MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be                                             Oct 31 2019, 7:51 am
regarded as precedent or cited before any                                             CLERK
court except for the purpose of establishing                                      Indiana Supreme Court
                                                                                     Court of Appeals
the defense of res judicata, collateral                                                and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John Andrew Goodridge                                    Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General

                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Biggs,                                       October 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-866
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Carl A. Heldt,
Appellee-Plaintiff                                       Senior Judge
                                                         The Honorable Michael J. Cox,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1809-F5-6235



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-866 | October 31, 2019                      Page 1 of 6
                                             Case Summary
[1]   Following a guilty plea, Christopher Biggs was sentenced to 1000 days executed

      for level 5 felony failure to register as a sex offender. He appeals his sentence

      pursuant to Indiana Appellate Rule 7(B). Finding that he has failed to meet his

      burden of demonstrating that his sentence is inappropriate in light of the nature

      of the offense and his character, we affirm.


                                 Facts and Procedural History
[2]   In 2008, Biggs was convicted of class D felony sexual battery. As a result of his

      conviction, he was required to register as a sex offender pursuant to Indiana

      Code Section 11-8-8-17. He executed the registration forms acknowledging his

      awareness of his obligations and duties to register and to re-register in the event

      of an address change. In 2010, 2012, and 2017, he accumulated felony

      convictions for failure to register as required by the statute. In August 2018, a

      law enforcement officer went to Biggs’s most recent registered address and was

      informed by the current residents that Biggs had moved out three months

      before. Biggs’s whereabouts were unknown until September 14, 2018, when he

      was arrested for failure to notify the sheriff’s department of his address change

      within seventy-two hours of such change. Ind. Code § 11-8-8-11.


[3]   The State charged Biggs with level 5 felony failure to register as a sex or violent

      offender (with prior conviction for the same), level 6 felony failure to register as

      a sex or violent offender, and a habitual offender enhancement. Biggs agreed to

      plead guilty, without a written plea agreement, to the level 5 and level 6 felonies


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-866 | October 31, 2019   Page 2 of 6
      in exchange for the dismissal of the habitual offender count. The trial court

      merged the level 6 felony conviction and entered judgment only on the level 5

      felony count. The court sentenced Biggs to 1000 days executed. Biggs now

      appeals his sentence. Additional facts will be provided as necessary.


                                     Discussion and Decision
[4]   Biggs asks that we reduce his sentence pursuant to Indiana Appellate Rule 7(B),

      which states that we “may revise a sentence authorized by statute if, after due

      consideration of the trial court’s decision, [this] Court finds that the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender.” “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). When a defendant requests appellate review

      and revision of his sentence, we have the power to affirm or reduce the

      sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our

      review, our principal role is to leaven the outliers, focusing on the length of the

      sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.

      2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). We do “not

      look to see whether the defendant’s sentence is appropriate or if another

      sentence might be more appropriate; rather, the test is whether the sentence is

      ‘inappropriate.’” Id. at 581 (quoting Barker v. State, 994 N.E.2d 306, 315 (Ind.

      Ct. App. 2013), trans. denied (2014)). The defendant bears the burden of

      persuading this Court that his sentence meets the inappropriateness standard.

      Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-866 | October 31, 2019   Page 3 of 6
[5]   In considering the nature of Biggs’s offenses, “the advisory sentence is the

      starting point the Legislature has selected as an appropriate sentence.” Green v.

      State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). Biggs

      was convicted of level 5 felony failure to register as a sex or violent offender.

      See Ind. Code § 11-8-8-17(a) (“A sex or violent offender who knowingly or

      intentionally … fails to register” when, how, and where the statute requires,

      “makes a material misstatement or omission while registering,” or “does not

      reside at [his] registered address or location” commits a level 6 felony). Biggs’s

      previous unrelated convictions for failure to register as a sex offender account

      for the elevation of his current offense from a level 6 felony to a level 5 felony.

      See Ind. Code § 11-8-8-17(b) (failure to register as a sex offender is level 5 felony

      if offender has a prior unrelated conviction for an offense under the same

      section). A level 5 felony carries a sentencing range of one to six years with an

      advisory term of three years. Ind. Code § 35-50-2-6.


[6]   Here, Biggs was sentenced to 1000 days, or approximately 2.74 years. “[A]

      defendant bears a particularly heavy burden in persuading us that his sentence

      is inappropriate when the trial court imposes the advisory sentence.” Fernbach

      v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. Biggs’s

      burden is even greater here, because his sentence is approximately three months

      below the advisory term. He has not met that heavy burden. The only relevant

      detail of his status offense is that he moved and did not register his change of

      address for three months, well past the seventy-two-hour window for doing so.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-866 | October 31, 2019   Page 4 of 6
      Ind. Code § 11-8-8-11. The nature of Biggs’s offense simply does not militate

      toward a reduced sentence.


[7]   Nor does Biggs’s character. We conduct our review of his character by

      engaging in a broad consideration of his qualities. Aslinger v. State, 2 N.E.3d 84,

      95 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d 571.

      “When considering the character of the offender, one relevant fact is the

      defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.

      App. 2015), trans. denied (2016). Biggs’s criminal record is extensive and spans

      three decades. In addition to his four felony convictions for failure to register as

      a sex offender, he has convictions for class D felony sexual battery (which

      triggered the registration requirement), class C felony burglary, class D felony

      theft, and misdemeanor convictions for sexual battery, conversion, marijuana

      possession, false informing, and driving without a license. He has one

      probation revocation, and the probation department rated him as a high risk to

      re-offend. Appellant’s App. Vol. 2 at 32. His guilty plea saved the State the

      expense of a trial, but it also benefited Biggs in the form of a dismissal of his

      habitual offender count.


[8]   To the extent that Biggs relies on his low mental aptitude scores as an excuse or

      explanation for his failure to register as required by statute, we note that the




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-866 | October 31, 2019   Page 5 of 6
      trial court read the psychologist’s report provided by Biggs, 1 considered the

      information during sentencing, and concluded that Biggs is “low functioning.”

      Tr. Vol. 2 at 18. However, the court also emphasized the psychologist’s

      conclusion that Biggs “is capable of understanding the difference between right

      and wrong and obeying the rules.” Id. While we sympathize with those who

      suffer from attention deficits, we reject Biggs’s characterization of his 1000-day

      sentence as a “de facto sentence of ‘life imprisonment on an installment plan.’”

      Appellant’s Br. at 12. Biggs has failed to meet his burden of demonstrating that

      his sentence is inappropriate. Consequently, we affirm.


[9]   Affirmed.


      Baker, J., and Kirsch, J., concur.




      1
        Neither the psychologist’s report nor any other documents pertaining to Biggs’s mental diagnosis is
      included in the record below as an exhibit or in the presentence investigation report. As such, we have no
      basis for including them in our review, except for certain statements included in the sentencing transcript.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-866 | October 31, 2019                     Page 6 of 6
