      MEMORANDUM DECISION
                                                                              Jun 03 2015, 6:27 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before 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
      Randy M. Fisher                                           Gregory Zoeller
      Deputy Public Defender                                    Attorney General of Indiana
      Leonard, Hammond, Thoma, & Terrill
                                                                George P. Sherman
      Fort Wayne, Indiana
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Fred R. Morris, Jr.,                                     June 3, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A04-1410-CR-506
              v.                                               Appeal from the Allen Superior
                                                               Court
                                                               The Honorable Frances C. Gull,
      State of Indiana,                                        Judge
      Appellee-Plaintiff,                                      Cause No. 02D05-1402-FC-41




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Defendant Fred Morris, Jr., was convicted of Class C felony carrying

      a handgun without a license and Class D felony dealing in a synthetic drug or


      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015             Page 1 of 7
      synthetic drug lookalike substance. Morris was sentenced to an aggregate term

      of six years of incarceration. Morris appeals his sentence, arguing that the trial

      court abused its discretion for failing to consider mitigating factors or

      alternatives to incarceration. Morris also argues that his sentence is

      inappropriate in light of the nature of his offenses and his character. We

      disagree and affirm the Morris’s sentence.



                            Facts and Procedural History
[2]   On the night of February 3, 2014, Fort Wayne Police Officer Cameron Norris

      performed a traffic stop on a 2002 Ford Explorer for failing to have its taillights

      illuminated. Adonis Robinson was driving the vehicle and Morris was riding in

      the front passenger seat. Both Robinson and Morris quickly exited the vehicle

      and Robinson told Officer Norris that he did not have a valid driver’s license

      and that there was no insurance on the vehicle. Upon looking in the vehicle,

      Officer Norris noticed a large clear plastic bag containing a light colored leafy

      substance on the front passenger floor board. The bag was later found to

      contain 81.84 grams of synthetic marijuana substance.


[3]   After placing Robinson and Morris in handcuffs, Officer Norris searched the

      vehicle and found a loaded handgun underneath the front passenger seat. After

      checking its serial number, officers learned that the gun had been reported

      stolen by its owner in 2008. Officer Norris also found a box of plastic sandwich

      bags in the glove compartment.



      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015   Page 2 of 7
[4]   Appellee-Plaintiff the State of Indiana (“the State”) charged Morris with Class

      C felony carrying a handgun without a license1 and Class D felony dealing in a

      synthetic drug or synthetic drug lookalike substance. On September 16, 2014, a

      jury found Morris guilty as charged. Morris was subsequently sentenced to six

      years for carrying a handgun without a license and two years for dealing in a

      synthetic drug to be served concurrently.



                                  Discussion and Decision
[5]   On appeal, Morris claims that (1) the trial court abused its discretion during

      sentencing for failing to recognize mitigating factors or considering alternatives

      to incarceration, and (2) that his sentence is inappropriate in light of the nature

      of the offenses and his character.


                                         Abuse of Discretion
[6]   “[S]entencing 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) decision clarified 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,




      1
       The charge of carrying a handgun without a license was elevated to a Class C felony based on Morris’s
      prior felony conviction for possession of cocaine or narcotic drug. (App. 13)

      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015              Page 3 of 7
      probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.

      State, 849 N.E.2d 538, 544 (Ind. 2006)).

              One way in which a trial court may abuse its discretion is failing to
              enter a sentencing statement at all. Other examples include entering a
              sentencing statement that explains reasons for imposing a sentence—
              including a finding of aggravating and mitigating factors if any—but
              the record does not support the reasons, or the sentencing statement
              omits reasons that are clearly supported by the record and advanced
              for consideration, or the reasons given are improper as a matter of law.
      Id. at 490-91.


[7]   Morris claims that the trial court abused its discretion for failing to identify as

      mitigating factors Morris’s employment history and that his incarceration

      would cause undue hardship on Morris’s dependent children. “An allegation

      that the trial court failed to identify or find a mitigating factor requires the

      defendant to establish that the mitigating evidence is both significant and clearly

      supported by the record.” Id. at 493 (citing Carter v. State, 711 N.E.2d 835, 838

      (Ind. 1999)). However, the trial court is not required to explain why it has

      declined to recognize a particular factor as mitigating. Id. We do not think that

      either proffered mitigating circumstance is significant or supported by the

      record.


[8]   First, the vast majority of able-bodied adults are employed and, as such, simply

      maintaining employment is not a significant mitigating circumstance. This

      court has previously addressed Morris’s argument and found that, “[m]any

      people are gainfully employed such that this would not require the trial court to

      note it as a mitigating factor or afford it the same weight as [Defendant]

      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015   Page 4 of 7
       proposes.” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App. 2003). As

       such, it was not an abuse of discretion for the trial court to decline to accept

       Morris’s work history as a mitigating factor.


[9]    Second, the record does not clearly support Morris’s claim that extended

       incarceration would cause undue hardship on his dependent children. “‘Many

       persons convicted of serious crimes have one or more children and, absent

       special circumstances, trial courts are not required to find that imprisonment

       will result in an undue hardship.’” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind.

       1999). Morris argues that “the record was clear that Mr. Morris had two (2)

       minor children and a third child on the way. In fact, Mr. Morris was ordered to

       pay weekly child support in the amounts of Eighty Dollars ($80.00) and One

       Hundred Fifteen Dollars ($115) respectively.” Appellant’s Br. p. 11. However,

       both of Morris’s children live with their mothers, neither of whom testified at

       trial that Morris’s incarceration would create any hardship on the children.

       Even assuming Morris was in fact paying on his child support obligations––of

       which there is no evidence on the record––we find that Morris has failed to

       establish that the proffered mitigating circumstance is significant and clearly

       supported by the record.


[10]   Morris also briefly argues that the trial court abused its discretion by failing to

       consider alternatives to incarceration. “[C]onsideration and imposition of

       alternatives to incarceration is a ‘matter of grace’ left to the discretion of the

       trial court.” Wolf v. State, 793 N.E.2d 328, 330 (Ind. Ct. App. 2003) (citing

       Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995)). Morris has

       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015   Page 5 of 7
       been granted the benefit of alternatives to incarceration in the past and has

       failed to show that he will respond positively to those alternatives. In 2006,

       Morris was convicted of Class D felony possession of cocaine and in 2008,

       Morris was convicted of possession of marijuana. In both cases, the trial court

       suspended Morris’s entire sentence. Despite this leniency, Morris continued to

       engage in criminal activity and was subsequently convicted of four

       misdemeanor offenses––conversion and driving while suspended in 2011, and

       false informing and driving while suspended in 2012––before ultimately

       committing the instant offenses. Finally, we note that Morris was not eligible

       for a completely suspended sentence due to his prior felony conviction.

       Pursuant to Indiana Code section 35-50-2-2(b)(2), the minimum sentence

       Morris could receive was a two year executed term.2 In light of these facts, we

       do not think the trial court abused its discretion for declining to suspend a

       portion of Morris’s sentence.


                                   Appropriateness of Sentence
[11]   Appellate Rule 7(B) provides that the “Court may revise a sentence authorized

       by statute 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.” “Sentence review under Appellate Rule 7(B) is very




       2
         Indiana Code section 35-50-2-2(b)(2) provided that the trail court was only allowed to suspend that part of
       the sentence in excess of the minimum sentence due to the fact that Morris had an unrelated felony
       conviction within seven years of his commission of the instant crime.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-CR-506 | June 3, 2015                 Page 6 of 7
       deferential to the trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

       Morris carries the burden of proving that his sentence is inappropriate. Id.


[12]   With regards to the nature of the offenses, Morris was in possession of a

       substantial amount of synthetic marijuana––nearly a quarter pound––as well as

       a box of plastic sandwich bags and a loaded handgun. In short, we may

       reasonably infer that Morris was an armed drug dealer practicing his trade.


[13]   Morris’s character is evidenced by his criminal history, which includes four

       misdemeanors and a felony conviction in the eight years preceding his

       commission of the instant offenses. Additionally, in 2004, when Morris was a

       juvenile, he was placed on a program of informal adjustment after being

       charged with disorderly conduct.


[14]   As we stated above, Morris was not eligible to have the entirety of his sentence

       suspended. The permissible range of his sentence was two to eleven years.

       Morris’s six-year sentence is approximately in the middle of this range and

       certainly far from the maximum sentence. Based on the nature of Morris’s

       offenses and on his criminal history, we cannot say that Morris’s six-year

       sentence is inappropriate.


[15]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




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