Gary Strugeon-Morris, Jr. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 27 2020, 9:11 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
Kay A. Beehler Curtis T. Hill, Jr.
Attorney at Law Attorney General of Indiana
Terre Haute, Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary Sturgeon-Morris, Jr., March 27, 2020
Appellant-Defendant, Court of Appeals Case
No. 19A-CR-2824
v. Appeal from the
Greene Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Dena A. Martin, Judge
Trial Court Cause No.
28D01-1904-F3-4
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 1 of 4
Case Summary
[1] Gary Sturgeon-Morris, Jr., appeals his five-and-a-half-year sentence for Level 5
felony possession of methamphetamine, challenging the trial court’s finding of
aggravators and mitigators. We affirm.
Facts and Procedural History
[2] On April 12, 2019, a Greene County sheriff’s deputy pulled Sturgeon-Morris
over. At the time, Sturgeon-Morris was on probation and had a suspended
license and an outstanding warrant. He was arrested, and an inventory search
of his car yielded methamphetamine, zip lock bags, digital scales, syringes, and
a rifle.
[3] The State charged Sturgeon-Morris with Level 3 felony dealing in
methamphetamine, Level 6 felony possession of a syringe, Level 6 felony
identity deception, and Class A misdemeanor driving while suspended. A few
months later, Sturgeon-Morris agreed to plead guilty to an added count—Level
5 felony possession of methamphetamine—in exchange for the dismissal of the
four original charges and Cause Number 28D01-1902-F6-49 (in which
Sturgeon-Morris was charged with Level 6 felony possession of
methamphetamine). Sentencing was left to the discretion of the trial court,
except that the court was required to recommend Sturgeon-Morris for
enrollment in a program called Recovery While Incarcerated (“RWI”).
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[4] In sentencing Sturgeon-Morris, the trial court identified three aggravating
circumstances: Sturgeon-Morris’s criminal history, which includes a felony
burglary conviction in 2010 and a felony fraud conviction in 2017; the fact that
Sturgeon-Morris was on probation at the time of this offense; and the fact that
Sturgeon-Morris has done poorly on probation in the past. In discussing
Sturgeon-Morris’s criminal history, the court included “things that have been
dismissed[.]” Tr. p. 23. The court found Sturgeon-Morris’s guilty plea and
acceptance of responsibility to be a mitigating circumstance. The court
imposed an above-advisory sentence of five-and-a-half years in the Department
of Correction but recommended Sturgeon-Morris for RWI and said it would
consider a sentence modification upon successful completion of that program.
[5] Sturgeon-Morris now appeals.
Discussion and Decision
[6] Sturgeon-Morris first contends that the trial court erred by including in its
consideration of aggravating circumstances the existence of prior criminal
charges that were dismissed. But as the State notes, Indiana’s appellate courts
have repeatedly recognized that a record of arrests and criminal charges is
relevant to sentencing because its reveals that “subsequent antisocial behavior
on the part of the defendant has not been deterred even after having been
subject to the police authority of the State and made aware of its oversight of
the activities of its citizens.” Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991);
see also Pickens v. State, 767 N.E.2d 530, 534 (Ind. 2002); Monegan v. State, 756
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 3 of 4
N.E.2d 499, 503 (Ind. 2001); Zavala v. State, 138 N.E.3d 291, 301 (Ind. Ct. App.
2019), trans. denied. Sturgeon-Morris makes no effort to distinguish that
caselaw, and he does not cite any caselaw to the contrary. As such, we cannot
say that the trial court erred in this regard.
[7] Sturgeon-Morris also argues that the trial court should have found “his remorse,
and more importantly, [his] desire to change the trajectory of his life and
behavior” to be a mitigating factor. Appellant’s Br. p. 6. We first note that
Sturgeon-Morris did not ask the trial court to find this mitigator, so his
argument is waived. See Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Waiver notwithstanding, his
argument fails. The only evidence Sturgeon-Morris cites is his own testimony
that he knows he has a drug problem, that he wants to get help, and that he
wants to be able to support his children. We are confident that the trial court
had this testimony in mind when it found as a mitigator that Sturgeon-Morris
was accepting responsibility.
[8] Affirmed.
May, J., and Robb, J., concur.
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