Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019 Page 1 of 14

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

Brian A. Karle

Ball Eggleston, PC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Shawn P. Morrell,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 17, 2019

Court of Appeals Case No.

18A-CR-1282

Appeal from the Tippecanoe 

Circuit Court

The Honorable Donald L. Daniel, 

Senior Judge

Trial Court Cause No.

79C01-1711-F5-151

Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019 Page 2 of 14

Statement of the Case

[1] Shawn P. Morrell appeals from the sentence imposed by the trial court after his 

conviction of one count of domestic battery,1a 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 

domestic battery as a Level 5 felony2and 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 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1282 | January 17, 2019 Page 6 of 14

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);

3

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.