Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Oct 07 2014, 9:01 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:

JEREMY K. NIX                                       GREGORY F. ZOELLER
Matheny, Hahn, Denman, & Nix, LLP                   Attorney General of Indiana
Huntington, Indiana

                                                    CHANDRA K. HEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAWN L. MOORE,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 90A02-1401-CR-19
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE WELLS CIRCUIT COURT
                          The Honorable Kenton W. Kiracofe, Judge
                               Cause No. 90C01-1307-FD-87


                                         October 7, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

          Shawn Lee Moore (“Moore”) appeals his sentence for Class B felony unlawful

possession of a firearm by a serious violent felon1 and Class C felony corrupt business

influence.2 On appeal, Moore essentially argues that the trial court abused its discretion by

not suspending a portion of his sentence to probation. Concluding that the record supports

Moore’s executed sentence and that Moore does not have a right to probation, we find that

the trial court did not abuse its discretion.

          We affirm.

                                                  ISSUE

                 Whether the trial court abused its discretion in sentencing Moore.

                                                  FACTS

          During June of 2013, Moore and Amanda Johnson drove to various locations in

Steuben, Adams, and Wells Counties and broke into ten vehicles, stealing various items.

The stolen items were recovered in Moore’s vehicle, which at the time was located in Wells

County. Law enforcement officers also found a handgun in Moore’s vehicle.

          On July 1, 2013, the State charged Moore with eight (8) counts of Class D felony

receiving stolen property.3 The State later amended the charging information to include



1
  IND. CODE § 35-47-4-5 (2013). We note that effective July 1, 2014, a new version of this serious violent
felon statute was enacted and that Class B felony possession of a firearm by a serious violent felon is now
a Level 5 felony. Because Moore committed his offenses in 2013, we will apply the statute in effect at that
time.
2
    I.C. § 35-45-6-2.
3
 I.C. § 35-43-4-2(b) (2013). Again, we note that effective July 1, 2014, a new version of this theft/receiving
stolen property statute was enacted and that Class D felony theft/receiving stolen property is now a Class
                                                      2
one (1) count of theft,4 three (3) counts of Class C felony corrupt business influence, and

one (1) count Class B felony unlawful possession of a firearm by a serious violent felon.

          On September 12, 2013, Moore pled guilty to one count of corrupt business

influence and the serious violent felon charge. The plea agreement provided that Moore’s

sentence would be capped at eighteen (18) years, that the sentence for the two charges

would run concurrently, and that the State would dismiss the remaining charges. On

December 18, 2013, the trial court held a sentencing hearing where Moore argued that the

trial court should suspend a portion of his sentence to probation. After hearing arguments

from counsel and reading the pre-sentence investigation report, the trial court sentenced

Moore to concurrent terms of sixteen (16) years on the serious violent felon conviction and

eight (8) years on the corrupt business influence conviction, with no time suspended.

Moore now appeals.

                                             DECISION

          Moore argues that the trial court abused its discretion in sentencing him by ignoring

evidence supporting his request to suspend a portion of his sentence to probation.

Specifically, Moore argues that (1) he accepted responsibility for his actions by pleading

guilty; (2) he was likely to respond affirmatively to probation because he had successfully

completed probation in the past; (3) his crimes were the result of a recent drug addiction;




A misdemeanor. Because Moore committed his offenses in 2013, we will apply the statute in effect at that
time.
4
    I.C. § 35-43-4-2(a) (2013).
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and (4) he obtained his GED and completed some college level courses while previously

incarcerated.

       Notwithstanding the authority afforded to appellate courts by Indiana Appellate

Rule 7(B), “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.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,

473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in

sentencing a defendant by: (1) failing to enter a sentencing statement; (2) entering a

sentencing statement that explains reasons for imposing the sentence but the record does

not support the reasons; (3) omitting reasons that are clearly supported by the record and

advanced for consideration; or (4) imposing a sentence for reasons that are improper as a

matter of law. Anglemyer, 868 N.E.2d at 490.

       During Moore’s sentencing hearing, the trial court explained its reasoning for

imposing Moore’s sixteen (16) year executed sentence as follows:

       The Court has reviewed the presentence investigation report, also reviewed the
       probable cause affidavit and sentencing factors found at Indiana Code 35-38-1-7.1.
       Essentially the aggravating factors the Court notes the Defendant does have a
       history of criminal and delinquent behavior of note which was interesting in the
       presentence investigation report that since, the Defendant is 36 years of age, but
       since age 12 he has been supervised or incarcerated for all but 6-1/2 years, that’s a
       sad situation Mr. Moore. The Court notes the Defendant was also determined to be
       a very high risk to reoffend by the IRAS indicators. I don’t find any statutory
       mitigating factors, but I do give Mr. Moore some consideration for the fact that he

                                               4
       has pled guilty and note there were a number of charges and I think counsel for
       Defendant is correct, a trial in this matter would have been lengthy although the
       evidence it appears through the probable cause affidavit there was evidence that
       would have convicted Mr. Moore and so he has pled guilty in light of that, but has
       accepted responsibility for his actions and so the Court gives him some
       consideration for that.

       It’s concerning that Mr. Moore after being charged and convicted and sentenced and
       served a sentence for conspiracy to commit murder then has not only committed a
       number of thefts, but also has a firearm in his possession. He disputes how that
       happened. I think the evidence is such that he probably was well aware that he had
       that gun.

       Under Count IX, the Corrupt Business Influence, a class C felony, the Court is going
       to sentence the Defendant to 8 years at the Indiana Department of Corrections with
       no part suspended. Under Count X, the Court is bound by the cap of 18 years, the
       Defendant has received some benefit from the plea agreement, could have been
       sentenced up to 20 years, has received some benefit. It’s hard not to argue that Mr.
       Moore isn’t among what is considered some of the worst of the worst which the
       highest penalties are reserved for. He has had several years of different levels of
       supervision or incarceration, none of which thus far have seemed to assist Mr.
       Moore in making any changes in his lifestyle and what he is doing. If it was the
       thefts alone it would be one thing, the fact that he as an adult suddenly decided to
       start using methamphetamine is concerning, concerning about his decision making
       and what he chooses to do. I can’t say that probation is appropriate in any case or
       can’t say probation is appropriate in this case just because I don’t think he would be
       successful in completing it. All those factors considered together I’m going to
       sentence the Defendant to 16 years under Count X, that is to be served concurrently
       with the sentence under Count IX. No part of that sentence is to be suspended. I
       am going to recommend the Defendant be considered for the CLIFF program while
       at the Department of Corrections to address the methamphetamine abuse. I’m also
       going to assess court costs of $168.00, I’m not assessing any fine nor am I assessing
       a public defender fee.

(Tr. 6-7).

       Here, we find the trial court did not abuse its discretion. As the trial court noted,

Moore has been incarcerated or under court supervision for a majority of his life and has

not altered his behavior. The record, particularly Moore’s criminal history, does not

support his argument for a suspended sentence. See Anglemyer, 868 N.E.2d at 490.

                                             5
Moreover, “probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). In

addition, while a trial court may consider whether a person would respond affirmatively to

probation, “[a] court may impose any sentence that is: (1) authorized by statue; and (2)

permissible under the Constitution of the State of Indiana; regardless of the presence or

absence of aggravating circumstances or mitigating circumstances.” IND. CODE §§ 35-38-

1-7.1(b)(7); (d). Thus, even if the record supported Moore’s assertion that he was a good

candidate for probation, the trial court was free to sentence him without any time suspended

to probation. See id. Accordingly, we find no abuse of discretion and affirm Moore’s

sentence.

       Affirmed.

NAJAM, J., and BAILEY, J., concur.




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