MEMORANDUM DECISION                                                               FILED
                                                                             Apr 13 2016, 5:35 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
regarded as precedent or cited before any                                        Court of Appeals
                                                                                   and Tax Court

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
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Moore,                                            April 13, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         16A05-1509-CR-1530
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew D.
Appellee-Plaintiff.                                      Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1502-F4-108



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016                 Page 1 of 6
[1]   Following a guilty plea, Thomas Moore was convicted of two counts of Level 5

      felony Fraud on a Financial Institution, one count of Level 5 felony Criminal

      Conversion, two counts of Level 6 felony Theft, one count of Level 6 felony

      Possession of Methamphetamine, and one count of class B misdemeanor

      Possession of Marijuana. He also admitted to being a habitual offender.

      Moore received an aggregate sentence of twelve years, with one year suspended

      to probation. On appeal, Moore argues that his sentence is inappropriate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On February 24, 2015, Moore was captured on surveillance video entering the

      home of his ninety-one-year-old grandfather, Paul Ricke. Upon entering the

      home, Moore stole several checks from his grandfather’s checkbook. He then

      entered the bedroom where his grandfather was sleeping and stole cash from his

      wallet. Moore then stole Ricke’s van and drove to Ricke’s bank, where he

      cashed a forged check for $500. Moore was arrested the next day when he

      attempted to cash another forged check for nearly $2000. When Moore was

      arrested, police found marijuana and methamphetamine in the stolen van.


[4]   The State charged Moore with multiple offenses, and he ultimately agreed to

      plead guilty to the charges set forth above. In exchange for Moore’s guilty plea,

      the State agreed to dismiss an additional Level 4 felony burglary charge.

      Pursuant to the plea agreement, all sentences were to be served concurrently

      and Moore was to receive an aggregate sentence between ten and twelve years,

      Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016   Page 2 of 6
      with the decision to suspend any portion of the sentence left to the trial court’s

      discretion. In accordance with the plea agreement, the trial court sentenced

      Moore to six years for each of his Level 5 felony convictions. The court

      enhanced one of those convictions by six years, with one year suspended to

      probation, based on the habitual offender adjudication. Also in accordance

      with the plea agreement, the trial court sentenced Moore to twenty-six months

      for each of his Level 6 felony convictions and one hundred eighty days for his

      class B misdemeanor conviction, and ordered that all sentences were to run

      concurrently. Thus, Moore received an aggregate sentence of twelve years with

      one year suspended to probation. Moore now appeals.


                                          Discussion & Decision


[5]   Moore argues that his sentence is inappropriate. Article 7, section 4 of the

      Indiana Constitution grants our Supreme Court the power to review and revise

      criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.

      denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme

      Court authorized this court to perform the same task. Cardwell v. State, 895

      N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if

      after due consideration of the trial court’s decision, the Court finds that the

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

      of the offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

      7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

      court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Robinson bears the

      burden on appeal of persuading us that his sentence is inappropriate. See id.

      Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016   Page 3 of 6
[6]   The determination of whether we regard a sentence as inappropriate “turns on

      our sense of the culpability of the defendant, the severity of the crime, the

      damage done to others, and myriad other factors that come to light in a given

      case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

      N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

      leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

      not our goal in this endeavor to achieve the perceived “correct” sentence in

      each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

      Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

      the question is whether the sentence imposed is inappropriate.” King v. State,

      894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Additionally,

      “appellate review should focus on the forest—the aggregate sentence—rather

      than the trees—consecutive or concurrent, number of counts, or length of the

      sentence on any individual count.” Cardwell, 895 N.E.2d at 1225.


[7]   Moore was convicted of three Level 5 felonies, 1 three Level 6 felonies,2 and one

      class B misdemeanor,3 and he was adjudicated a habitual offender.4 Pursuant to

      the terms of the plea agreement, the applicable sentencing range was ten to twelve




      1
       The statutory range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind.
      Code § 35-50-2-6(b).
      2
       The statutory range for a Level 6 felony is six months to two and one-half years, with an advisory sentence
      of one year. I.C. § 35-50-2-7(b).
      3
          The maximum sentence for a class B misdemeanor is 180 days. I.C. § 35-50-3-3.
      4
       Because the habitual offender enhancement was attached to a Level 5 felony conviction, the applicable
      enhancement range was two to six years. See I.C. § 35-50-2-8.

      Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016               Page 4 of 6
      years, and the decision to suspend any portion of the sentence was left to the trial

      court’s discretion. The trial court imposed an aggregate sentence of twelve years

      with one year suspended to probation.


[8]   Considering the nature of the offenses, we note that Moore victimized his elderly

      grandfather by entering his home while he was asleep and stealing checks, cash,

      and his van. Moore successfully cashed one forged check and was arrested while

      attempting to cash a second check the next day. Moreover, Moore possessed

      marijuana and methamphetamine at the time of these offenses. The nature of

      the offenses in this case is contemptible and supports the imposition of an

      enhanced sentence.


[9]   Considering the character of the offender, we note that Moore has a lengthy

      criminal history, which would be sufficient standing alone to justify the sentence

      imposed. Thirty-one-year-old Moore has amassed seven felony convictions, six

      of which involve theft, fraud, or forgery. At his sentencing hearing, Moore

      testified that in his adult life, the longest he has gone without serving time on an

      offense was one year. Although we acknowledge that Moore apparently has a

      substance abuse problem, Moore admitted that he has undergone court-ordered

      treatment in the past but that he did not put effort into those programs and that

      he has never voluntarily sought out treatment for himself. See Caraway v. State,

      959 N.E.2d 847, 852 (Ind. Ct. App. 2011) (holding that substance abuse may be

      considered an aggravating circumstance where the defendant is aware of his

      addiction and does not seek treatment), trans. denied. Under these facts and



      Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016   Page 5 of 6
       circumstances, we cannot conclude that Moore’s twelve-year aggregate sentence,

       with one year suspended to probation, was inappropriate.


[10]   Judgment affirmed.


[11]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 16A05-1509-CR-1530 | April 13, 2016   Page 6 of 6
