Court of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 1 of 11 A TTORNEY FOR A PPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

McConney J. George , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff January 23, 2020 Court of Appeals Ca se No. 18A

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- 2300 Appeal from the Tippecanoe Superior Court The Honorable Steven Meyer, Judge Trial Court Cause No. 79D02

- 1805

- F4

- 20

May, Judge.

[1] McConney J. George a ppeals his 10

- year - and

- 180

- day sentence for Level 4 felony unlawful possession of a firearm by a serious violent felon , 1 Class A

1 Ind. Code § 35

- 47

- 4

- 5(c).Court of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 2 of 11 misdemeanor carrying a handgun without a license , 2 and Class B misdemeanor possession of marijuana

. 3 He raises three issues on appeal, which we restate as :

1. whether his conviction of carrying a handgun without a license violates the constitutional prohibition against double jeopardy,

2. whether the trial court abused its discretion at sentencing by considering George’s failure to cooperate during the presentence investigation interview as an aggra vating circumstance , and

3. whether his sentence is inappropriate in light of the nature of his offenses and his character

.

We affirm in part, vacate in part , and remand

. 

# Facts and Procedural History

[2] On May 23, 2018, Officer Scott Swick initiated a traffic stop after observi ng George’s car run a stop sign

. When Officer Swick approached George’s car window, he immediately detected the odor of marijuana and called for a K9 unit

. The K9 indicated the presence of narcotics and police searched the car

. Police discover ed a handgun in the vehicle and placed George under arrest

. T he serial number on the handgun revealed the gun had been stolen. During

2 Ind. Code § 35

- 47

- 2

- 1.

3 Ind. Code § 35

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- 2300 | January 23, 2020 Page 3 of 11 b ooking at Tippecanoe County Jail , police found a baggie of marijuana in George’s pocket.

[3] On May 25, 2018, the State charged George with Class A misdemeanor carrying a handgun without a license , Level 6 felony theft of a firearm , 4 Class B misdemeanor possession of marijuana , Level 4 felony unlawful possession of a firearm by a serious violent felon , and Level 5 felony carrying a handgu n

w ithout a license with a prior felony conviction

. 5 The court held a bifurcated jury trial from August 20 to 22, 2018

. George was acquitted of theft of the firearm but found guilty of all remaining charge s. The c ourt entered judgment of conviction for carrying a handgun without a license, possession of marijuana , and unlawful possession of a firearm by a serious violent felon

. The

court sentenced George to 10 years for unlawful possession of a firearm by a serious violent felon, 1 year for carrying a handgun without a license , and 180 days for possession of marijuana

. The court ordered the 180 days for possession of marijuana served consecutive to the 10

- year sentence for possession of the firearm, and it ordered the year for carrying a han dgun serve d

c oncurrent with th e 10- year sentence. The court ordered all time serve d

e xecuted.

4 Ind. Code § 35 -43-4-2.

5 Ind. Code § 35

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# Discussion and Decision
1 . Double Jeopardy

[4] George argues his convictions of carrying a handgun without a license an d
p ossession of a firearm by a serious violent felon violate the constitutional prohibition against double jeopardy because George’s possession of the same handgun at the same time is used to support both offenses

. The State agrees th e

e ntry of both convictions violate s Indiana’s double jeopardy principles.

[5] The United States Supreme Court established the Blockburger test , also known a s th e “same elements test ,” for determining whether a single act that violate s more than one law constitute s multiple offenses for purposes of the F ifth Amendment D ouble J eopardy Clause

. Blockburger v. United States , 284 U.S. 299, 52 S. Ct. 180 (1932)

. Our Indiana Supreme Court expanded upon t he Blockburger test to include both the statutory elements of the conviction and the actual evidence used to convict

. Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999).

Two offenses are the “same offense” in violation of Indiana’s double jeopardy clause if, with respect to either the statutory elements of the challenged crimes or the actual evidence use d to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. We review de novo whether the defendant’s convictions violate this provision.

Shultz v. State , 115 N.E.3d 1280, 1283 (Ind. C t. App. 2018) (internal citation omitted) (emphasis in original).Court of Appeals of Indiana | Opin ion 18A

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[6] The fa cts he rein are si milar to those in Ja rrell v. State , 818 N.E.2d 88 (Ind. Ct. App. 2004), trans. denied

. J a rrell w as arrested when h e w as found to be i n possession of a l oaded f irearm du ring a r outine t raffic st op. He w as subsequently convicted of both possessi on of a f irearm b y a se rious violen t felon and carrying a h andgun without a l icense. Id

. at 91. He a ppealed those

con victions on do uble j eopardy g rounds. We concluded that , because both offenses stemmed from c arrying t he sa me g un, the convictions violated the double j eopardy c lause

. Id. at 93.

[7] Similarly, here, for t he c arrying of

a si ngle handgun, George w as c onvicted of carrying a h andgun without a l icense a nd p ossession of a fi rearm b y a se rious violent felon, a nd one of his convictions must be r eversed. Accordingly, w e
vacate G eorge’s conviction of Class A m isdemeanor c arrying a ha ndgun withou t a l icense. See , e.g
. , Alexander v. State , 768 N.E.2d 971, 978 (Ind. C t. App. 2002) (vacating lower cl ass crime to eliminate dou ble j eopardy v iolation) aff ’d on reh ’g, trans. denied

. 

## 2

. Sentencing D iscretion

[8] George next asserts the trial court abused its discretion when it construe d as an aggravator George’s silence when the Probation Department prepared the presentence investigation report (“PSI”)

. A trial court commits an abuse of di scretion if “the decision is clearly against the logic and effect of the facts a nd

c ircumstances.” Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007) , clarified on reh’g 875 N.E.2d 218 (Ind. 2007). There are four ways that a trial court canCourt of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 6 of 11 abuse its discretion at sentencing : (1) failing to enter a sentencing statement altogether; (2) entering a sentencing statement explaining reasons for imposing the sentence when those reasons are not supported by the record; (3) failing to include reasons supported by the reco rd and put forth for consideration when entering a sentenc ing statement; and (4) considering reasons i nappropriate as a matter of law. Id. at 490

- 91. If the trial court abused its discretion in one or more of those ways and we are unable to “ say with con fidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record , ” then we will remand for resentencing. Id. at 491.

[9] George argues the trial court abused its discretion when it found George’s silence during preparation of the PSI to be an aggravating factor

. The purpose of a PSI is to examine any possible aggravating and mitigating factors across a wide breadth of topics to inform the court as to pr oper sentencing. Dillard v.
State , 827 N.E.2d 570, 576 (Ind. Ct. App. 2005) , trans. denied

.

[10] The court acknowledged George ’s Fifth Amendment right against self

incrimination but noted the majority of the questions on the PSI did not implicate that right. George initially refused to give any information to Probation for the PSI

. H owever, he submitted a significant amount of the information sought for the PSI on the day before sentencing and at the sentencing hearing , including a lengthy personal statement that George provided to the judge

. ( See Tr. Vol. 3 at 31

- 40 .) The court further noted that George’s continued refusal to co ope rate with Probation did “not speak well ofCourt of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 7 of 11 his character” and there was “no excuse” for his lack of cooperation. ( Id. at 51. ) Contrary to George’s argument, his refusal to cooperate with Probation does not appear to have had anything to do with his Fifth Amendment right to remain silent , because he provided m o st of the information directly to the court at sentencing

. As a poor attitude is a valid aggravator , we cannot find the trial

court abused its discretion

. See Adams v. State , 120 N.E.3d 1058, 1065 (Ind. Ct. App. 2019) ( holding Adams ’ attitude was correctly considered an aggravating factor warranting an enhanced executed term).

[11] Even if the court should not have found an aggravator in George’s failure to

co o p e rate wi th Probation for preparation of the PSI, George has not demonstrated reversible error

. Only if the trial court’s decision is “ clearly agai nst the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual d eductions to be drawn therefrom ” can an abuse of discretion be found. K.S. v. State , 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M. , 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). If the reviewing court “ can identify sufficient aggravating circumstances to persuade it tha t the trial court would have entered the same sentence even absent the impermissible factor, it should aff irm the trial court ’ s decision. ” Groves v. State , 787 N.E.2d 401, 408 (Ind. Ct. App. 2003) (quoting Day v. State , 560 N.E.2d 641, 643 (Ind. 1990) ), trans. denied.

[12] Here, the trial court considered five other agg ravating factors

. First, George’s criminal history includes four convictions of armed robbery and battery resulting in bodily injury. Second, his violent crimes are repetitive in nature.Court of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 8 of 11 Third, his poor conduct at the D epartment of Correction while serving time for his previous convictions resulte d in 35 conduct violations in the eight years he spent there. Fourth, h e was on parole at the time of t h is offense. Fifth, prior rehabilitation efforts had been unsuccessful , as George continued committing crimes after serving time in prison

. In light of those other aggravators, we have little doubt the court would have entered the same sentence even if it had not considered George’s silence as an aggravating factor. See , e.g ., Bacher v. State , 722 N.E.2d 799, 803 (Ind. 2000) (find ing a sentence may be upheld despite a single incorrect aggravating factor , if other aggravating factors are present ).


## 3

. Appellate Rule 7(B)

[13] Finally, George asserts his 10

- year - and

- 180

- day sentence is inappropriate. Indiana Appellate Rule 7(B) gives us the authority to revise a sentence i f it is in appropriate in light of the nature of the offense and the character of the offender. Williams v. State , 891 N.E.2d 621, 633 (Ind. Ct. App. 2008 ). Our review is deferential to the trial court’s decision, and our goal is to determine whether the appellant’s sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied

. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. Johnson v.
State , 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). The appellant bears the burden of demonstrating his se ntence in inappropriate. Child r

ess v. State , 848 N.E.2d 1073, 1080 (Ind. 2006).Court of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 9 of 11 [14] When considering the nature of the offense, our review of appropriateness starts with the advisory sentence. Clara v. State , 899 N.E.2d 733, 736 (Ind. Ct. App. 2009)

. George’s conviction of possession of marijuana , a Class B misdemeanor , exposed him to a possible sentence of no more than 180 days.
See Ind. Code 35

- 50

- 3

- 3. For Level 4 felony unlawful possession of a firearm by a serious violent felo n, the trial court c ould sentence George to a fixed term of

two to twelve years, with an advisory sentence of six years. See Ind. Code 35

- 50

- 2

- 5.5

. The court sentenced George to 10 years and 180 days.

[15] George argues his possession of a firearm by serious violent felon offense is less egregious than the standard offense because the loaded gun was not used in the commission of a c rime. George was out on parole for armed robbery and battery

. Indiana law prohibi ts felons from possessing firearms. The elements of the crime do not require use of the firearm in commission of a crime, and thus we reject George’s argument.

[16] George also notes he was being regularly drug tested as a requirement of his probation and sugg ests the small amount of marijuana found in his possession should entitle him to leniency. P assing drug test results seem diminished in light of being caught with marijuana while on parole. He also argues the small amount of marijuana makes the offense “less egregious” than the typical possession charge. Johnso n , 986 N.E.2d at 857

. Violating the conditions of parole is an aggravating circumstance that can affec t sent encing. I nd. Code 35

- 38

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- 7.1

. This factor differentiates the charge, making it more egregious thanCourt of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 10 of 11 typical. Based on these factors, we conclude the nature of George’s offenses does not render his sentence inappropriate

.

[17] When considering the character of the offender, one relevant fact is the appellant’s criminal history. Rutherford v. State , 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of criminal history in assessing a defendant’s character varies based on the gravity, nature, and numb er of pr ior offenses in relation the current offense. Id. George ’s criminal history includes five felony convictions : theft , armed robbery , battery , and criminal confinement resulting in serious bodily injury

. During previous stint s at the DOC, George ’s behavior was described as “terrible” and he accrued “one of the longest lists of DOC conduct violations

. ” (Tr. Vol. 3 at 50.) In light of George’s serious and violent criminal history, and his conduct violations while in prison, we cannot say hi s sentence is inappropriate in light of his character. See , e.g. , Stokes v. State , 947 N.E.2d 1033, 1039 (Ind. Ct. App. 2011) ( violent felon with a significant criminal history did not meet burden of persuasion to find his sentence inappropriate in light of the nature of his offense and character) , tra ns. denied

. 

## Conclusion

[18] Convicting George of both Level 4 felony unlawful possession of a firearm by a serious violent felon and Class A m isdemeanor carrying a handgun without a license violates Indiana’s double jeopardy prohibition

. Therefore, we must vacate George’s conviction of misdemeanor carrying a handgun without a license. The trial court did not abuse its discretion by interpreting George’s lackCourt of Appeals of Indiana | Opin ion 18A

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- 2300 | January 23, 2020 Page 11 of 11 of cooperation in preparation of the PSI as an aggr avating factor at sentencing. Further, George’s sentence is not inappropriate in light of the nature of his offenses and his character

. Accordingly, we affirm in part, v acate in part , and remand

.

[19] Affirmed in part ; vacated in part; and remanded

.

Naj am, J. and Bailey, J., c oncur
.