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                           Jan 20 2015, 9:35 am

establishing the defense of res judicata,
collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                                     ATTORNEY FOR APPELLEE:

JEREMY K. NIX                                               GREGORY F. ZOELLER
Matheny, Hahn, Denman & Nix, LLP                            Attorney General of Indiana
Huntington, Indiana
                                                            BRIAN REITZ
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA


                                                    )
NATHANIEL E. MOFFETT,                               )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 90A02-1407-CR-467
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                        APPEAL FROM THE WELLS CIRCUIT COURT
                           The Honorable Kenton W. Kiracofe, Judge
                                Cause No. 90C01-1309-FB-13
                                         January 20, 2015

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

        Nathaniel Eugene Moffett (“Moffett”) was convicted of Attempted Arson, as a Class

B felony,1 Possession of a Dangerous Device by an Inmate, as a Class C felony,2 and

Intimidation, as a Class A misdemeanor,3 and he admitted his status as a habitual offender.4

He appeals, presenting the sole issue of whether his fifty-year aggregate sentence is

inappropriate. We affirm.

                                   Facts and Procedural History

        In August of 2013, Moffett was incarcerated in the Wells County Jail and assigned to

a cell with Jeremy Williams (“Williams”). Moffett and Williams became involved in a

physical altercation and Williams requested that he be placed in another cell. After the move,

Moffett threatened to strike Williams with a mop wringer and to cut Williams with blades

made from pieces of a light fixture. Jail officers removed from Moffett’s cell two metal

blades that had been “tucked under a bunk bracket.” (Tr. 84.)

        On September 3, 2013, while he was still incarcerated in the Wells County Jail,

Moffett stated, “I’m going to set the bitch on fire.” (Tr. 128.) Later that evening, Moffett’s

cellblock lost power. Upon investigation, officers discovered that the breaker controlling the

jail cell lights and locking mechanisms of the doors had been tripped. The breaker was

tripped several times before officers observed that Moffett’s light fixture had been broken.



1
  Ind. Code §§ 35-43-1-1, 35-41-5-1. The offense is now a Level 2, 3, 4, or 6 felony. All references are to
statutes in effect at the time of Moffett’s offenses.
2
  I.C. § 35-44.1-3-7. The offense is now a Level 4 or 5 felony.
3
  I.C. § 35-45-2-1.
4
  I.C. § 35-50-2-8.

                                                     2
There were black burn marks on the wall of Moffett’s cell and it appeared that he had been

using an exposed wire to create sparks and attempt to start a fire.

        On May 13, 2014, Moffett was convicted of Attempted Arson, Inmate Possession of a

Dangerous Device, and Intimidation. Moffett received a fifty-year aggregate sentence of

imprisonment, and this appeal ensued.

                                       Discussion and Decision

        Upon conviction of a Class B felony, Moffett was subject to a sentence of between six

years and twenty years, with ten years as the advisory term. I.C. § 35-50-2-5.5 Upon

conviction of a Class C felony, Moffett was subject to a sentence of between two years and

eight years, with four years as the advisory term. I.C. § 35-50-2-6.6 Upon conviction of a

Class D felony, Moffett was subject to a sentence of between six months and three years,

with one and one-half years as the advisory term. I.C. § 35-50-2-7.7 As a habitual offender,

Moffett was subject to a sentence enhancement of between ten years and thirty years. I.C. §

35-50-2-8. Moffett’s fifty-year sentence is comprised of a twenty-year sentence for

Attempted Arson, enhanced by thirty years, and concurrent sentences of eight years and one

year for his Possession and Intimidation convictions, respectively. When imposing this

sentence, the trial court found Moffett’s criminal history and his violation of probation to be

aggravators, and recognized no mitigators.




5
  This statutory provision was modified, effective July 1, 2014, to include the penalty for Level 3 felonies.
6
  This statutory provision was modified, effective July 1, 2014, to include the penalty for Level 5 felonies.
7
  This statutory provision was modified, effective July 1, 2014, to include the penalty for level 6 felonies.

                                                      3
       The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

permitting appellate review and revision of criminal sentences is implemented through

Appellate Rule 7(B), which provides: “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.” In performing our review, we assess “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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of

such review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade

the appellate court that his or her sentence has met th[e] inappropriateness standard of

review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting Childress v. State,

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

       As to the nature of Moffett’s offenses, he fashioned a potential weapon from metal,

threatened to cut a fellow inmate, and attempted to set fire to the jail where he was

imprisoned. The typical jail population was between seventy-five and one hundred prisoners.

Because the tampering caused breakers to shut off the flow of electricity, cell doors could

not be opened mechanically. In the event of fire and electricity interruption, prisoners could

potentially be trapped in fiery cells.

       Moffett admitted his status as a habitual offender, and this admission reflects

favorably upon his character. However, a guilty plea does not rise to the level of significant

mitigation where the evidence against the defendant is such that the decision to plead guilty


                                              4
is “purely pragmatic.” Abrajan v. State, 917 N.E.2d 709, 713 (Ind. Ct. App. 2009). Moffett

admitted his status after his conviction by a jury of the instant charges; the State would have

been prepared to try the habitual offender phase. It appears that Moffett’s decision was a

pragmatic one and did not save the State the time and expense of trial preparation. See

Jackson v. State, 973 N.E.2d 1123, 1131 (Ind. Ct. App. 2012) (recognizing that a habitual

offender admission after a murder trial did not provide the same benefits to the State and

victims as would a guilty plea to the underlying crime).

         By the age of twenty-three, Moffett had already compiled a substantial criminal

history. He has seven prior felony convictions, including convictions for Child Molesting,

Burglary, Sexual Misconduct with a Minor, and Failure to Register as a Sex or Violent

Offender. He has several misdemeanor convictions, including those for Battery, Criminal

Mischief, and Disorderly Conduct. His contacts with the juvenile justice system began at age

eight. He has violated the terms of probation on multiple occasions and was incarcerated for

a probation violation at the time of the instant offenses. Moffett’s history indicates an

inability to benefit from rehabilitative efforts short of incarceration.

         Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant

appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial

court.

                                          Conclusion

         Moffett’s fifty-year sentence is not inappropriate.


                                               5
      Affirmed.

ROBB, J., and BROWN, J., concur.




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