MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Aug 31 2020, 8:49 am
court except for the purpose of establishing
                                                                                     CLERK
the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                    Court of Appeals
estoppel, or the law of the case.                                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicole A. Zelin                                          Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                     Attorney General of Indiana
Greenfield, Indiana                                      Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Garrett Marcus Morrow,                                   August 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-476
        v.                                               Appeal from the Hancock Superior
                                                         Court
State of Indiana,                                        The Honorable Dan E. Marshall,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         30D02-1909-F6-1878



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020                 Page 1 of 9
[1]   Garrett Marcus Morrow appeals his sentence for battery as a level 6 felony. He

      contends that he was denied a fair opportunity to controvert the presentence

      investigation report (“PSI”) and asserts his sentence is inappropriate. We

      affirm.


                                      Facts and Procedural History

[2]   On or about September 17, 2019, Morrow was an inmate at the Hancock

      County Jail and became disturbed by the sounds of the other inmates in his cell

      playing cards. Morrow knowingly or intentionally touched Thomas Joseph

      Fager in a rude, insolent, or angry manner by punching him resulting in

      moderate bodily injury including swelling and redness to his right eye.


[3]   On September 30, 2019, the State charged Morrow with battery as a level 6

      felony. On December 2, 2019, the court held a hearing, and Morrow indicated

      he did not want counsel and pled guilty. The court informed Morrow: “You

      know you have the right to what we call a Presentence Investigation Report

      where Probation will come in, meet with you and – uh – make a

      recommendation on the sentence.” Transcript Volume II at 9. The court

      stated: “Because this is a Level 6 Felony you can waive that right or you can

      have Probation go ahead and conduct that – that report. What would you like

      to do?” Id. Morrow answered: “Have them come talk to me.” Id. The court

      ordered a PSI and scheduled a sentencing hearing.


[4]   On December 26, 2019, the Hancock County Probation Department filed a PSI

      which recommended a sentence of two years in the Hancock County Jail. An


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020   Page 2 of 9
      entry in the chronological case summary dated December 27, 2019, states:

      “Automated Paper Notice Issued to Parties Pre-Sentence Investigation Report

      Filed – 12/26/2019: Garret Marcus Morrow[.]” Appellant’s Appendix Volume

      II at 5.


[5]   On January 2, 2020, the court held a sentencing hearing, and Morrow indicated

      he was prepared to proceed. The following exchange then occurred:


              THE COURT: Mr. Morrow, did you receive a copy of the
              Presentence Investigation prepared by Probation?

              MR. MORROW: Yes, Sir.

              THE COURT: Did you read that document?

              MR. MORROW: Yes, Sir.

              THE COURT: Are you aware of any corrections that need to be
              made to it?

              MR. MORROW: No, Sir.

                                                   *****

              THE COURT: Then I’ll show the Presentence Investigation
              approved as submitted. . . .

                                                   *****

              THE COURT: State’s recommendation?

              [Prosecutor]: Your Honor, the State would follow the
              recommendation as laid out . . . in the Presentence Investigation
              by Miss Dobbs.

              THE COURT: Sir, do you – uh – anything you’d like to say
              about the recommendation in this matter?

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020   Page 3 of 9
              MR. MORROW: No, Sir.

              THE COURT: So, you don’t disagree with the State’s
              recommendation?

              MR. MORROW: I didn’t even read what they recommend on
              there.

              THE COURT: You do agree with it?

              MR. MORROW: Yes.


      Transcript Volume II at 13-15 (emphasis appears in original).


[6]   The court sentenced Morrow to 730 days in the Hancock County Jail. The

      court stated:


              Sir, the recommendation of Probation including the possibility of
              a modification if you did certain things. I’m not including that in
              my Sentencing Order but that doesn’t mean you’re precluded
              from . . . filing a petition for modification. This is open
              sentencing, so I have the right to modify this sentence at any
              time. So, if you do wonderfully and do the things Probation has
              recommended in . . . this Presentence for the possibility of a
              modification, if you do those things and you file a motion, I’ll
              give you a hearing to determine whether your sentence should be
              modified.


      Id. at 15. The court asked Morrow if he understood, and he answered

      affirmatively.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020   Page 4 of 9
                                                    Discussion

                                                          I.


[7]   Morrow first argues that he was denied a fair opportunity to controvert the PSI

      and asserts he was provided with a copy of the PSI only five minutes prior to

      the hearing in violation of Ind. Code § 35-38-1-12(b). 1 The State contends that

      Morrow’s argument is not supported by the record or case law.


[8]   Ind. Code § 35-38-1-12(b) provides in part: “The court shall furnish the factual

      contents of the presentence investigation or a copy of the presentence report

      sufficiently in advance of sentencing so that the defendant will be afforded a fair

      opportunity to controvert the material included.” As a general matter, “it

      would be better if trial courts routinely made sure the pre-sentence report was

      available more than one day before the sentencing hearing . . . .” Lang v. State,

      461 N.E.2d 1110, 1114 (Ind. 1984). However, “[t]here is no specific deadline

      for the filing of a pre-sentence investigation report except that the factual

      contents or a copy of the report must be furnished ‘sufficiently in advance of

      sentencing so that the defendant will be afforded a fair opportunity to

      controvert the material included.’” Goudy v. State, 689 N.E.2d 686, 698-699

      (Ind. 1997) (quoting Ind. Code § 35-38-1-12(b)), reh’g denied. “[I]t is incumbent




      1
       Morrow cites to a document signed by him and titled “AFFIDAVIT OF GARRETT MORROW” in which
      he asserted that his case was called for a hearing within five minutes of him receiving the twenty-two page
      PSI. Appellant’s Appendix Volume II at 56.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020                  Page 5 of 9
      upon [the] defendant to show how he was prejudiced by a short time period

      within which to review a pre-sentence report.” Id. at 699.


[9]   The record reveals that Morrow stated at the sentencing hearing that he was

      ready to proceed. While at one point Morrow stated, “I didn’t even read what

      they recommend on there,” Transcript Volume II at 14, when specifically asked

      by the trial court if he read the PSI, he answered affirmatively. Further, when

      asked if he was aware of any corrections that needed to be made to the PSI, he

      answered in the negative. Morrow did not request a continuance or additional

      time to read the recommendation. On appeal, Morrow asserts that he was not

      afforded a fair opportunity to review the PSI so that he could refute the

      probation officer’s recommendation, but does not point to any incorrect or

      inaccurate statements in the PSI or develop a cogent argument as to how he

      was harmed. Under these circumstances, we cannot say reversal is warranted.

      See Goudy, 689 N.E.2d at 699 (observing that the defendant made no claim that

      the PSI contained factual errors or inaccuracies requiring additional time to try

      to rebut and finding no error in the trial court’s denial of his request to continue

      the sentencing hearing); Eubank v. State, 456 N.E.2d 1012, 1017 (Ind. 1983)

      (observing that the defendant received the report in advance of the sentencing

      hearing, stated that he had no evidence to present, failed to enumerate specific

      findings which he planned to controvert if given additional time, and failed to

      show how he was harmed, and holding that the trial court’s denial of his

      motion to continue the sentencing hearing did not warrant reversal).




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020   Page 6 of 9
                                                         II.


[10]   The next issue is whether Morrow’s sentence is inappropriate in light of the

       nature of the offense and his character. Morrow argues the facts are not

       egregious and his criminal history was not so significant “as to affect his

       character to the extent that he should have been sentenced” to two years.

       Appellant’s Brief at 9. He requests that we revise his sentence to the advisory.


[11]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

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

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[12]   Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall

       be imprisoned for a fixed term of between six months and two and one-half

       years, with the advisory sentence being one year.


[13]   Our review of the nature of the offense reveals that Morrow, who was born on

       December 28, 1995, was an inmate at the Hancock County Jail, became

       disturbed by the sounds of the other inmates in his cell playing cards, and

       knowingly or intentionally touched Fager in a rude, insolent, or angry manner

       by punching him resulting in moderate bodily injury including swelling and

       redness to his right eye.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020   Page 7 of 9
[14]   Our review of the character of the offender reveals that Morrow pled guilty. As

       a juvenile, Morrow had adjudications for strangulation and two counts of child

       molesting. As an adult, he has convictions for fraud and possession of

       marijuana, hash oil, hashish, or a synthetic drug in 2015; resisting law

       enforcement as a class A misdemeanor and unlawful possession or use of a

       precursor as a level 6 felony in 2018; and two counts of resisting law

       enforcement and two counts of domestic battery as class A misdemeanors in

       2019. The PSI indicates that Morrow reported having been on supervised

       probation five times which he admitted to never successfully completing. He

       also admitted to being placed into community corrections and failing to

       successfully complete it. The PSI states that Morrow received extensive

       therapeutic interventions as a juvenile and never complied with supervision by

       probation or community corrections.


[15]   The PSI states Morrow had significant childhood trauma and was raised in a

       home that was chaotic and marked by violence and drug use. It further

       provides that he received extensive services through the Department of Mental

       Health as well as through Hancock Probation Department and that his

       compliance was “minimal at best.” Appellant’s Appendix Volume II at 30.

       Morrow admitted to first using marijuana around age fourteen and described

       his use as being at least one time each month. The PSI notes that Morrow

       denied the use of cocaine, meth, heroin, LSD, hallucinogenic mushrooms, bath

       salts, ecstasy, or any other known substances, and that prior police reports

       indicated he admitted to being under the influence of meth in the past and that,


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020   Page 8 of 9
       during one arrest, he required hospital care that included sedation due to his use

       of illegal substances. The PSI further provides that Morrow’s overall risk

       assessment score using the Indiana Risk Assessment System places him in the

       very high risk to reoffend category.


[16]   After due consideration, we conclude that Morrow has not sustained his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.


[17]   For the foregoing reasons, we affirm Morrow’s sentence.


[18]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-476 | August 31, 2020   Page 9 of 9
