Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 1 of 13

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

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Zachary R. Griffin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert L. Moore,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

January 31, 2020

Court of Appeals Case No.

18A-CR-2870

Appeal from the Dearborn 

Superior Court

The Honorable Jonathan N. 

Cleary, Judge

Trial Court Cause No.

15D01-1605-F4-26

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2870 | January 31, 2020 Page 2 of 13

Case Summary and Issue

[1] Following a bench trial, Robert Moore was convicted of dealing in a narcotic 

drug, a Level 5 felony, and the trial court sentenced him to serve six years in the 

Indiana Department of Correction (“DOC”). Moore appeals his sentence, 

presenting the sole issue of whether his six-year sentence is inappropriate in 

light of his character and the nature of the offense. Concluding Moore’s 

sentence is not inappropriate, we affirm.

Facts and Procedural History 

[2] The underlying facts are as follows:

On May 13, 2016, Trevor Adkins (“Adkins”) was arrested on an 

outstanding warrant for possession of heroin in Dearborn 

County, Indiana. Adkins volunteered to contact drug dealers he 

had purchased from in the past to assist police officers who 

conduct controlled drug buys.

Later that same day, Adkins voluntarily contacted a heroin 

dealer who was later identified as Kevin Sanders (“Sanders”). 

The Greendale Police Department orchestrated the logistics of 

the controlled buy, and Adkins relayed that information to 

Sanders. Adkins and Sanders agreed to meet at Party at Trav’s 

Fireworks (“Trav’s”).

Officer Dustin Hatfield (“Officer Hatfield”) drove Adkins to 

Trav’s in his personal vehicle, a blue Ford F–150 (“Ford”). . . .

Upon arriving at Trav’s, the officer transporting Adkins 

requested that the meet-up location be changed due to officer 
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safety because it was dark, the lighting [at Trav’s] was poor[.] 

Adkins asked Sanders to meet him at Ameristop’s parking lot, 

which shared a parking lot with Trav’s but had better lighting. 

Sanders called A[d]kins on the way to Ameristop and informed 

Adkins that he was lost and needed to stop and get gas. Adkins 

agreed to meet Sanders at a Shell Gas Station which was 

approximately two-tenths of a mile from the Ameristop. Sanders 

told Adkins to look for a white Camaro.

Officer Hatfield observed only one white [Camaro] in the parking 

lot[,] and he parked his truck directly in front of the Camaro. He 

was able to see the driver and passenger in the Camaro, and 

Adkins identified the passenger as Sanders. Before Adkins exited

the Ford, he and Officer Hatfield watched Sanders climb into the 

back seat of the Camaro. Adkins then approached the Camaro, 

entered the vehicle, and sat in the front passenger seat. Officer

Hatfield had a clear view of Adkins and the driver, who was later 

identified as Moore. The officer saw Moore give Adkins an 

unidentifiable object and watched Adkins hand Moore the $200 

buy money. As they had planned, Adkins signaled to Officer 

Hatfield when the transaction was complete. Thereafter, Adkins 

gave Officer Hatfield a clear plastic bag containing a white 

substance that was later identified as fentanyl.

Three officers approached the Camaro after Adkins purchased 

the fentanyl from Moore. As Officer Hatfield removed Moore 

from the driver’s seat, the money Adkins gave to Moore fell from 

his lap. Sanders and Moore were immediately arrested, and the 

officers searched the vehicle. During the vehicle search, the 

officers found a rock-like substance wrapped in brown paper in 

the backseat.

The two substances were submitted to a testing lab, and both 

were identified as fentanyl. . . . On May 16, 2016, the State 

charged Moore with Level 4 felony conspiracy to commit dealing 

in a narcotic weighing at least one gram, and Level 5 felony 
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dealing in a narcotic drug. The State also alleged that Moore is 

an habitual offender.

Moore v. State, No. 15A01-1711-CR-2767, 2018 WL 3192898, at *1-2 (Ind. Ct. 

App. June 29, 2018) (quotations and record citations omitted). 

[3] Following a bench trial, Moore was found guilty as charged. A pre-sentence 

investigation report was prepared and filed with the trial court. On October 25, 

2017, the trial court held a sentencing hearing. Moore’s girlfriend testified that 

Moore was involved in a car accident in 2014. Days after the accident, Moore 

suffered a massive heart attack and underwent heart surgery and has endured 

numerous bypasses since. She testified that he has suffered from complications 

and has ongoing vascular and cardiac issues requiring frequent medical care. 

[4] In imposing a sentence, the trial court detailed the nature of Moore’s offense: it

was a buy for what the buyer believed to be heroin but was actually fentanyl, an 

extremely dangerous drug; the evidence demonstrated this was “not a user 

selling a little, to go use a little” but rather a “drug deal for profit”; and Moore’s 

culpability was high and the act took “a significant amount of time[.]” [Prior 

Case] Transcript of the Evidence, Volume 2 at 53. 

[T]his wasn’t a moment where [Moore]’s intoxicated and 

something just happens . . . [I]f it was a regular business deal, I 

would have commended him for his patience, and courtesies, as 

they’re talking on the phone, he drove all over this county trying 

to find the location, he was very respectful, and if it was a regular 

business deal, it would have been commendable. But, the fact 

that he was delivering fentanyl, makes his culpability high, this 

was not a kneejerk decision, this was a plan. The severity of the 
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crime and potential damage to others is very high . . . . Heroin is 

a deadly drug in itself, but if a heroin user believes they got a 

gram of heroin, and it’s a full gram of fentanyl, that’s extremely 

dangerous and deadly in its self [sic]. 

Id. at 53-54. The trial court found Moore’s serious medical condition a 

mitigating factor. In addition, the trial court considered Moore’s juvenile and 

adult criminal history, as well as evidence demonstrating Moore’s extensive 

knowledge of drugs and gang activity. The trial court sentenced Moore to serve 

five years for his dealing in a narcotic drug conviction and ten years for his

conspiracy to commit dealing in a narcotic drug to be served concurrently. The 

trial court enhanced Moore’s sentence by eighteen years based on his habitual 

offender status. Ultimately, Moore was sentenced to serve an aggregate 

sentence of twenty-eight years executed in the DOC. See [Prior Case] 

Appellant’s Second Corrected Appendix, Volume 3 at 69-74.

[5] Moore appealed and challenged the sufficiency of the evidence for his 

convictions of dealing in a narcotic drug and conspiracy to commit dealing in a 

narcotic drug weighing at least one gram. On June 29, 2018, in an unpublished 

Memorandum Decision, a panel of this court affirmed Moore’s Level 5 felony 

dealing in a narcotic conviction but reversed his conviction for Level 4 felony 

conspiracy to commit dealing in a narcotic drug, concluding that the State 

failed to prove that the weight of the fentanyl was at least one gram. Moore, 

2018 WL 3192898, at *3-4. Therefore, this court remanded the case to the trial 
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court with instructions to enter judgment for conspiracy to commit dealing in a 

narcotic drug as a Level 5 felony, and to impose a new sentence.1 Id.

[6] On November 2, 2018, the trial court held a sentencing hearing during which 

the trial court took judicial notice of the underlying bench trial, pre-sentence 

investigation report, and all documents on file. See Transcript of [November 2, 

2018] Sentencing Hearing, Volume II at 4-5.2 The trial court again found 

Moore’s physical health a mitigating factor and reiterated the nature of the 

offense: that the drug in this case was between .97 grams and 1.05 grams of 

fentanyl; the potential of harm or death to the user was high because “if 

Fentanyl had been in the same dosages as Heroin had been used, the outcome 

for the user is obviously much different, if not death”; and Moore’s culpability 

was high as he was willing to sell to an informant in the presence of an 

undercover officer. Id. at 23. 

[7] At the conclusion of the hearing, the trial court imposed a six-year sentence. 

The trial court subsequently issued its Abstract of Judgment entering the 

1

Indiana Code section 35-48-4-1(c) states that the offense is a Level 4 felony if the amount of drug involved is 

at least one gram but less than five grams. Therefore, given that the State failed to prove Moore had at least 

one gram, Moore could not be convicted of Level 4 felony dealing in a narcotic drug. However, regardless of 

the amount, Moore could be convicted dealing in a narcotic drug as a Level 5 felony. See Ind. Code 35-48-4-

1(a)(2).

2 The State also moved to dismiss Moore’s habitual offender enhancement at this hearing. Shortly after 

Moore was originally sentenced in October 2017, our supreme court issued its opinion in Calvin v. State, 87 

N.E.3d 474, 479 (Ind. 2017), which held that, under the plain meaning of the habitual-offender statutes, all 

non-Indiana felonies count as Level 6 felonies. Therefore, based on Moore’s prior convictions, the State 

moved to dismiss Moore’s habitual offender status as it was no longer a valid enhancement and the trial court 

granted the motion. See Tr. of [November 2, 2018] Sentencing Hearing, Vol. II at 4.
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following judgment: a finding of guilty on Count I, dealing in a narcotic drug, a 

Level 5 felony; finding of not guilty on Count II, conspiracy to commit dealing 

in a narcotic drug, a Level 4 felony; and dismissal of Count III, habitual 

offender status. See Corrected Appellant’s Appendix, Volume 3 at 169-170. 

The trial court sentenced Moore to serve six years on Count I to be executed in 

the DOC. See id. 

[8] Moore appealed and the State filed a Motion to Remand with this court arguing 

that the trial court failed to follow this court’s sentencing instructions as 

directed in Moore. On March 25, 2019, this court granted the State’s motion in 

part, dismissed Moore’s appeal without prejudice, and remanded the case to the 

trial court with instructions to reconsider its sentencing order in light of this 

court’s June 29, 2018 Memorandum Decision. Id. at 199. 

[9] Following a sentencing hearing on April 30, 2019, during which no additional 

evidence was presented, the trial court issued an Amended Judgment of 

Conviction and Sentencing Order, in which Count II, conspiracy to commit 

dealing in a narcotic drug as a Level 5 felony, was merged into Count I due to 

double jeopardy concerns. See Appealed Order at 1.3 The trial court entered 

judgment of conviction on Count I, dealing in a narcotic drug, a Level 5 felony, 

and sentenced Moore to serve six years. Moore now appeals. 

3 Count III remained dismissed.
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Discussion and Decision 

I. Inappropriate Sentence

A. Standard of Review

[10] Article 7, sections 4 and 6 of the Indiana Constitution authorize independent 

appellate review and revision of sentences through Indiana Appellate Rule 7(B). 

King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides, 

“The Court may revise a sentence authorized by statute if, after due 

consideration of the trial court’s decision, the Court finds that the sentence is 

inappropriate in light of the nature of the offense and the character of the 

offender.” Sentencing decisions rest within the discretion of the trial court and, 

as such, should receive considerable deference. Cardwell v. State, 895 N.E.2d 

1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by 

compelling evidence portraying in a positive light the nature of the offense (such 

as accompanied by restraint, regard, and lack of brutality) and the defendant’s 

character (such as substantial virtuous traits or persistent examples of good 

character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). 

[11] The defendant bears the burden of demonstrating his sentence is inappropriate 

under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and 

we may look to any factors in the record for such a determination, Reis v. State, 

88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether we regard a 

sentence as [in]appropriate at the end of the day turns on our sense of the 

culpability of the defendant, the severity of the crime, the damage done to 
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others, and myriad other factors that come to light in a given case.” Cardwell, 

895 N.E.2d at 1224. 

B. Nature of the Offense

[12] Moore contends his six-year sentence is inappropriate in light of the nature of 

his offense because the aggregate weight of the drugs was approximately one 

gram, he was not in possession of a weapon, and no one was injured during the 

commission of the crime. We are unpersuaded that these factors render 

Moore’s sentence inappropriate.

[13] The advisory sentence is the starting point our legislature has selected as an 

appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. 

The sentencing range for a Level 5 felony is between one and six years, with an 

advisory sentence of three years. Ind. Code § 35-50-2-6(b). Here, the trial court 

sentenced Moore to six years, the maximum sentence, for his dealing in a 

narcotic drug conviction.

[14] The nature of the offense is found in the details and circumstances of the 

commission of the offense and the defendant’s participation in it. Washington v. 

State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. When 

evaluating a defendant’s sentence that deviates from the advisory sentence, we 

consider whether there is anything more or less egregious about the offense as 

committed by the defendant that distinguishes it from the typical offense 

accounted for by our legislature when it set the advisory sentence. Moyer v. 

State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017), trans. denied. 
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[15] As the trial court acknowledged, Moore’s crime was severe and the potential 

damage and harm to others was very high. Moore sold what the buyer believed 

to be heroin but was actually fentanyl, a much more powerful and dangerous 

drug. As the trial court explained at the 2017 sentencing hearing, “Heroin is a 

deadly drug in itself, but if a heroin user believes they got a gram of heroin, and 

it’s a full gram of fentanyl, that’s extremely dangerous and deadly in its self 

[sic].” [Prior Case] Tr., Vol. 2 at 53-54. Therefore, had the buyer in this case 

actually been a user rather than an informant, who used the drugs believing it 

was heroin, the consequence could have been fatal. Although Moore did not 

employ a weapon or injure anyone during the transaction, the mere “absence of 

physical harm is not an automatic mitigating circumstance such that it would 

require a lesser sentence than would otherwise be imposed.” Neale v. State, 826 

N.E.2d 635, 638 (Ind. 2005). 

[16] The trial court also considered Moore’s high culpability in imposing the 

maximum sentence. The evidence demonstrates that the transaction was a 

carefully crafted plan requiring a great deal of patience, communication, and a 

significant amount of time; it was not an impulsive and thoughtless act. The 

nature of the offense is extremely serious given that Moore sold approximately 

one gram of fentanyl. In sum, we conclude that the nature of the offense does 

not warrant revision of Moore’s maximum sentence.

C. Character of Offender

[17] Moore also argues his character renders his sentence inappropriate. Although 

Moore acknowledges his criminal history, he argues that the “aggravating effect 
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of his criminal history is tenuous and substantially outweighed by [his] 

significant medical conditions. [His] debilitating and potentially terminal 

medical conditions work a substantial hardship on him during any period of 

incarceration.” Appellant’s Amended Brief at 13. We disagree.

[18] The “character of the offender” portion of the Rule 7(B) standard permits a 

broader consideration of the defendant’s character. Anderson v. State, 989 

N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “A defendant’s life and 

conduct are illustrative of his or her character.” Morris v. State, 114 N.E.3d 531, 

539 (Ind. Ct. App. 2018), trans. denied. And the trial court’s recognition or nonrecognition of aggravators and mitigators serves as an initial guide in 

determining whether the sentence imposed was inappropriate. Stephenson v. 

State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016). 

[19] When considering the character-of-the-offender prong of our inquiry, one 

relevant consideration is the defendant’s criminal history. Rutherford v. State, 

866 N.E.2d 867, 874 (Ind. Ct. App. 2007). “The significance of a criminal 

history . . . varies based on the gravity, nature, and number of prior offenses in 

relation to the current offense.” Id. And this court has held that “[e]ven a 

minor criminal record reflects poorly on a defendant’s character.” Reis, 88 

N.E.3d at 1105. 

[20] Moore’s pre-sentence investigation report reveals that he has an extensive 

criminal history which began in 1998 when Moore was nine years old. 

Corrected Appellant’s App., Vol. 3 at 78. As a juvenile, Moore was 
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adjudicated a delinquent for various crimes, including assault; two 

adjudications for theft; two adjudications for violating a court order; 

unauthorized use of a motor vehicle; possession of marijuana; receiving stolen 

property in an amount greater than $5,000; fleeing a police officer; and 

aggravated robbery. Moore’s adult criminal history is comprised of convictions 

for robbery, robbery with specifics, felonious assault with specifics, having 

weapons under disability, drug possession, and driving under suspension. See 

id. at 78-81.4 There is no question that Moore’s criminal history reflects poorly 

on his character.

[21] The trial court found Moore’s medical issues, which are well documented in the 

record, a mitigating factor. Moore’s DOC medical records were admitted into 

evidence at the November 2, 2018 sentencing hearing and testimony revealed 

that Moore underwent a heart procedure while incarcerated. See generally

[Confidential] Volume of Exhibits, Volume 1-2. Although we are sympathetic 

to Moore’s various medical issues, every incarceration involves hardship, 

Moore’s medical condition pre-dates the instant offense, and there is no 

evidence he is not receiving adequate medical care while incarcerated. 

Furthermore, despite Moore’s poor health and frequent contact with our justice

system, he was not deterred from committing the instant and potentially lethal

offense. See Rutherford, 866 N.E.2d at 874 (“Despite . . . frequent contact with 

the criminal justice system and the police power of the State, [the defendant] 

4 These crimes were all prosecuted in Ohio.
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was not deterred from committing the present offense.”). We conclude 

Moore’s sentence is not inappropriate in light of his character.

Conclusion

[22] After due consideration of the sentence imposed by the trial court, the nature of 

Moore’s offense, and his character, we conclude Moore’s six-year sentence is 

not inappropriate. Accordingly, we affirm.

[23] Affirmed.

Bradford, C.J., and Altice, J., concur.