Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 1 of 4

MEMORANDUM DECISION

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 establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Kay A. Beehler

Attorney at Law

Terre Haute, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Marjorie Lawyer-Smith

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gary Sturgeon-Morris, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 27, 2020 

Court of Appeals Case 

No. 19A-CR-2824 

Appeal from the 

Greene Superior Court 

The Honorable 

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 2 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”). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2824 | March 27, 2020 Page 3 of 4

[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 4 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.