MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Jan 17 2019, 9:07 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      CLERK
                                                                           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
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Shawn P. Morrell,                                        January 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1282
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Donald L. Daniel,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         79C01-1711-F5-151



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019                   Page 1 of 14
                                           Statement of the Case
[1]   Shawn P. Morrell appeals from the sentence imposed by the trial court after his
                                                               1
      conviction of one count of domestic battery, a Level 5 felony, contending that

      the trial court abused its discretion in imposing a sentence of five years for the

      offense. We affirm.


                                                          Issues
[2]   Morrell claims that the trial court abused its discretion during sentencing by

      considering improper factors. More specifically, Morrell raises the following

      claims:


                 I.       Did the trial court abuse its discretion by improperly citing
                          Morrell’s individual risk assessment score as an
                          aggravating factor?


                 II.      Did the trial court abuse its discretion by improperly
                          considering Morrell’s juvenile history during sentencing?


                                    Facts and Procedural History
[3]   The facts supporting the trial court’s judgment of conviction after a bench trial

      follow. Morrell and his girlfriend A.W. were involved in an intimate, romantic

      relationship and lived together at A.W.’s house. On the evening of October 29,

      2017, A.W. was at her daughter’s apartment babysitting her grandchildren




      1
          Ind. Code § 35-42-2-1.3(a)(1), -(c)(4)(A) (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 2 of 14
      while her daughter worked. After the grandchildren were asleep, sometime

      after dark on that date or in the early morning hours of October 30, 2017,

      Morrell joined A.W. at the apartment. According to A.W., Morrell exhibited

      signs of paranoia by looking out of the windows, checking in closets, and

      inquiring if A.W. had hidden police officers in the apartment. Morrell

      subsequently admitted that he was under the influence of drugs. Tr. p. 47.


[4]   Eventually, A.W. fell asleep. When she awoke, Morrell was not beside her

      where she had expected to find him. When she reached for her cell phone prior

      to attempting to locate him in the apartment, she noticed that her phone was

      not in its case. She looked for Morrell and discovered that a light was on in the

      bathroom. Morrell emerged from the bathroom holding A.W.’s cell phone.

      A.W. went to another room where she found Morrell’s cell phone. Although

      she was unable to enter a correct pass code to unlock his phone, she pretended

      to be accessing information on the phone.


[5]   After Morrell returned her phone to her, A.W. noticed that he had deleted the

      contact information she had for his other girlfriend, a person with whom she

      communicated. After A.W. returned his phone to him, Morrell believed that

      A.W. had done something to cause his phone to malfunction. The two argued

      about meddling with each other’s phones. At one point during the argument,

      Morrell grabbed A.W. by the shoulders and head butted her. A.W.’s eye

      immediately began to hurt, and a lump formed on her forehead.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 3 of 14
[6]   A.W. stayed at her daughter’s apartment until her daughter returned home

      from work. When A.W. got in her car to leave, Morrell was sitting in the

      passenger seat. The two waited at A.W.’s house until the urgent care facility

      opened before going there. A nurse at the urgent care facility called for

      assistance from law enforcement officers upon hearing A.W. report that

      Morrell, who was also there at the facility, had caused her injury. Morrell

      noticed that staff were frequently glancing at him as he smoked a cigarette

      outside and left before law enforcement officers arrived. A responding law

      enforcement officer spoke with A.W. about her injury and observed bruising

      and swelling above A.W.’s left eye. Those injuries were documented by

      officers.


[7]   On November 16, 2017, the State charged Morrell with one count of domestic

      battery as a Level 5 felony, and one count of domestic battery as a Class A

      misdemeanor. Later, the State added a charge of invasion of privacy as a Class

      A misdemeanor for alleged contact between Morrell and A.W. after the entry of

      an order for no contact.


[8]   At the conclusion of a bench trial held on April 10, 2018, the trial court found

      Morrell not guilty of invasion of privacy. The court found Morrell guilty of
                                                       2
      domestic battery as a Level 5 felony and merged the conviction for domestic

      battery as a misdemeanor offense with the felony conviction. The trial court



      2
        Morrell admitted at trial that he had a prior conviction for domestic battery which elevated the offense from
      a misdemeanor to a felony.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019                   Page 4 of 14
       imposed its sentence and Morrell now appeals, challenging factors considered

       by the trial court during sentencing.


                                    Discussion and Decision
[9]    The sentencing range for a Level 5 felony is a fixed term of between one and six

       years with the advisory sentence being three years. Ind. Code § 35-50-2-6(b)

       (2014). The trial court imposed a sentence of five years, with three and a half

       years executed at the Indiana Department of Correction, one year at

       community corrections, and six months on supervised probation.


[10]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. McElfresh v. State, 51

       N.E.3d 103, 107 (Ind. 2016). One way in which a trial court may abuse its

       discretion is by omitting from its sentencing statement “reasons that are clearly

       supported by the record and advanced for consideration, or the reasons given

       are improper as a matter of law.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

       2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (2007). Nonetheless, “a

       trial court can not . . . be said to have abused its discretion in failing to ‘properly

       weigh’” aggravators or mitigators. Id. Additionally, if a sentencing court

       improperly applies an aggravating circumstance but other valid aggravating

       circumstances exist, a sentence enhancement may still be upheld. Means v.

       State, 807 N.E.2d 776, 788 (Ind. Ct. App. 2004), trans. denied. When we can

       “identify sufficient aggravating circumstances to persuade us that the trial court

       would have entered the same sentence even without the impermissible factor, it


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 5 of 14
       should affirm the trial court’s decision.” Id. (quoting Day v. State, 560 N.E.2d

       641, 542 (Ind. 1990)).


[11]   During the sentencing hearing, the trial court stated the following reasoning

       when imposing Morrell’s sentence:


               Conviction having been entered against Shawn Patrick Morrell
               on Count 1, [d]omestic battery, a [L]evel 5 felony[,] the court
               now finds that an aggravating circumstance is the defendant’s
               criminal history. The court notes three juvenile adjudications,
               two other juvenile contacts, three felony convictions, two
               misdemeanor convictions. Seven cases which have unknown
               disposition[s]. At least one failure to appear and two pending
               petitions to revoke probation. Second aggravating circumstance
               is that the defendant’s IR[A]S his individual risk assessment
               score is high, likely to re-offend. Third aggravating circumstance
               is his history of illegal alcohol and drug use. A mitigating
               circumstance is that the defendant does have mental health
               issues. Another mitigating circumstance although it is not a great
               weight is that the defendant has one dependent child. A third
               mitigating circumstance is that the defendant has worked to
               better himself by obtaining his GED while he is in custody. The
               court finds that the aggravating circumstances outweigh the
               mitigating circumstances.


       Tr. p. 88.


                            I. Individual Risk Assessment Score
[12]   Morrell argues that we must remand the matter of sentencing due to the trial

       court’s erroneous consideration of this aggravating circumstance. We decline

       to remand the matter on these grounds for reasons we more fully explain below



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 6 of 14
       but agree that the trial court abused its discretion when designating Morrell’s

       IRAS as an aggravating circumstance.


[13]   In a pair of decisions issued on the same day, our Supreme Court clarified how

       individual risk assessment scores should be treated for purposes of sentencing.

       See Malenchik v. State, 928 N.E.2d 564 (Ind. 2010) and J.S. v. State, 928 N.E.2d

       576 (Ind. 2010).


[14]   In Malenchik, 928 N.E.2d at 573, 575, the Supreme Court stated the following:


               It is clear that neither the LSI-R nor the SASSI are intended nor
               recommended to substitute for the judicial function of
               determining the length of sentence appropriate for each offender.
               But such evidence-based assessment instruments can be
               significant sources of valuable information for judicial
               consideration in deciding whether to suspend all or part of a
               sentence, how to design a probation program for the offender,
               whether to assign an offender to alternative treatment facilities or
               programs, and other such corollary sentencing matters. The
               scores do not in themselves constitute an aggravating or
               mitigating circumstance because neither the data selection and
               evaluations upon which a probation officer or other
               administrator’s assessment is made nor the resulting scores are
               necessarily congruent with a sentencing judge’s findings and
               conclusion regarding relevant sentencing factors. Having been
               determined to be statistically valid, reliable, and effective in
               forecasting recidivism, the assessment tool scores may, and if
               possible should, be considered to supplement and enhance a
               judge’s evaluation, weighing, and application of the other
               sentencing evidence in the formulation of an individualized
               sentencing program appropriate for each defendant.


                                                      ****

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 7 of 14
               We hold that the results of LSI-R and SASSI offender assessment
               instruments are appropriate supplemental tools for judicial
               consideration at sentencing. These evaluations and their scores
               are not intended to serve as aggravating or mitigating circumstances nor
               to determine the gross length of sentence, but a trial court may
               employ such results in formulating the manner in which a
               sentence is to be served.


       (emphasis added).


[15]   The Supreme Court’s holding about how to use these assessment tools was

       further refined in a footnote in J.S. Although the appellant in J.S. was facing

       neither of these sentencing options, the Supreme Court announced the

       following:


               Sentencing proceedings for determining whether to impose a
               sentence of death or life imprisonment without parole call for a
               departure from this rule. In cases involving whether to impose a
               sentence of death or life imprisonment without parole, a jury
               may determine the sentence and is entitled to consider any
               mitigating factor or circumstance. . . .In such cases, therefore, the
               results of an LSI-R or other similar evidence-based offender risk
               assessment instrument may be given consideration as an
               independent mitigating circumstance.


       928 N.E.2d at 578 n.3. However, it is apparent that while the Supreme Court is

       inclined to approve of the use of results of an individual risk assessment

       instrument as a mitigating circumstance in those particular circumstances, it

       may not be used as an aggravating circumstance.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 8 of 14
[16]   In the trial court’s oral statement regarding sentencing, which is quoted above,

       Morrell’s IRAS was categorized as an aggravating circumstance. Further, in

       the written sentencing order, the trial court specifically refers to Morrell’s “high

       score on the risk assessment” test as an aggravating circumstance. Appellant’s

       App. Vol. II, p. 79. Therefore, to the extent Morrell’s IRAS was labeled in both

       instances as an aggravating circumstance, the trial court erred.


[17]   However, as the cases above inform us, the trial court is not prohibited from

       considering a defendant’s assessment scores when fashioning an individualized

       sentence. The court is prohibited from labeling and finding it to be a separate

       aggravating circumstance. To the extent the likelihood of recidivism, as

       reflected by the assessment, coupled with Morrell’s adult criminal history–three

       felony convictions and two misdemeanor convictions–could assist the trial

       court in determining Morrell’s sentence, the error in labeling such as an

       aggravating circumstance was harmless.


                                          II. Juvenile History
[18]   Next, Morrell claims that the trial court abused its discretion by considering his

       juvenile history as an aggravating circumstance. Morrell’s challenge is twofold.

       First, Morrell claims the trial court abused its discretion by considering juvenile

       contacts with the justice system that did not result in an adjudication as part of

       his criminal history. Second, Morrell alleges that the trial court abused its

       discretion by considering Morrell’s juvenile adjudications from Florida as part

       of his criminal history, which was an aggravating circumstance. We address

       each argument in turn.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 9 of 14
[19]   Indiana courts have recognized that criminal behavior reflected in juvenile

       delinquency adjudications can serve as the basis for enhancing an adult

       criminal sentence. See, e.g., Simms v. State, 421 N.E.2d 698, 703-04 (Ind. Ct.

       App. 1981). The Supreme Court has emphasized that it is the criminal behavior

       reflected in earlier proceedings rather than the adjudications that is the proper

       proof of a prior history of criminal behavior. Jordan v. State, 512 N.E.2d 407,

       210 (Ind. 1987) (emphasis added).


[20]   In Day, our Supreme Court explained as follows as respects juvenile

       proceedings:


               The details of criminal activity may be used to demonstrate a
               history of criminal activity when a juvenile court has determined
               that those acts were committed. When a juvenile proceeding
               ends without a disposition, the mere fact that a petition was filed
               alleging delinquency does not suffice as proof of a criminal
               history. . . . An adjudication of delinquency is not a fact that can
               be used by a sentencing court to enhance a criminal sentence. . . .
               The adjudication indicates that the history is correct. It elevates
               that history from allegation to fact.


       560 N.E.2d at 643.


[21]   Later, in Fuller v. State, 639 N.E.2d 344, 350 (Ind. Ct. App. 1994), a panel of

       this court held that the trial court did not impermissibly rely on the defendant’s

       juvenile record, because unlike in Day, the record revealed the disposition of the

       juvenile offenses as well as the facts underlying the offenses.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 10 of 14
[22]   In Mitchell v. State, 844 N.E.2d 88, 92 (Ind. 2006), our Supreme Court noted

       that because juvenile adjudications provide juveniles with sufficient procedural

       safeguards, juvenile adjudications may be considered as prior convictions for

       purposes of sentencing adults under Blakely v. Washington, 542 U.S. 296, 124 S.

       Ct. 2531, 159 L. Ed. 2d 403 (2004) (citing Ryle v. State, 842 N.E.2d 320, 322-23

       (Ind. 2005)).


[23]   Here, some of the juvenile history cited in Morrell’s presentence investigation

       report does not indicate either a disposition or an adjudication. Of the juvenile

       offenses for which an adjudication was entered–one count of culpable

       negligence exposing another person to personal injury, one count of possession

       of cannabis as a misdemeanor, one count of possession of cannabis as a felony,

       and one count of purchasing cannabis as a misdemeanor–the report also

       discloses Morrell’s admission to use of illicit or illegally obtained illicit

       substances such as marijuana used recreationally beginning at the age of

       fourteen. He also admitted that drug use has caused problems in his life.

       Therefore, the trial court properly considered the portion of Morrell’s juvenile

       history resulting in adjudications and his supporting admissions to facts about

       his drug use as a juvenile.


[24]   Next, Morrell argues that the trial court was prohibited from considering any of

       his juvenile history because those adjudications were entered in Florida. Under

       Florida law, according to Morrell, a trial court is prohibited from considering a

       defendant’s juvenile history occurring more than three years prior to the

       commission of the instant offense. See Fla. Rule of Criminal Procedure

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 11 of 14
                                     3
       3.701(d)(5)(G) (1993); Puffinberger v. State, 581 So.2d 897, 899 (Fla. 1991) (a

       juvenile record occurring more than three years prior to the current offense (or

       nonscoreable under Florida law) may nonetheless be considered only if it

       “contains dispositions that are the equivalent of adult convictions and only if

       the record is significant. . . .”). The State contends that because this argument

       was not raised and considered in the trial court, it is waived. See Leatherman v.

       State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) (argument not raised in the trial

       court raised for first time on appeal generally not considered). However, our

       Supreme Court has held that “this Court and the Court of Appeals review many

       claims of sentencing error (improper consideration of an aggravating

       circumstance, failure to consider a proper mitigating circumstance, inaccurate

       weighing of aggravating and mitigating circumstances, etc.) without insisting

       that the claim first be presented to the trial judge.” Bell v. State, 59 N.E.3d 959,

       962 (Ind. 2016) (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005)).


[25]   Indiana Code section 35-38-1-7.1(a)(2) (2015) provides that when imposing a

       sentence, a trial court may consider that the person has a history of criminal or

       delinquent behavior. There is nothing in the language of the statute that

       prohibits a trial court from considering delinquency adjudications, supported by




       3
         This section refers to sentencing guidelines. The particular subsection defines a defendant’s prior record as
       “any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the
       primary offense. . . . All prior juvenile dispositions that are the equivalent of convictions as defined. .
       .occurring within 3 years of the commission of the primary offense that would have been criminal if
       committed by an adult, shall be included in prior record.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019                  Page 12 of 14
       underlying facts, or adult criminal convictions entered in other states. We

       decline to read such a restriction into the statute.


[26]   Further, the trial court’s sentencing decision is supported by other aggravating

       factors that were properly identified. Morrell’s adult criminal history consists of

       misdemeanor convictions for trespass, disorderly conduct, and domestic

       battery. He has prior felony convictions for assault and strangulation. He has

       had five petitions to revoke probation filed against him, with two pending.

       Additionally, the trial court identified as an aggravating circumstance Morrell’s

       history of illegal alcohol and drug use. Morrell admitted to consumption of

       alcohol for the first time when he was thirteen years old and to last consuming

       alcohol on April 7, 2017.


[27]   “A trial court may rely upon only one aggravating circumstance to support an

       enhanced sentence.” Veal v. State, 784 N.E.2d 490, 494 (Ind. 2003). Here, the

       trial court had several valid aggravating circumstances upon which to enhance

       Morrell’s sentence. Excluding Morrell’s IRAS, and juvenile contacts not

       reduced to adjudications with supporting facts, the trial court properly found

       that Morrell had a criminal history and a history of illegal alcohol and drug use

       that warranted an enhanced sentence, especially in light of Morrell’s admission

       that he was under the influence of at least drugs, if not alcohol as well, when he

       committed the instant offense. We do not find that the trial court abused its

       discretion by imposing an enhanced sentence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 13 of 14
                                                Conclusion
[28]   The trial court erred by labeling Morrell’s IRAS as an aggravating factor.

       However, the trial court was not prohibited from considering that score along

       with Morrell’s criminal history when imposing a sentence. Indiana precedent

       allows a trial court to consider juvenile adjudications with supporting facts as a

       criminal conviction for purposes of review of a defendant’s criminal history. A

       trial court is not prohibited by statute from considering juvenile adjudications

       from other states when reviewing a defendant’s criminal history. Morrell’s

       criminal history and admission of his history of illegal alcohol and drug use

       warrant his enhanced sentence.


[29]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019   Page 14 of 14
