Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020 Page 1 of 11

ATTORNEY FOR APPELLANT

Brian A. Karle

Ball Eggleston, PC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-CR-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 appeals 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 | Opinion 18A-CR-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 aggravating 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 observing 

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 discovered a handgun in the vehicle and placed George under arrest.

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

2 Ind. Code § 35-47-2-1.

3 Ind. Code § 35-48-4-11(a)(1).
Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020 Page 3 of 11

booking 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 handgun

without 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 charges. The court 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 handgun served

concurrent with the 10-year sentence. The court ordered all time served

executed.

4 Ind. Code § 35-43-4-2. 

5 Ind. Code § 35-47-2-1.
Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020 Page 4 of 11

Discussion and Decision

1. Double Jeopardy

[4] George argues his convictions of carrying a handgun without a license and

possession 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 the

entry of both convictions violates Indiana’s double jeopardy principles.

[5] The United States Supreme Court established the Blockburger test, also known as

the “same elements test,” for determining whether a single act that violates

more than one law constitutes multiple offenses for purposes of the Fifth

Amendment Double Jeopardy Clause. Blockburger v. United States, 284 U.S.

299, 52 S. Ct. 180 (1932). Our Indiana Supreme Court expanded upon the

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 used 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. Ct. App. 2018) (internal citation 

omitted) (emphasis in original).
Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020 Page 5 of 11

[6] The facts herein are similar to those in Jarrell v. State, 818 N.E.2d 88 (Ind. Ct.

App. 2004), trans. denied. Jarrell was arrested when he was found to be in

possession of a loaded firearm during a routine traffic stop. He was

subsequently convicted of both possession of a firearm by a serious violent felon

and carrying a handgun without a license. Id. at 91. He appealed those

convictions on double jeopardy grounds. We concluded that, because both

offenses stemmed from carrying the same gun, the convictions violated the

double jeopardy clause. Id. at 93.

[7] Similarly, here, for the carrying of a single handgun, George was convicted of

carrying a handgun without a license and possession of a firearm by a serious

violent felon, and one of his convictions must be reversed. Accordingly, we

vacate George’s conviction of Class A misdemeanor carrying a handgun

without a license. See, e.g., Alexander v. State, 768 N.E.2d 971, 978 (Ind. Ct.

App. 2002) (vacating lower class crime to eliminate double jeopardy violation)

aff’d on reh’g, trans. denied.

2. Sentencing Discretion

[8] George next asserts the trial court abused its discretion when it construed as an

aggravator George’s silence when the Probation Department prepared the

presentence investigation report (“PSI”). A trial court commits an abuse of

discretion if “the decision is clearly against the logic and effect of the facts and

circumstances.” 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 can
Court of Appeals of Indiana | Opinion 18A-CR-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 record and put forth for consideration when 

entering a sentencing statement; and (4) considering reasons inappropriate 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 confidence 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 proper 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 selfincrimination 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. However, 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 cooperate with Probation did “not speak well of 
Court of Appeals of Indiana | Opinion 18A-CR-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 most 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 

cooperate with Probation for preparation of the PSI, George has not 

demonstrated reversible error. Only if the trial court’s decision is “clearly 

against the logic and effect of the facts and circumstances before the court, or 

the reasonable, probable, and actual deductions 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 

that the trial court would have entered the same sentence even absent the 

impermissible factor, it should affirm 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 aggravating 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 | Opinion 18A-CR-2300 | January 23, 2020 Page 8 of 11

Third, his poor conduct at the Department of Correction while serving time for 

his previous convictions resulted in 35 conduct violations in the eight years he 

spent there. Fourth, he was on parole at the time of this 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) (finding 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 if it is 

inappropriate 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 sentence in inappropriate. Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006).
Court of Appeals of Indiana | Opinion 18A-CR-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 felon, the trial court could 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 crime. George was out on parole for armed robbery and 

battery. Indiana law prohibits 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 suggests the small amount of marijuana found in his possession

should entitle him to leniency. Passing 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. Johnson, 986 N.E.2d at 857. Violating the conditions of

parole is an aggravating circumstance that can affect sentencing. Ind. Code 35-

38-1-7.1. This factor differentiates the charge, making it more egregious than 
Court of Appeals of Indiana | Opinion 18A-CR-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 number of prior 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 stints 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 his 

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), trans. denied.

Conclusion

[18] Convicting George of both Level 4 felony unlawful possession of a firearm by a 

serious violent felon and Class A misdemeanor 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 lack 
Court of Appeals of Indiana | Opinion 18A-CR-2300 | January 23, 2020 Page 11 of 11

of cooperation in preparation of the PSI as an aggravating 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, vacate in part, and 

remand.

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

Najam, J. and Bailey, J., concur.