MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Jul 05 2019, 5:58 am

regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Omar Sharif Mosley,                                       July 5, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-3088
        v.                                                Appeal from the Parke Circuit
                                                          Court
State of Indiana,                                         The Honorable Sam A. Swaim,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          61C01-1709-F6-201



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019                    Page 1 of 8
                                            Statement of the Case
[1]   Omar Mosley appeals the sentence he received for his convictions of leaving the
                                                                                     1
      scene of an accident with serious bodily injury, a Level 6 felony; false
                                                    2                                            3
      informing, a Class B misdemeanor; reckless driving, a Class A misdemeanor;

      and operating a motor vehicle without ever receiving a license, a Class C
                            4
      misdemeanor. We affirm.


                                                        Issue
[2]   Mosley presents one issue for our review, which we restate as: whether his

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


                                   Facts and Procedural History
[3]   In September 2017, Mosley caused a serious multi-vehicle accident. The

      collision occurred when, as Mosley was driving, he was distracted by an

      incoming call on his cell phone, and the vehicle in front of him braked. Mosley

      hit the back of that vehicle, and the collision propelled his vehicle into the lane

      of oncoming traffic where he hit a motorcycle head-on. Fearful of being

      arrested because he did not have a driver’s license, Mosley called his wife and

      had her pick him up not far from the scene. Later, he returned to the scene with



      1
          Ind. Code § 9-26-1-1.1 (2017).
      2
          Ind. Code § 35-44.1-2-3 (2016).
      3
          Ind. Code § 9-21-8-52 (2016).
      4
          Ind. Code § 9-24-18-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019       Page 2 of 8
      his wife, who told the police that she was driving at the time of the collision.

      Mosley maintained that he was a passenger in the car. Upon further

      questioning, Mosley’s wife recanted her story and indicated that Mosley had

      been driving at the time of the collision. During an inventory search of the car

      prior to towing, police found amphetamine in the console; Mosley did not have

      a prescription for this substance.


[4]   Based upon this incident, Mosley was charged with leaving the scene of an

      accident with serious bodily injury, a Level 6 felony; possession of a controlled
                                                    5
      substance, a Class A misdemeanor; false informing, a Class B misdemeanor;

      reckless driving, a Class A misdemeanor; and operating a motor vehicle

      without ever receiving a license, a Class C misdemeanor. Mosley and the State

      entered a plea agreement whereby he would plead guilty to leaving the scene of

      an accident with serious bodily injury, false informing, reckless driving, and

      operating a motor vehicle without ever receiving a license, with all remaining

      counts to be dismissed. The parties also agreed that sentencing would be left to

      the discretion of the trial court. The trial court sentenced Mosley to an

      aggregate sentence of 1,455 days. He now appeals that sentence.




      5
          Ind. Code § 35-48-4-7 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019   Page 3 of 8
                                   Discussion and Decision
[5]   Mosley contends his sentence is inappropriate given the nature of his offenses

      and his character. He asks this Court to impose a sentence of a mere 872 days,

      which equates to the time he has already served.


[6]   Although a trial court may have acted within its lawful discretion in imposing a

      sentence, article VII, sections 4 and 6 of the Indiana Constitution authorize

      independent appellate review and revision of sentences through Indiana

      Appellate Rule 7(B), which provides that we may revise a sentence authorized

      by statute if, after due consideration of the trial court’s decision, we determine

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

      character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

      2014). However, “we must and should exercise deference to a trial court’s

      sentencing decision, both because Rule 7(B) requires us to give ‘due

      consideration’ to that decision and because we understand and recognize the

      unique perspective a trial court brings to its sentencing decisions.” Stewart v.

      State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

      court’s judgment should prevail unless overcome by compelling evidence

      portraying in a positive light the nature of the offense (such as accompanied by

      restraint, regard, and lack of brutality) and the defendant’s character (such as

      substantial virtuous traits or persistent examples of good character). Stephenson

      v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, 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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019   Page 4 of 8
      N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of

      persuading the appellate court that his or her sentence is inappropriate.

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


[7]   To assess whether a sentence is inappropriate, we look first to the statutory

      range established for the class of the offenses. Here, Mosley was convicted of

      Level 6 felony leaving the scene of an accident with serious bodily injury, for

      which the advisory sentence is one year, with a minimum sentence of six

      months and a maximum of two and one-half years. Ind. Code § 35-50-2-7(b)

      (2016). In addition, Mosley was convicted of Class B misdemeanor false

      informing, for which the maximum sentence is 180 days, and Class A

      misdemeanor reckless driving, for which the maximum is one year. Ind. Code

      §§ 35-50-3-3 (1977), -2 (1977). Finally, Mosley was convicted of Class C

      misdemeanor operating a motor vehicle without ever receiving a license, for

      which the maximum is sixty days. Ind. Code § 35-50-3-4 (1978). Mosley was

      sentenced to consecutive terms of two and one-half years for the Level 6

      offense, 180 days on the Class B misdemeanor, and one year on the Class A

      misdemeanor, all of which was concurrent with the sixty days for the Class C

      misdemeanor. Thus, his aggregate sentence of 1,455 days, or essentially four

      years, is just shy of the maximum possible sentence.


[8]   Next, we look to the nature of the offenses and the character of the offender.

      As to the nature of the current offenses, we note that Mosley was driving

      although he knew he had never been licensed to do so. More significantly, his

      actions caused severe injury to the two motorcycle victims. One of the victims

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019   Page 5 of 8
       had to undergo the amputation of one of his legs. The other motorcycle victim

       suffered a compound fracture of her femur bone in addition to numerous other

       broken bones, including all of her ribs, every bone in her left foot, her tibia,

       fibula, knee, collar, and shoulder. As of the date of sentencing, she had

       endured a great deal of pain, multiple surgeries, and rehabilitation, with more

       yet to come. Indeed, the court found the victims’ amputation and significant,

       life-long disabilities established the aggravating circumstance of harm, injury, or

       loss suffered by a victim is significant and greater than the elements necessary to

       prove the offense.


[9]    With regard to the character of the offender, we observe that upon recovering

       from being dazed by the deployment of his car’s air bags, Mosley heard the

       motorcycle victims screaming and heard others telling them it would be okay

       and that an ambulance was on its way. Rather than assisting in whatever

       manner he could, Mosley absconded from the scene, only to return later with

       his wife to lie to the police about his true involvement in the collision.


[10]   Mosley’s poor character is also revealed in his criminal history, which the trial

       court found to be an aggravating factor. Even a limited criminal history can be

       considered an aggravating factor, Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct.

       App. 2009), trans. denied, and Mosley’s history is abundant. As a juvenile,

       Mosley was charged with auto theft and waived to adult court. He pleaded

       guilty and was sentenced to three years with two years suspended to probation.

       However, two probation violations were filed, and his probation was eventually

       closed as unsatisfactory. As an adult, Mosley has been charged with two felony

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019   Page 6 of 8
       counts of auto theft. He pleaded guilty to one count as a C felony and received

       three years with one suspended; thereafter, a probation violation was filed.

       Additionally, he was charged with seven counts of B felony armed robbery and

       alleged to be an habitual offender. He pleaded guilty to all seven counts and

       admitted to the habitual allegation. He was sentenced to twenty-five years in

       the DOC, where he acquired multiple official misconduct reports.

       Furthermore, he was on parole at the time of this offense. That fact is a

       “substantial consideration” in our assessment of his character. See Rich v. State,

       890 N.E.2d 44, 54 (Ind. Ct. App. 2008) (determining that defendant’s

       commission of offenses while on probation is significant factor of character in

       sentencing), trans. denied.


[11]   Our review also involves consideration of the fact that Mosley was convicted of

       only one count of leaving the scene of an accident involving serious bodily

       injury, yet there were two motorcycle victims who were both severely and

       permanently injured. When a defendant commits the same offense against two

       victims, enhanced and consecutive sentences seem necessary to substantiate the

       fact that there were separate harms and separate acts against more than one

       person. Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003).


[12]   Mosley points out that he pleaded guilty and that he is remorseful, but these

       circumstances do not outweigh the substantial aggravators. Mosley has not met

       his burden of presenting compelling evidence portraying in a positive light the

       nature of his offenses and his character in order to overcome the trial court’s

       sentencing decision.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019   Page 7 of 8
                                                 Conclusion
[13]   For the reasons stated, we are unable to conclude that Mosley’s four-year

       sentence is inappropriate.


[14]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3088 | July 5, 2019   Page 8 of 8
