                                                                              FILED
                                                                       Sep 11 2017, 5:30 am

                                                                              CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
Ball Eggleston, P.C.                                      Attorney General
Lafayette, Indiana
                                                          Laura R. Anderson
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Shannon D. Moyer,                                         September 11, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A04-1703-CR-477
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Steven P. Meyer,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause Nos.
                                                          79D02-1603-F4-7
                                                          79D02-1603-F6-225



Crone, Judge.




Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017                     Page 1 of 14
                                              Case Summary
[1]   Facing charges under three separate causes, Shannon D. Moyer pled guilty

      pursuant to a single plea agreement to three felony offenses and a habitual

      offender count. Sentencing was left to the trial court’s discretion, and the trial

      court sentenced him to an aggregate term of twenty years. In this consolidated

      appeal, Moyer challenges the portion of his sentence attributable to the offenses

      in one of the three causes, claiming that the trial court abused its discretion in

      its treatment of aggravating and mitigating factors during sentencing and that

      his sentence is inappropriate in light of the nature of the offenses and his

      character. He also contends that the trial court erred in calculating his jail time

      credit. As a preliminary matter, we find that Indiana precedent requires our

      review of Moyer’s entire sentence, not merely a portion of it. Concluding that

      the trial court neither abused its discretion nor imposed an inappropriate

      sentence, we affirm his twenty-year aggregate sentence. However, we remand

      for an adjustment to his jail time credit.


                                  Facts and Procedural History
[2]   On November 6, 2015, Moyer accompanied Kathy Jo Adams to a discount

      store in Lafayette and gave her money to purchase a shotgun. On the purchase

      form, Adams stated that she was not acquiring the firearm for another person.

      After they left the store, she gave the shotgun to Moyer, who was not permitted

      to possess a firearm due to a 2002 class B felony conviction for dealing in a

      controlled substance. Adams was later convicted on charges related to the

      purchase of the shotgun.

      Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 2 of 14
[3]   On November 16, 2015, Indiana Department of Natural Resource (“DNR”)

      officers were patrolling a wooded area in Tippecanoe County and saw Moyer’s

      truck nearby. It was deer season, and the officers looked inside the truck and

      observed, in plain view, various items related to hunting. Shortly thereafter,

      Moyer came out of the woods, and the officers approached him. Moyer

      admitted to walking on the property but denied hunting. Upon further

      investigation, the officers located a 12-gauge shotgun hidden under a pile of tree

      limbs and leaves within the wooded area. Appellant’s App. Vol. 2 at 70, 138.

      Moyer denied that the shotgun belonged to him. Officers later obtained

      surveillance footage showing Moyer accompanying Adams to the discount

      store for the purchase of the firearm.


[4]   In 2016, Moyer and his girlfriend (“Girlfriend”) co-parented their two-year old

      son and Girlfriend’s nine-year old daughter. One day in March 2016, Moyer

      was babysitting the children while he was under the influence of amphetamines

      and marijuana. According to Girlfriend’s daughter, Moyer took the children to

      get ice cream and was swerving as he drove. He eventually hit a curb and some

      poles, and the vehicle came to a stop. He exited the vehicle and kept nodding

      off and falling down in the middle of the road. The young girl helped him get

      up and out of the roadway. She later told officers that she was “really scared”

      and “worried” for the two-year-old’s life, so she got him out of the vehicle and

      knocked on doors until someone answered so that she could ask for directions

      home. Id. at 146-47. Police eventually found Moyer passed out in a wooded




      Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 3 of 14
      area nearby and transported him to a hospital, where he tested positive for

      amphetamines and cannabinoids.


[5]   In March 2016, the State charged Moyer in Cause 79D02-1603-F6-225 (“Cause

      225”) with level 6 felony neglect of a dependent, level 6 felony possession of

      methamphetamine, class A misdemeanor possession of a schedule IV

      controlled substance, class A misdemeanor possession of paraphernalia, level 6

      felony operating a vehicle while intoxicated (“OWI”) with a minor passenger in

      vehicle, class A misdemeanor OWI, class C misdemeanor OWI while having a

      schedule I or II controlled substance in the body, and class A misdemeanor

      operating a vehicle while suspended. Later that month, the State charged

      Moyer in Cause 79D02-1603-F4-7 (“Cause 7”), with level 4 felony unlawful

      possession of a firearm by a serious violent felon (“SVF”) and filed a habitual

      offender information.


[6]   In January 2017, Moyer pled guilty via open plea agreement to level 6 felony

      neglect of a dependent and level 6 felony OWI with a minor passenger in Cause

      225 and level 4 felony SVF firearm possession in Cause 7. He admitted to

      being a habitual offender in Cause 7 in exchange for dismissal of all remaining

      charges in Cause 225 and dismissal of a third cause against him, 79D05-1603-

      F6-288 (“Cause 288”), which included one count of auto theft and one count of

      check deception, both as level 6 felonies. The trial court sentenced him in

      Cause 225 to concurrent terms of one year for neglect of a dependent and two

      years for OWI with a minor passenger. In Cause 7, the trial court imposed a

      ten-year sentence on the SVF count and a habitual offender enhancement of

      Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 4 of 14
      eight years, with fourteen years executed, two years in community corrections,

      and two years’ probation. The trial court ordered that the sentences in the two

      causes run consecutive to each other, for an aggregate sentence of twenty years.


[7]   Moyer filed a notice of appeal in Cause 7 and a petition for belated appeal in

      Cause 225, which was granted. He subsequently filed a petition to consolidate

      the appeals, which also was granted. Additional facts will be provided as

      necessary.


                                      Discussion and Decision

      Section 1 – We must review Moyer’s aggregate sentence for all
                   offenses under the plea agreement.
[8]   As a preliminary matter, we observe that Moyer appears to challenge only the

      portion of his sentence attributable to Cause 7, i.e., the SVF conviction with

      habitual offender enhancement. In Webb v. State, 941 N.E.2d 1082, 1087-88

      (Ind. Ct. App. 2011), trans. denied, we held that a defendant may not limit our

      review of his sentence by merely challenging an individual sentence within a

      single order that includes multiple sentences. There, the defendant pled guilty

      without a plea agreement to robbery, six counts of fraud, and three additional

      counts in one cause, and misdemeanor OWI from a separate but consolidated

      cause. Id. at 1084-85. On appeal, he challenged only his twenty-year

      maximum sentence for robbery rather than his twenty-five-year aggregate

      sentence. Id. at 1085. In holding that our review could not be so limited, we

      relied on Cardwell v. State, 895 N.E.2d 1219, 1224-25 (Ind. 2008), where our


      Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 5 of 14
      supreme court emphasized the importance of focusing our review on the

      aggregate sentence rather than the length of the sentence on an individual

      count. Webb, 941 N.E.2d at 1087-88.


[9]   Here, the trial court issued separate sentencing orders for Causes 225 and 7 and

      ordered that the sentences run consecutively. Notwithstanding the separate

      sentencing orders, Moyer pled guilty pursuant to a single plea agreement that

      covered three separate causes against him. The plea agreement is captioned

      with all three cause numbers and articulates the convictions or dismissal of

      counts under each. Appellant’s App. Vol. 2 at 90. Specifically, in exchange for

      Moyer’s guilty plea to a total of three counts plus a habitual offender count,

      Cause 288 was dismissed in its entirety, and the remaining six counts were

      dismissed under Cause 225. To review his sentence only with respect to the

      SVF and habitual offender counts, as he suggests, would essentially amount to

      ignoring important aspects of the contract between the parties, such as the

      substantial benefit that he received in exchange for his guilty plea. The plea

      agreement represented a single transaction that “embodie[d] the entire

      agreement between the parties.” Id. We believe that the reasoning in Cardwell

      and Webb extends to circumstances such as these where a defendant pleads

      guilty via a single plea agreement to offenses charged under separate cause

      numbers. We review Moyer’s aggregate twenty-year sentence accordingly.




      Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 6 of 14
          Section 2 – The trial court acted within its discretion in its
            treatment of aggravating and mitigating factors during
                                  sentencing.
[10]   Moyer challenges the trial court’s treatment of aggravating and mitigating

       factors during sentencing. Sentencing decisions rest within the sound discretion

       of the trial court, and as long as a sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d

       482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion

       occurs where the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances before it, or the reasonable, probable, and actual

       deductions to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind.

       Ct. App. 2014).


[11]   One of the ways in which a trial court may abuse its discretion in sentencing is

       by relying on reasons that are improper as a matter of law. Anglemyer, 868

       N.E.2d at 490-91. “Under those circumstances, remand for resentencing may

       be the appropriate remedy if we cannot say with confidence that the trial court

       would have imposed the same sentence had it properly considered reasons that

       enjoy support in the record.” Id. at 491. When a trial court improperly applies

       an aggravator but other valid aggravating circumstances exist, a sentence may

       still be upheld. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016),

       trans. denied (2017).


[12]   Moyer asserts that the trial court relied on an aggravator that is improper as a

       matter of law. He bases this argument on the trial court’s statement that it

       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 7 of 14
       considered as an aggravator the probation department’s determination that he

       was “at a high risk to reoffend.” Tr. Vol. 2 at 64. See also Appellant’s App. Vol.

       2 at 129 (probation department’s risk assessment showing him to be in “HIGH

       risk category to reoffend.”). Our supreme court has held that “offender

       recidivism risk assessment instruments do not function as aggravating or

       mitigating circumstances for the purpose of determining the length of sentence

       appropriate for each defendant.” J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010).

       Nevertheless, the J.S. court explained that risk assessment scores are

       “appropriate supplemental consideration in judicial sentencing proceedings.”

       Id. (citing Malenchik v. State, 928 N.E.2d 564, 573 (Ind. 2010)).


[13]   Based on our review of the record, we believe that the trial court’s comments

       about Moyer’s risk assessment scores were supplemental to the factors

       articulated in its written sentencing orders. In those orders, the trial court

       identified as aggravating factors Moyer’s criminal history, the repeat nature of

       his offenses, his history of probation violations and revocations, his violation of

       pretrial release, the seriousness of his offenses, and his attempts to minimize his

       role in the SVF count. Appellant’s App. Vol. 2 at 97, 104. The court identified

       as mitigating factors his guilty plea (though diminished by his receipt of benefits

       under the plea agreement), his expressions of remorse, his good employment

       history, and his substance abuse issues (though diminished by his failure to take

       advantage of treatment opportunities). Id. at 98, 104. If the trial court had

       intended to identify Moyer’s risk assessment score as an aggravator, it would

       have listed it as such in the written orders. We believe that, read in context, the


       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 8 of 14
       court’s oral comments were merely supplemental to the aggravating factors of

       Moyer’s extensive criminal history and numerous probation failures. Even if

       the trial court improperly considered the risk assessment, we are confident,

       based on the quantity and gravity of the other aggravating factors, that the trial

       court would have imposed the same sentence without it.


[14]   Finally, to the extent that Moyer appears to argue that the trial court placed too

       much emphasis on factors such as his criminal record and too little emphasis on

       his guilty plea, employment history, and family circumstances, we remind him

       that such considerations are unavailable for appellate review. See Anglemyer,

       868 N.E.2d at 491 (“The relative weight or value assignable to reasons properly

       found or those which should have been found is not subject to review for abuse

       [of discretion].”). Moyer has failed to establish an abuse of discretion.


       Section 3 – Moyer has failed to meet his burden of establishing
        that his sentence is inappropriate in light of the nature of the
                          offenses and his character.
[15]   Moyer also asks that we review and revise his sentence pursuant to 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.” 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, we may consider

       all aspects of the penal consequences imposed by the trial court in sentencing,

       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 9 of 14
       i.e., whether it consists of executed time, probation, suspension, home

       detention, or placement in community corrections, and whether the sentences

       run concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025

       (Ind. 2010). 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.” Fonner v. State, 876 N.E.2d 340, 344

       (Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court

       that his sentence meets the inappropriateness standard. Anglemyer, 868 N.E.2d

       at 490.


[16]   In considering the nature of Moyer’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Id. at

       494. When determining the appropriateness of a sentence that deviates from an

       advisory sentence, we consider whether there is anything more or less egregious

       about the offense as committed by the defendant that “makes it different from

       the typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[17]   To the extent that Moyer confines his appropriateness challenge to the eighteen-

       year portion of his sentence attributable to Cause 7, we reiterate that he cannot

       confine our review to a portion of his aggregate sentence. See Webb, 941 N.E.2d

       at 1087-88. Moyer’s aggregate twenty-year sentence comprises concurrent one-

       and two-year terms for his two level 6 felony convictions; a ten-year term for his

       level 4 felony SVF conviction, with an additional eight years for the habitual

       offender finding, with fourteen of the eighteen years executed, two years in

       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 10 of 14
       community corrections, and two years suspended; and with the eighteen years

       to run consecutive to the two-year term for the level 6 felonies. A level 6 felony

       carries a sentencing range of six months to two and one-half years, with an

       advisory term of one year. Ind. Code § 35-50-2-7(b). The sentencing range for

       a level 4 felony is two to twelve years, with an advisory term of six years. Ind.

       Code § 35-50-2-5.5. For a person convicted of murder or a level 1 through level

       4 felony and found to be a habitual offender, the trial court shall impose an

       additional fixed, nonsuspendible term between six and twenty years. Ind. Code

       § 35-50-2-8(i)(1).


[18]   The circumstances surrounding Moyer’s neglect and OWI offenses are

       troubling. First, he was under the influence of amphetamines and marijuana

       while babysitting his two-year-old son and Girlfriend’s nine-year-old daughter.

       He drove the children on an excursion for ice cream, weaving and eventually

       crashing his vehicle. After that, he did not attend to the children, but instead

       exited the vehicle, fell down in the street, and was later found unconscious in

       the woods nearby. He essentially left the children to fend for themselves, and

       they had to knock on the doors of strangers for help.


[19]   With respect to Moyer’s level 4 felony SVF and habitual offender counts, we

       note that although his sentence exceeds the level 4 felony advisory term by four

       years, his habitual offender enhancement, only two years above the mandatory

       minimum fixed additional term, suggests leniency. Moyer correctly asserts that

       his SVF offense was not particularly egregious in scope or duration. He

       unlawfully possessed a shotgun that he was using to hunt deer, not to commit a

       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 11 of 14
       violent crime. However, our analysis cannot end there. Moyer acquired the

       shotgun through deceptive means, enlisting a straw purchaser whom he

       induced to make false statements on the firearm purchase form, thereby

       subjecting her to prosecution. Moreover, his argument concerning the short

       duration of his unlawful possession, ten days, is not particularly persuasive, as it

       was the DNR officers’ seizure of the shotgun that precipitated his loss of

       possession of it. His conduct in hiding the shotgun beneath leaves and branches

       and lying to DNR officers that the shotgun was not his demonstrates his intent

       to conceal the shotgun and maintain unlawful possession of it. These

       circumstances speak not only to the nature of Moyer’s offenses but also to his

       character.


[20]   We conduct our review of a defendant’s 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. Moyer admits that his

       criminal record reflects poorly on his character but asks that we consider that

       his ten felony and eight misdemeanor convictions are, by and large, “low-level”

       offenses and mostly related to his substance abuse issues. Appellant’s Br. at 15.

       However, his criminal history, beginning at age fifteen, includes not only a

       plethora of drug charges and convictions, but also convictions for OWI,

       resisting law enforcement, property offenses, and battery resulting in bodily

       injury. In reviewing his record, we find that the only significant timeframes in

       which he was not facing criminal charges are those when he was incarcerated.

       In other words, Moyer is a career criminal. He has had ten probation


       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 12 of 14
       revocations filed against him, four of which resulted in revocation and several

       others that were disposed of by plea agreements. In short, prior attempts at

       leniency simply have not worked.


[21]   Moyer characterizes himself as a good father with a strong employment record,

       who should be granted leniency due to the hardship of his incarceration on his

       family. Although we appreciate his desire to work and provide for his family,

       we note that any incarceration is likely to produce some hardship for the family.

       When it comes to Moyer’s claims of good parenting, his conduct while

       babysitting his toddler son and Girlfriend’s nine-year-old child simply cannot be

       ignored. He compounded one poor decision, taking amphetamines and

       marijuana, with other poor decisions such as driving the children while under

       the influence of those drugs and, after crashing his vehicle, leaving the children

       in a precarious situation in which the nine-year-old had to assume the role of

       caretaker for the two-year-old. We also note, as did the trial court, that Moyer

       has not availed himself of opportunities for substance abuse treatment, which

       could have helped him become a more responsible father. Moyer’s

       employment history is not as solid as he portrays it to be. Although he has

       experienced brief stints of success in a few jobs, he has failed to maintain long-

       term success in the workplace, due largely to his substance abuse and criminal

       activity resulting in incarceration. In sum, Moyer has failed to meet his burden

       of establishing that his twenty-year aggregate sentence is inappropriate in light

       of the nature of his offenses and his character. Therefore, we affirm it.




       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 13 of 14
        Section 4 – The trial court miscalculated Moyer’s credit time
                                in Cause 225.
[22]   Finally, Moyer asserts, and the State concedes, that he is entitled to two

       additional days of jail time credit in Cause 225. Presentence jail time credit is a

       matter of statutory right, not subject to judicial discretion. Hall v. State, 944

       N.E.2d 538, 542 (Ind. Ct. App. 2011), trans. denied. Here, the parties relied on

       the “actual jail days” as 188 days, per the presentence investigation report

       (“PSI”). Appellant’s App. Vol. 2 at 117. However, this calculation

       presupposed a sentencing date of February 8, 2017, when in fact, after the PSI

       was prepared, Moyer’s sentencing hearing was rescheduled and held on

       February 10, 2017. This means that Moyer was confined for two additional

       days for which he did not receive credit. As such, we remand with instructions

       to adjust Moyer’s jail time credit accordingly.


[23]   Affirmed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017   Page 14 of 14
