MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Mar 27 2020, 9:11 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
Kay A. Beehler                                           Curtis T. Hill, Jr.
Attorney at Law                                          Attorney General of Indiana
Terre Haute, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Sturgeon-Morris, Jr.,                               March 27, 2020
Appellant-Defendant,                                     Court of Appeals Case
                                                         No. 19A-CR-2824
        v.                                               Appeal from the
                                                         Greene Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Dena A. Martin, Judge
                                                         Trial Court Cause No.
                                                         28D01-1904-F3-4



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020             Page 1 of 4
                                          Case Summary
[1]   Gary Sturgeon-Morris, Jr., appeals his five-and-a-half-year sentence for Level 5

      felony possession of methamphetamine, challenging the trial court’s finding of

      aggravators and mitigators. We affirm.



                            Facts and Procedural History
[2]   On April 12, 2019, a Greene County sheriff’s deputy pulled Sturgeon-Morris

      over. At the time, Sturgeon-Morris was on probation and had a suspended

      license and an outstanding warrant. He was arrested, and an inventory search

      of his car yielded methamphetamine, zip lock bags, digital scales, syringes, and

      a rifle.


[3]   The State charged Sturgeon-Morris with Level 3 felony dealing in

      methamphetamine, Level 6 felony possession of a syringe, Level 6 felony

      identity deception, and Class A misdemeanor driving while suspended. A few

      months later, Sturgeon-Morris agreed to plead guilty to an added count—Level

      5 felony possession of methamphetamine—in exchange for the dismissal of the

      four original charges and Cause Number 28D01-1902-F6-49 (in which

      Sturgeon-Morris was charged with Level 6 felony possession of

      methamphetamine). Sentencing was left to the discretion of the trial court,

      except that the court was required to recommend Sturgeon-Morris for

      enrollment in a program called Recovery While Incarcerated (“RWI”).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020   Page 2 of 4
[4]   In sentencing Sturgeon-Morris, the trial court identified three aggravating

      circumstances: Sturgeon-Morris’s criminal history, which includes a felony

      burglary conviction in 2010 and a felony fraud conviction in 2017; the fact that

      Sturgeon-Morris was on probation at the time of this offense; and the fact that

      Sturgeon-Morris has done poorly on probation in the past. In discussing

      Sturgeon-Morris’s criminal history, the court included “things that have been

      dismissed[.]” Tr. p. 23. The court found Sturgeon-Morris’s guilty plea and

      acceptance of responsibility to be a mitigating circumstance. The court

      imposed an above-advisory sentence of five-and-a-half years in the Department

      of Correction but recommended Sturgeon-Morris for RWI and said it would

      consider a sentence modification upon successful completion of that program.


[5]   Sturgeon-Morris now appeals.



                                Discussion and Decision
[6]   Sturgeon-Morris first contends that the trial court erred by including in its

      consideration of aggravating circumstances the existence of prior criminal

      charges that were dismissed. But as the State notes, Indiana’s appellate courts

      have repeatedly recognized that a record of arrests and criminal charges is

      relevant to sentencing because its reveals that “subsequent antisocial behavior

      on the part of the defendant has not been deterred even after having been

      subject to the police authority of the State and made aware of its oversight of

      the activities of its citizens.” Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991);

      see also Pickens v. State, 767 N.E.2d 530, 534 (Ind. 2002); Monegan v. State, 756

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020   Page 3 of 4
      N.E.2d 499, 503 (Ind. 2001); Zavala v. State, 138 N.E.3d 291, 301 (Ind. Ct. App.

      2019), trans. denied. Sturgeon-Morris makes no effort to distinguish that

      caselaw, and he does not cite any caselaw to the contrary. As such, we cannot

      say that the trial court erred in this regard.


[7]   Sturgeon-Morris also argues that the trial court should have found “his remorse,

      and more importantly, [his] desire to change the trajectory of his life and

      behavior” to be a mitigating factor. Appellant’s Br. p. 6. We first note that

      Sturgeon-Morris did not ask the trial court to find this mitigator, so his

      argument is waived. See Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Waiver notwithstanding, his

      argument fails. The only evidence Sturgeon-Morris cites is his own testimony

      that he knows he has a drug problem, that he wants to get help, and that he

      wants to be able to support his children. We are confident that the trial court

      had this testimony in mind when it found as a mitigator that Sturgeon-Morris

      was accepting responsibility.


[8]   Affirmed.


      May, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020   Page 4 of 4
