGORY F. ZOELLER
Deputy Public Defender                           Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                              GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MARSHAWN A. MOORE,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 02A04-1312-CR-623
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                             Cause No. 02D06-1307-FA-27



                                       August 15, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Marshawn Moore appeals his sentence following his conviction for burglary, as a

Class A felony. Moore presents two issues for our review:

      1.     Whether the trial court abused its discretion when it sentenced him.

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

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      On July 1, 2013, Moore and Raymond Richardson knocked on the door of Seth

Smith’s residence. Smith lived there with his stepmother, Jennifer Smith, and Michael

Faller, who is physically disabled and confined to a wheelchair. Smith opened the door

“about an inch or two” to see who it was, and Moore and Richardson forced their way

into the house. Tr. at 51. Moore and Richardson told Smith and Faller that Jennifer

owed them money, and they demanded that Smith give them money. Smith told the men

that Jennifer was not there, and both men struck Smith in the head.

      Moore and Richardson then proceeded to punch and kick Smith and continued to

demand money from him. Moore said to Faller, “You’re lucky you’re in your wheelchair

because I can’t hit a man in a wheelchair.” Id. at 23. And Moore told Faller to call

Jennifer, which he did. Faller told Jennifer that Moore was looking for the money she

owed him and was beating up Smith. After they hung up, Jennifer called police. At

some point, Moore got a knife from the kitchen and threatened to hurt Smith with it.

Moore and Richardson then began to gather tools and a PlayStation II, but Richardson



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realized that the police had arrived, and Moore and Richardson dropped everything and

fled. Police officers quickly apprehended Moore.

       The State charged Moore with burglary, as a Class A felony; robbery, as a Class B

felony; and battery, as a Class A misdemeanor. A jury found him guilty as charged. The

trial court entered judgment of conviction for burglary, as a Class A felony, and

sentenced Moore to thirty-five years executed. This appeal ensued.

                             DISCUSSION AND DECISION

                     Issue One: Abuse of Discretion in Sentencing

       Moore first contends that the trial court abused its discretion when it sentenced

him. Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). An

abuse of discretion occurs if the 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. Id.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering a sentencing
       statement that explains reasons for imposing a sentence—including a
       finding of aggravating and mitigating factors if any—but the record does
       not support the reasons, or the sentencing statement omits reasons that are
       clearly supported by the record and advanced for consideration, or the
       reasons given are improper as a matter of law . . . .

              [However, b]ecause the trial court no longer has any obligation to
       “weigh” aggravating and mitigating factors against each other when
       imposing a sentence, . . . a trial court cannot now be said to have abused its
       discretion in failing to “properly weigh” such factors.

Id. at 490-91.

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       Moore contends that the trial court abused its discretion when it did not identify as

mitigating: his age; that an extended period of incarceration would be a hardship on his

three dependents; and his employment. The determination of mitigating circumstances is

within the trial court’s discretion. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App.

2007), trans. denied. The trial court is not obligated to accept the defendant’s argument

as to what constitutes a mitigating factor, and a trial court is not required to give the same

weight to proffered mitigating factors as does a defendant. Id. A trial court does not err

in failing to find a mitigating factor where that claim is highly disputable in nature,

weight, or significance. Id. An allegation that a trial court abused its discretion by

failing to identify or find a mitigating factor requires the defendant on appeal to establish

that the mitigating evidence is significant and clearly supported by the record. Id.

       The trial court considered each of Moore’s proffered mitigators and rejected them.

In particular, the trial court found that Moore was “old enough to know better”; that

Moore put himself in the position of not being able to provide for his children during his

incarceration; and that it was “troubling that [he was] employed at the time” and still

committed this offense. Sent. Tr. at 12. On appeal, Moore has failed to demonstrate that

the proffered mitigators are significant and clearly supported by the record. We hold that

the trial court did not abuse its discretion when it sentenced Moore.

                           Issue Two: Inappropriate Sentence

       Moore also contends that his sentence is inappropriate in light of the nature of the

offense and his character. Again, the trial court imposed a thirty-five year sentence. The

sentencing range for a Class A felony is twenty years to fifty years with the advisory

sentence being thirty years. Ind. Code § 35-50-2-4.
                                              4
       Although a trial court may have acted within its lawful discretion in determining a

sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize[]

independent appellate review and revision of a sentence imposed by the trial court.”

Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This

appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of

a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his

sentence is inappropriate in light of the nature of his offenses and his character. See App.

R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the

trial court’s recognition or non-recognition of aggravators and mitigators as an initial

guide to determining whether the sentence imposed was inappropriate. Gibson v. State,

856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the

appellate court that his or her sentence has met th[e] inappropriateness standard of

review.” Roush, 875 N.E.2d at 812 (alteration original).

       And our supreme court has stated that “sentencing 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). Indiana’s flexible sentencing

scheme allows trial courts to tailor an appropriate sentence to the circumstances

presented. See id. at 1224. 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.


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       Moore first contends that his sentence is inappropriate in light of the nature of the

offense. Moore “concede[s] to the seriousness of these felony criminal acts” but alleges

that “all of the victims were either drug dealers and/or users.” Appellant’s Br. at 16. But

the character of the victims is not at issue here, and we disapprove of Moore’s attempt to

use the character of the victims to mitigate the nature of the offense. However, we accept

Moore’s concession regarding the “seriousness of these felony criminal acts,” id., and we

further note that the trial court found that Smith obviously “suffers from some mental

disability,” Sent. Tr. at 13. We cannot say that Moore’s sentence is inappropriate in light

of the nature of the offense.

       As for his character, Moore points out that, as the trial court recognized, he has no

criminal history, maintains full-time employment, and provides for three children. But

the evidence shows that Moore was dealing in cocaine at the time of the offense. And

while Moore boasts having had regular, full-time employment, the presentence

investigation report shows that Moore was mostly unable to keep a job for more than a

few months before quitting or being laid off. Moore reported having six different jobs

between 2009 and 2013, all but one of which lasted six months or less, and he was not

employed during 2010. Finally, Moore was found to be at a moderate risk to reoffend

under the Indiana Risk Assessment System. We cannot say that Moore’s thirty-five-year

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

       Affirmed.

BAILEY, J., and PYLE, J., concur.




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