Shawn P. Morrell v. State of Indiana (mem. dec.) , 118 N.E.3d 793 ( 2019 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jan 17 2019, 9:07 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn P. Morrell, January 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1282
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Donald L. Daniel,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
79C01-1711-F5-151
Sharpnack, Senior Judge.
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Statement of the Case
[1] Shawn P. Morrell appeals from the sentence imposed by the trial court after his
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conviction of one count of domestic battery, a Level 5 felony, contending that
the trial court abused its discretion in imposing a sentence of five years for the
offense. We affirm.
Issues
[2] Morrell claims that the trial court abused its discretion during sentencing by
considering improper factors. More specifically, Morrell raises the following
claims:
I. Did the trial court abuse its discretion by improperly citing
Morrell’s individual risk assessment score as an
aggravating factor?
II. Did the trial court abuse its discretion by improperly
considering Morrell’s juvenile history during sentencing?
Facts and Procedural History
[3] The facts supporting the trial court’s judgment of conviction after a bench trial
follow. Morrell and his girlfriend A.W. were involved in an intimate, romantic
relationship and lived together at A.W.’s house. On the evening of October 29,
2017, A.W. was at her daughter’s apartment babysitting her grandchildren
1
Ind. Code § 35-42-2-1.3(a)(1), -(c)(4)(A) (2016).
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while her daughter worked. After the grandchildren were asleep, sometime
after dark on that date or in the early morning hours of October 30, 2017,
Morrell joined A.W. at the apartment. According to A.W., Morrell exhibited
signs of paranoia by looking out of the windows, checking in closets, and
inquiring if A.W. had hidden police officers in the apartment. Morrell
subsequently admitted that he was under the influence of drugs. Tr. p. 47.
[4] Eventually, A.W. fell asleep. When she awoke, Morrell was not beside her
where she had expected to find him. When she reached for her cell phone prior
to attempting to locate him in the apartment, she noticed that her phone was
not in its case. She looked for Morrell and discovered that a light was on in the
bathroom. Morrell emerged from the bathroom holding A.W.’s cell phone.
A.W. went to another room where she found Morrell’s cell phone. Although
she was unable to enter a correct pass code to unlock his phone, she pretended
to be accessing information on the phone.
[5] After Morrell returned her phone to her, A.W. noticed that he had deleted the
contact information she had for his other girlfriend, a person with whom she
communicated. After A.W. returned his phone to him, Morrell believed that
A.W. had done something to cause his phone to malfunction. The two argued
about meddling with each other’s phones. At one point during the argument,
Morrell grabbed A.W. by the shoulders and head butted her. A.W.’s eye
immediately began to hurt, and a lump formed on her forehead.
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[6] A.W. stayed at her daughter’s apartment until her daughter returned home
from work. When A.W. got in her car to leave, Morrell was sitting in the
passenger seat. The two waited at A.W.’s house until the urgent care facility
opened before going there. A nurse at the urgent care facility called for
assistance from law enforcement officers upon hearing A.W. report that
Morrell, who was also there at the facility, had caused her injury. Morrell
noticed that staff were frequently glancing at him as he smoked a cigarette
outside and left before law enforcement officers arrived. A responding law
enforcement officer spoke with A.W. about her injury and observed bruising
and swelling above A.W.’s left eye. Those injuries were documented by
officers.
[7] On November 16, 2017, the State charged Morrell with one count of domestic
battery as a Level 5 felony, and one count of domestic battery as a Class A
misdemeanor. Later, the State added a charge of invasion of privacy as a Class
A misdemeanor for alleged contact between Morrell and A.W. after the entry of
an order for no contact.
[8] At the conclusion of a bench trial held on April 10, 2018, the trial court found
Morrell not guilty of invasion of privacy. The court found Morrell guilty of
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domestic battery as a Level 5 felony and merged the conviction for domestic
battery as a misdemeanor offense with the felony conviction. The trial court
2
Morrell admitted at trial that he had a prior conviction for domestic battery which elevated the offense from
a misdemeanor to a felony.
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imposed its sentence and Morrell now appeals, challenging factors considered
by the trial court during sentencing.
Discussion and Decision
[9] The sentencing range for a Level 5 felony is a fixed term of between one and six
years with the advisory sentence being three years. Ind. Code § 35-50-2-6(b)
(2014). The trial court imposed a sentence of five years, with three and a half
years executed at the Indiana Department of Correction, one year at
community corrections, and six months on supervised probation.
[10] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. McElfresh v. State, 51
N.E.3d 103, 107 (Ind. 2016). One way in which a trial court may abuse its
discretion is by omitting from its sentencing statement “reasons that are clearly
supported by the record and advanced for consideration, or the reasons given
are improper as a matter of law.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (2007). Nonetheless, “a
trial court can not . . . be said to have abused its discretion in failing to ‘properly
weigh’” aggravators or mitigators. Id. Additionally, if a sentencing court
improperly applies an aggravating circumstance but other valid aggravating
circumstances exist, a sentence enhancement may still be upheld. Means v.
State, 807 N.E.2d 776, 788 (Ind. Ct. App. 2004), trans. denied. When we can
“identify sufficient aggravating circumstances to persuade us that the trial court
would have entered the same sentence even without the impermissible factor, it
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should affirm the trial court’s decision.” Id. (quoting Day v. State, 560 N.E.2d
641, 542 (Ind. 1990)).
[11] During the sentencing hearing, the trial court stated the following reasoning
when imposing Morrell’s sentence:
Conviction having been entered against Shawn Patrick Morrell
on Count 1, [d]omestic battery, a [L]evel 5 felony[,] the court
now finds that an aggravating circumstance is the defendant’s
criminal history. The court notes three juvenile adjudications,
two other juvenile contacts, three felony convictions, two
misdemeanor convictions. Seven cases which have unknown
disposition[s]. At least one failure to appear and two pending
petitions to revoke probation. Second aggravating circumstance
is that the defendant’s IR[A]S his individual risk assessment
score is high, likely to re-offend. Third aggravating circumstance
is his history of illegal alcohol and drug use. A mitigating
circumstance is that the defendant does have mental health
issues. Another mitigating circumstance although it is not a great
weight is that the defendant has one dependent child. A third
mitigating circumstance is that the defendant has worked to
better himself by obtaining his GED while he is in custody. The
court finds that the aggravating circumstances outweigh the
mitigating circumstances.
Tr. p. 88.
I. Individual Risk Assessment Score
[12] Morrell argues that we must remand the matter of sentencing due to the trial
court’s erroneous consideration of this aggravating circumstance. We decline
to remand the matter on these grounds for reasons we more fully explain below
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but agree that the trial court abused its discretion when designating Morrell’s
IRAS as an aggravating circumstance.
[13] In a pair of decisions issued on the same day, our Supreme Court clarified how
individual risk assessment scores should be treated for purposes of sentencing.
See Malenchik v. State, 928 N.E.2d 564 (Ind. 2010) and J.S. v. State, 928 N.E.2d
576 (Ind. 2010).
[14] In Malenchik, 928 N.E.2d at 573, 575, the Supreme Court stated the following:
It is clear that neither the LSI-R nor the SASSI are intended nor
recommended to substitute for the judicial function of
determining the length of sentence appropriate for each offender.
But such evidence-based assessment instruments can be
significant sources of valuable information for judicial
consideration in deciding whether to suspend all or part of a
sentence, how to design a probation program for the offender,
whether to assign an offender to alternative treatment facilities or
programs, and other such corollary sentencing matters. The
scores do not in themselves constitute an aggravating or
mitigating circumstance because neither the data selection and
evaluations upon which a probation officer or other
administrator’s assessment is made nor the resulting scores are
necessarily congruent with a sentencing judge’s findings and
conclusion regarding relevant sentencing factors. Having been
determined to be statistically valid, reliable, and effective in
forecasting recidivism, the assessment tool scores may, and if
possible should, be considered to supplement and enhance a
judge’s evaluation, weighing, and application of the other
sentencing evidence in the formulation of an individualized
sentencing program appropriate for each defendant.
****
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We hold that the results of LSI-R and SASSI offender assessment
instruments are appropriate supplemental tools for judicial
consideration at sentencing. These evaluations and their scores
are not intended to serve as aggravating or mitigating circumstances nor
to determine the gross length of sentence, but a trial court may
employ such results in formulating the manner in which a
sentence is to be served.
(emphasis added).
[15] The Supreme Court’s holding about how to use these assessment tools was
further refined in a footnote in J.S. Although the appellant in J.S. was facing
neither of these sentencing options, the Supreme Court announced the
following:
Sentencing proceedings for determining whether to impose a
sentence of death or life imprisonment without parole call for a
departure from this rule. In cases involving whether to impose a
sentence of death or life imprisonment without parole, a jury
may determine the sentence and is entitled to consider any
mitigating factor or circumstance. . . .In such cases, therefore, the
results of an LSI-R or other similar evidence-based offender risk
assessment instrument may be given consideration as an
independent mitigating circumstance.
928 N.E.2d at 578 n.3. However, it is apparent that while the Supreme Court is
inclined to approve of the use of results of an individual risk assessment
instrument as a mitigating circumstance in those particular circumstances, it
may not be used as an aggravating circumstance.
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[16] In the trial court’s oral statement regarding sentencing, which is quoted above,
Morrell’s IRAS was categorized as an aggravating circumstance. Further, in
the written sentencing order, the trial court specifically refers to Morrell’s “high
score on the risk assessment” test as an aggravating circumstance. Appellant’s
App. Vol. II, p. 79. Therefore, to the extent Morrell’s IRAS was labeled in both
instances as an aggravating circumstance, the trial court erred.
[17] However, as the cases above inform us, the trial court is not prohibited from
considering a defendant’s assessment scores when fashioning an individualized
sentence. The court is prohibited from labeling and finding it to be a separate
aggravating circumstance. To the extent the likelihood of recidivism, as
reflected by the assessment, coupled with Morrell’s adult criminal history–three
felony convictions and two misdemeanor convictions–could assist the trial
court in determining Morrell’s sentence, the error in labeling such as an
aggravating circumstance was harmless.
II. Juvenile History
[18] Next, Morrell claims that the trial court abused its discretion by considering his
juvenile history as an aggravating circumstance. Morrell’s challenge is twofold.
First, Morrell claims the trial court abused its discretion by considering juvenile
contacts with the justice system that did not result in an adjudication as part of
his criminal history. Second, Morrell alleges that the trial court abused its
discretion by considering Morrell’s juvenile adjudications from Florida as part
of his criminal history, which was an aggravating circumstance. We address
each argument in turn.
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[19] Indiana courts have recognized that criminal behavior reflected in juvenile
delinquency adjudications can serve as the basis for enhancing an adult
criminal sentence. See, e.g., Simms v. State, 421 N.E.2d 698, 703-04 (Ind. Ct.
App. 1981). The Supreme Court has emphasized that it is the criminal behavior
reflected in earlier proceedings rather than the adjudications that is the proper
proof of a prior history of criminal behavior. Jordan v. State, 512 N.E.2d 407,
210 (Ind. 1987) (emphasis added).
[20] In Day, our Supreme Court explained as follows as respects juvenile
proceedings:
The details of criminal activity may be used to demonstrate a
history of criminal activity when a juvenile court has determined
that those acts were committed. When a juvenile proceeding
ends without a disposition, the mere fact that a petition was filed
alleging delinquency does not suffice as proof of a criminal
history. . . . An adjudication of delinquency is not a fact that can
be used by a sentencing court to enhance a criminal sentence. . . .
The adjudication indicates that the history is correct. It elevates
that history from allegation to fact.
560 N.E.2d at 643.
[21] Later, in Fuller v. State, 639 N.E.2d 344, 350 (Ind. Ct. App. 1994), a panel of
this court held that the trial court did not impermissibly rely on the defendant’s
juvenile record, because unlike in Day, the record revealed the disposition of the
juvenile offenses as well as the facts underlying the offenses.
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[22] In Mitchell v. State, 844 N.E.2d 88, 92 (Ind. 2006), our Supreme Court noted
that because juvenile adjudications provide juveniles with sufficient procedural
safeguards, juvenile adjudications may be considered as prior convictions for
purposes of sentencing adults under Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004) (citing Ryle v. State, 842 N.E.2d 320, 322-23
(Ind. 2005)).
[23] Here, some of the juvenile history cited in Morrell’s presentence investigation
report does not indicate either a disposition or an adjudication. Of the juvenile
offenses for which an adjudication was entered–one count of culpable
negligence exposing another person to personal injury, one count of possession
of cannabis as a misdemeanor, one count of possession of cannabis as a felony,
and one count of purchasing cannabis as a misdemeanor–the report also
discloses Morrell’s admission to use of illicit or illegally obtained illicit
substances such as marijuana used recreationally beginning at the age of
fourteen. He also admitted that drug use has caused problems in his life.
Therefore, the trial court properly considered the portion of Morrell’s juvenile
history resulting in adjudications and his supporting admissions to facts about
his drug use as a juvenile.
[24] Next, Morrell argues that the trial court was prohibited from considering any of
his juvenile history because those adjudications were entered in Florida. Under
Florida law, according to Morrell, a trial court is prohibited from considering a
defendant’s juvenile history occurring more than three years prior to the
commission of the instant offense. See Fla. Rule of Criminal Procedure
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3.701(d)(5)(G) (1993); Puffinberger v. State, 581 So. 2d 897, 899 (Fla. 1991) (a
juvenile record occurring more than three years prior to the current offense (or
nonscoreable under Florida law) may nonetheless be considered only if it
“contains dispositions that are the equivalent of adult convictions and only if
the record is significant. . . .”). The State contends that because this argument
was not raised and considered in the trial court, it is waived. See Leatherman v.
State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) (argument not raised in the trial
court raised for first time on appeal generally not considered). However, our
Supreme Court has held that “this Court and the Court of Appeals review many
claims of sentencing error (improper consideration of an aggravating
circumstance, failure to consider a proper mitigating circumstance, inaccurate
weighing of aggravating and mitigating circumstances, etc.) without insisting
that the claim first be presented to the trial judge.” Bell v. State, 59 N.E.3d 959,
962 (Ind. 2016) (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005)).
[25] Indiana Code section 35-38-1-7.1(a)(2) (2015) provides that when imposing a
sentence, a trial court may consider that the person has a history of criminal or
delinquent behavior. There is nothing in the language of the statute that
prohibits a trial court from considering delinquency adjudications, supported by
3
This section refers to sentencing guidelines. The particular subsection defines a defendant’s prior record as
“any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the
primary offense. . . . All prior juvenile dispositions that are the equivalent of convictions as defined. .
.occurring within 3 years of the commission of the primary offense that would have been criminal if
committed by an adult, shall be included in prior record.”
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underlying facts, or adult criminal convictions entered in other states. We
decline to read such a restriction into the statute.
[26] Further, the trial court’s sentencing decision is supported by other aggravating
factors that were properly identified. Morrell’s adult criminal history consists of
misdemeanor convictions for trespass, disorderly conduct, and domestic
battery. He has prior felony convictions for assault and strangulation. He has
had five petitions to revoke probation filed against him, with two pending.
Additionally, the trial court identified as an aggravating circumstance Morrell’s
history of illegal alcohol and drug use. Morrell admitted to consumption of
alcohol for the first time when he was thirteen years old and to last consuming
alcohol on April 7, 2017.
[27] “A trial court may rely upon only one aggravating circumstance to support an
enhanced sentence.” Veal v. State, 784 N.E.2d 490, 494 (Ind. 2003). Here, the
trial court had several valid aggravating circumstances upon which to enhance
Morrell’s sentence. Excluding Morrell’s IRAS, and juvenile contacts not
reduced to adjudications with supporting facts, the trial court properly found
that Morrell had a criminal history and a history of illegal alcohol and drug use
that warranted an enhanced sentence, especially in light of Morrell’s admission
that he was under the influence of at least drugs, if not alcohol as well, when he
committed the instant offense. We do not find that the trial court abused its
discretion by imposing an enhanced sentence.
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Conclusion
[28] The trial court erred by labeling Morrell’s IRAS as an aggravating factor.
However, the trial court was not prohibited from considering that score along
with Morrell’s criminal history when imposing a sentence. Indiana precedent
allows a trial court to consider juvenile adjudications with supporting facts as a
criminal conviction for purposes of review of a defendant’s criminal history. A
trial court is not prohibited by statute from considering juvenile adjudications
from other states when reviewing a defendant’s criminal history. Morrell’s
criminal history and admission of his history of illegal alcohol and drug use
warrant his enhanced sentence.
[29] Affirmed.
Bailey, J., and Bradford, J., concur.
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