Carl Moore v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 03 2019, 8:33 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing 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 Christopher L. Clerc Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Matthew S. Koressel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carl Moore, April 3, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2276 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff Judge Trial Court Cause No. 03D01-1703-F5-1550

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2276 | April 3, 2019 Page 1 of 4 [1] Carl Moore appeals the four-and-one-half-year sentence imposed by the trial

court following his guilty plea to level 5 felony battery. His sole argument is

that the trial court abused its discretion by not giving his guilty plea significant

mitigating weight. Finding no abuse of discretion, we affirm. [2] On February 6, 2017, Moore was drinking at a Bartholomew County bar and

punched another bar patron in the face. The victim suffered numerous fractures

to his face and eye socket, which required the implantation of multiple plates

and plastic to repair. The State charged Moore with level 5 felony battery

resulting in serious bodily injury. Moore agreed to plead guilty as charged. In

exchange, the State agreed to a two-year cap on the executed portion of his

sentence, but otherwise Moore’s sentencing was left open to the trial court. [3] At Moore’s sentencing, the trial court found four aggravating factors: Moore’s

criminal history spanning twenty-eight years; the revocation of Moore’s

probation in a prior case; Moore’s arrest for operating a vehicle while

intoxicated during his pretrial release; and that the harm suffered by the victim

was significant and greater than the elements necessary to prove the

commission of the offense. Tr. Vol. 2 at 41-42; Appellant’s App. Vol. 2 at 9.

The trial court assigned “slight” mitigating weight to Moore’s guilty plea,

observing that by pleading guilty he obtained a benefit by receiving a cap on the

executed portion of his sentence. Tr. Vol. 2 at 42; Appellant’s App. Vol. 2 at 9.

The trial court sentenced Moore to four and one-half years, with three years

suspended to probation.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2276 | April 3, 2019 Page 2 of 4 [4] On appeal, Moore acknowledges that the trial court gave his guilty plea some

mitigating weight, but contends that the trial court abused its discretion by not

giving it significant mitigating weight. Moore asks us to “reweigh the

aggravating and mitigating circumstances independently at the appellate level.”

Appellant’s Br. at 8. [5] 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. A trial court abuses its discretion during

sentencing by: (1) failing to enter a sentencing statement at all; (2) entering a

sentencing statement that includes aggravating and mitigating factors that are

unsupported by the record; (3) entering a sentencing statement that omits

reasons that are clearly supported by the record; or (4) entering a sentencing

statement that includes reasons that are improper as a matter of law. Id. at 490-

91. The relative weight or value assignable to mitigators and aggravators is not

subject to review for abuse of discretion. Id. at 491. [6] “[A] defendant who pleads guilty deserves ‘some’ mitigating weight be given to

the plea in return.” Anglemyer, 875 N.E.2d at 221. However, “the significance

of a guilty plea as a mitigating factor varies from case to case.” Id. Also, “a

trial court is not required to give the same weight to proffered mitigating factors

as does a defendant.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012),

trans denied. Here, the trial court identified Moore’s guilty plea as a mitigating

factor and gave it some, albeit slight, mitigating weight. Indiana appellate

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2276 | April 3, 2019 Page 3 of 4

courts no longer review the relative weight or value a trial court assigns to

mitigators and aggravators. Finding no abuse of discretion, we affirm Moore’s

sentence. [7] Affirmed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2276 | April 3, 2019 Page 4 of 4