Court of Appeals of Indiana | Opinion 79A04-1703-CR-477| September 11, 2017 Page 1 of 14

ATTORNEY FOR APPELLANT

Brian A. Karle

Ball Eggleston, P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Shannon D. Moyer,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 11, 2017

Court of Appeals Case No.

79A04-1703-CR-477

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause Nos.

79D02-1603-F4-7

79D02-1603-F6-225

Crone, Judge.
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Case Summary

[1] Facing charges under three separate causes, Shannon D. Moyer pled guilty 

pursuant to a single plea agreement to three felony offenses and a habitual 

offender count. Sentencing was left to the trial court’s discretion, and the trial 

court sentenced him to an aggregate term of twenty years. In this consolidated 

appeal, Moyer challenges the portion of his sentence attributable to the offenses 

in one of the three causes, claiming that the trial court abused its discretion in 

its treatment of aggravating and mitigating factors during sentencing and that 

his sentence is inappropriate in light of the nature of the offenses and his 

character. He also contends that the trial court erred in calculating his jail time

credit. As a preliminary matter, we find that Indiana precedent requires our 

review of Moyer’s entire sentence, not merely a portion of it. Concluding that 

the trial court neither abused its discretion nor imposed an inappropriate 

sentence, we affirm his twenty-year aggregate sentence. However, we remand 

for an adjustment to his jail time credit.

Facts and Procedural History

[2] On November 6, 2015, Moyer accompanied Kathy Jo Adams to a discount 

store in Lafayette and gave her money to purchase a shotgun. On the purchase 

form, Adams stated that she was not acquiring the firearm for another person. 

After they left the store, she gave the shotgun to Moyer, who was not permitted 

to possess a firearm due to a 2002 class B felony conviction for dealing in a 

controlled substance. Adams was later convicted on charges related to the 

purchase of the shotgun. 
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[3] On November 16, 2015, Indiana Department of Natural Resource (“DNR”)

officers were patrolling a wooded area in Tippecanoe County and saw Moyer’s 

truck nearby. It was deer season, and the officers looked inside the truck and 

observed, in plain view, various items related to hunting. Shortly thereafter, 

Moyer came out of the woods, and the officers approached him. Moyer 

admitted to walking on the property but denied hunting. Upon further

investigation, the officers located a 12-gauge shotgun hidden under a pile of tree 

limbs and leaves within the wooded area. Appellant’s App. Vol. 2 at 70, 138. 

Moyer denied that the shotgun belonged to him. Officers later obtained

surveillance footage showing Moyer accompanying Adams to the discount 

store for the purchase of the firearm. 

[4] In 2016, Moyer and his girlfriend (“Girlfriend”) co-parented their two-year old 

son and Girlfriend’s nine-year old daughter. One day in March 2016, Moyer 

was babysitting the children while he was under the influence of amphetamines 

and marijuana. According to Girlfriend’s daughter, Moyer took the children to 

get ice cream and was swerving as he drove. He eventually hit a curb and some 

poles, and the vehicle came to a stop. He exited the vehicle and kept nodding 

off and falling down in the middle of the road. The young girl helped him get 

up and out of the roadway. She later told officers that she was “really scared” 

and “worried” for the two-year-old’s life, so she got him out of the vehicle and 

knocked on doors until someone answered so that she could ask for directions 

home. Id. at 146-47. Police eventually found Moyer passed out in a wooded 
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area nearby and transported him to a hospital, where he tested positive for 

amphetamines and cannabinoids. 

[5] In March 2016, the State charged Moyer in Cause 79D02-1603-F6-225 (“Cause 

225”) with level 6 felony neglect of a dependent, level 6 felony possession of 

methamphetamine, class A misdemeanor possession of a schedule IV 

controlled substance, class A misdemeanor possession of paraphernalia, level 6 

felony operating a vehicle while intoxicated (“OWI”) with a minor passenger in 

vehicle, class A misdemeanor OWI, class C misdemeanor OWI while having a 

schedule I or II controlled substance in the body, and class A misdemeanor 

operating a vehicle while suspended. Later that month, the State charged 

Moyer in Cause 79D02-1603-F4-7 (“Cause 7”), with level 4 felony unlawful 

possession of a firearm by a serious violent felon (“SVF”) and filed a habitual 

offender information. 

[6] In January 2017, Moyer pled guilty via open plea agreement to level 6 felony 

neglect of a dependent and level 6 felony OWI with a minor passenger in Cause 

225 and level 4 felony SVF firearm possession in Cause 7. He admitted to 

being a habitual offender in Cause 7 in exchange for dismissal of all remaining 

charges in Cause 225 and dismissal of a third cause against him, 79D05-1603-

F6-288 (“Cause 288”), which included one count of auto theft and one count of 

check deception, both as level 6 felonies. The trial court sentenced him in 

Cause 225 to concurrent terms of one year for neglect of a dependent and two 

years for OWI with a minor passenger. In Cause 7, the trial court imposed a 

ten-year sentence on the SVF count and a habitual offender enhancement of
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eight years, with fourteen years executed, two years in community corrections, 

and two years’ probation. The trial court ordered that the sentences in the two

causes run consecutive to each other, for an aggregate sentence of twenty years. 

[7] Moyer filed a notice of appeal in Cause 7 and a petition for belated appeal in 

Cause 225, which was granted. He subsequently filed a petition to consolidate

the appeals, which also was granted. Additional facts will be provided as 

necessary.

Discussion and Decision

Section 1 – We must review Moyer’s aggregate sentence for all 

offenses under the plea agreement.

[8] As a preliminary matter, we observe that Moyer appears to challenge only the 

portion of his sentence attributable to Cause 7, i.e., the SVF conviction with 

habitual offender enhancement. In Webb v. State, 941 N.E.2d 1082, 1087-88 

(Ind. Ct. App. 2011), trans. denied, we held that a defendant may not limit our 

review of his sentence by merely challenging an individual sentence within a 

single order that includes multiple sentences. There, the defendant pled guilty 

without a plea agreement to robbery, six counts of fraud, and three additional

counts in one cause, and misdemeanor OWI from a separate but consolidated 

cause. Id. at 1084-85. On appeal, he challenged only his twenty-year 

maximum sentence for robbery rather than his twenty-five-year aggregate 

sentence. Id. at 1085. In holding that our review could not be so limited, we 

relied on Cardwell v. State, 895 N.E.2d 1219, 1224-25 (Ind. 2008), where our 
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supreme court emphasized the importance of focusing our review on the 

aggregate sentence rather than the length of the sentence on an individual 

count. Webb, 941 N.E.2d at 1087-88.

[9] Here, the trial court issued separate sentencing orders for Causes 225 and 7 and 

ordered that the sentences run consecutively. Notwithstanding the separate 

sentencing orders, Moyer pled guilty pursuant to a single plea agreement that 

covered three separate causes against him. The plea agreement is captioned 

with all three cause numbers and articulates the convictions or dismissal of 

counts under each. Appellant’s App. Vol. 2 at 90. Specifically, in exchange for 

Moyer’s guilty plea to a total of three counts plus a habitual offender count, 

Cause 288 was dismissed in its entirety, and the remaining six counts were 

dismissed under Cause 225. To review his sentence only with respect to the 

SVF and habitual offender counts, as he suggests, would essentially amount to 

ignoring important aspects of the contract between the parties, such as the 

substantial benefit that he received in exchange for his guilty plea. The plea 

agreement represented a single transaction that “embodie[d] the entire 

agreement between the parties.” Id. We believe that the reasoning in Cardwell

and Webb extends to circumstances such as these where a defendant pleads 

guilty via a single plea agreement to offenses charged under separate cause 

numbers. We review Moyer’s aggregate twenty-year sentence accordingly.
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Section 2 – The trial court acted within its discretion in its 

treatment of aggravating and mitigating factors during 

sentencing.

[10] Moyer challenges the trial court’s treatment of aggravating and mitigating 

factors during sentencing. Sentencing decisions rest within the sound discretion 

of the trial court, and as long as a sentence is within the statutory range, it is 

subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 

482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion 

occurs where the trial court’s decision is clearly against the logic and effect of 

the facts and circumstances before it, or the reasonable, probable, and actual 

deductions to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. 

Ct. App. 2014). 

[11] One of the ways in which a trial court may abuse its discretion in sentencing is 

by relying on reasons that are improper as a matter of law. Anglemyer, 868 

N.E.2d at 490-91. “Under those circumstances, remand for resentencing may 

be the appropriate remedy if we cannot say with confidence that the trial court 

would have imposed the same sentence had it properly considered reasons that 

enjoy support in the record.” Id. at 491. When a trial court improperly applies 

an aggravator but other valid aggravating circumstances exist, a sentence may 

still be upheld. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), 

trans. denied (2017). 

[12] Moyer asserts that the trial court relied on an aggravator that is improper as a 

matter of law. He bases this argument on the trial court’s statement that it 
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considered as an aggravator the probation department’s determination that he 

was “at a high risk to reoffend.” Tr. Vol. 2 at 64. See also Appellant’s App. Vol. 

2 at 129 (probation department’s risk assessment showing him to be in “HIGH 

risk category to reoffend.”). Our supreme court has held that “offender 

recidivism risk assessment instruments do not function as aggravating or 

mitigating circumstances for the purpose of determining the length of sentence 

appropriate for each defendant.” J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010). 

Nevertheless, the J.S. court explained that risk assessment scores are 

“appropriate supplemental consideration in judicial sentencing proceedings.” 

Id. (citing Malenchik v. State, 928 N.E.2d 564, 573 (Ind. 2010)).

[13] Based on our review of the record, we believe that the trial court’s comments 

about Moyer’s risk assessment scores were supplemental to the factors 

articulated in its written sentencing orders. In those orders, the trial court 

identified as aggravating factors Moyer’s criminal history, the repeat nature of 

his offenses, his history of probation violations and revocations, his violation of 

pretrial release, the seriousness of his offenses, and his attempts to minimize his 

role in the SVF count. Appellant’s App. Vol. 2 at 97, 104. The court identified 

as mitigating factors his guilty plea (though diminished by his receipt of benefits 

under the plea agreement), his expressions of remorse, his good employment 

history, and his substance abuse issues (though diminished by his failure to take 

advantage of treatment opportunities). Id. at 98, 104. If the trial court had 

intended to identify Moyer’s risk assessment score as an aggravator, it would 

have listed it as such in the written orders. We believe that, read in context, the 
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court’s oral comments were merely supplemental to the aggravating factors of 

Moyer’s extensive criminal history and numerous probation failures. Even if 

the trial court improperly considered the risk assessment, we are confident, 

based on the quantity and gravity of the other aggravating factors, that the trial 

court would have imposed the same sentence without it. 

[14] Finally, to the extent that Moyer appears to argue that the trial court placed too 

much emphasis on factors such as his criminal record and too little emphasis on 

his guilty plea, employment history, and family circumstances, we remind him 

that such considerations are unavailable for appellate review. See Anglemyer, 

868 N.E.2d at 491 (“The relative weight or value assignable to reasons properly 

found or those which should have been found is not subject to review for abuse 

[of discretion].”). Moyer has failed to establish an abuse of discretion.

Section 3 – Moyer has failed to meet his burden of establishing 

that his sentence is inappropriate in light of the nature of the 

offenses and his character.

[15] Moyer also asks that we review and revise his sentence pursuant to Appellate 

Rule 7(B), which states that we “may revise a sentence authorized by statute if, 

after due consideration of the trial court’s decision, [this] Court finds that the 

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

of the offender.” When a defendant requests appellate review and revision of 

his sentence, we have the power to affirm or reduce the sentence. Akard v. State, 

937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we may consider 

all aspects of the penal consequences imposed by the trial court in sentencing, 
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i.e., whether it consists of executed time, probation, suspension, home 

detention, or placement in community corrections, and whether the sentences 

run concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 

(Ind. 2010). We do not look to see whether the defendant’s sentence is 

appropriate or if another sentence might be more appropriate; rather, the test is 

whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 

(Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court 

that his sentence meets the inappropriateness standard. Anglemyer, 868 N.E.2d 

at 490.

[16] In considering the nature of Moyer’s offenses, “the advisory sentence is the 

starting point the Legislature has selected as an appropriate sentence.” Id. at 

494. When determining the appropriateness of a sentence that deviates from an 

advisory sentence, we consider whether there is anything more or less egregious 

about the offense as committed by the defendant that “makes it different from 

the typical offense accounted for by the legislature when it set the advisory 

sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). 

[17] To the extent that Moyer confines his appropriateness challenge to the eighteenyear portion of his sentence attributable to Cause 7, we reiterate that he cannot 

confine our review to a portion of his aggregate sentence. See Webb, 941 N.E.2d 

at 1087-88. Moyer’s aggregate twenty-year sentence comprises concurrent oneand two-year terms for his two level 6 felony convictions; a ten-year term for his

level 4 felony SVF conviction, with an additional eight years for the habitual 

offender finding, with fourteen of the eighteen years executed, two years in 
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community corrections, and two years suspended; and with the eighteen years 

to run consecutive to the two-year term for the level 6 felonies. A level 6 felony 

carries a sentencing range of six months to two and one-half years, with an 

advisory term of one year. Ind. Code § 35-50-2-7(b). The sentencing range for 

a level 4 felony is two to twelve years, with an advisory term of six years. Ind. 

Code § 35-50-2-5.5. For a person convicted of murder or a level 1 through level 

4 felony and found to be a habitual offender, the trial court shall impose an 

additional fixed, nonsuspendible term between six and twenty years. Ind. Code 

§ 35-50-2-8(i)(1).

[18] The circumstances surrounding Moyer’s neglect and OWI offenses are 

troubling. First, he was under the influence of amphetamines and marijuana

while babysitting his two-year-old son and Girlfriend’s nine-year-old daughter. 

He drove the children on an excursion for ice cream, weaving and eventually 

crashing his vehicle. After that, he did not attend to the children, but instead 

exited the vehicle, fell down in the street, and was later found unconscious in 

the woods nearby. He essentially left the children to fend for themselves, and 

they had to knock on the doors of strangers for help. 

[19] With respect to Moyer’s level 4 felony SVF and habitual offender counts, we 

note that although his sentence exceeds the level 4 felony advisory term by four

years, his habitual offender enhancement, only two years above the mandatory 

minimum fixed additional term, suggests leniency. Moyer correctly asserts that 

his SVF offense was not particularly egregious in scope or duration. He 

unlawfully possessed a shotgun that he was using to hunt deer, not to commit a 
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violent crime. However, our analysis cannot end there. Moyer acquired the 

shotgun through deceptive means, enlisting a straw purchaser whom he 

induced to make false statements on the firearm purchase form, thereby 

subjecting her to prosecution. Moreover, his argument concerning the short 

duration of his unlawful possession, ten days, is not particularly persuasive, as it 

was the DNR officers’ seizure of the shotgun that precipitated his loss of 

possession of it. His conduct in hiding the shotgun beneath leaves and branches 

and lying to DNR officers that the shotgun was not his demonstrates his intent 

to conceal the shotgun and maintain unlawful possession of it. These 

circumstances speak not only to the nature of Moyer’s offenses but also to his 

character.

[20] We conduct our review of a defendant’s character by engaging in a broad 

consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 

2014), clarified on other grounds on reh’g, 11 N.E.3d 571. Moyer admits that his 

criminal record reflects poorly on his character but asks that we consider that 

his ten felony and eight misdemeanor convictions are, by and large, “low-level” 

offenses and mostly related to his substance abuse issues. Appellant’s Br. at 15. 

However, his criminal history, beginning at age fifteen, includes not only a 

plethora of drug charges and convictions, but also convictions for OWI, 

resisting law enforcement, property offenses, and battery resulting in bodily 

injury. In reviewing his record, we find that the only significant timeframes in 

which he was not facing criminal charges are those when he was incarcerated. 

In other words, Moyer is a career criminal. He has had ten probation 
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revocations filed against him, four of which resulted in revocation and several 

others that were disposed of by plea agreements. In short, prior attempts at 

leniency simply have not worked.

[21] Moyer characterizes himself as a good father with a strong employment record, 

who should be granted leniency due to the hardship of his incarceration on his 

family. Although we appreciate his desire to work and provide for his family, 

we note that any incarceration is likely to produce some hardship for the family. 

When it comes to Moyer’s claims of good parenting, his conduct while

babysitting his toddler son and Girlfriend’s nine-year-old child simply cannot be 

ignored. He compounded one poor decision, taking amphetamines and 

marijuana, with other poor decisions such as driving the children while under 

the influence of those drugs and, after crashing his vehicle, leaving the children 

in a precarious situation in which the nine-year-old had to assume the role of 

caretaker for the two-year-old. We also note, as did the trial court, that Moyer

has not availed himself of opportunities for substance abuse treatment, which 

could have helped him become a more responsible father. Moyer’s

employment history is not as solid as he portrays it to be. Although he has

experienced brief stints of success in a few jobs, he has failed to maintain longterm success in the workplace, due largely to his substance abuse and criminal 

activity resulting in incarceration. In sum, Moyer has failed to meet his burden 

of establishing that his twenty-year aggregate sentence is inappropriate in light 

of the nature of his offenses and his character. Therefore, we affirm it. 
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Section 4 – The trial court miscalculated Moyer’s credit time 

in Cause 225.

[22] Finally, Moyer asserts, and the State concedes, that he is entitled to two 

additional days of jail time credit in Cause 225. Presentence jail time credit is a 

matter of statutory right, not subject to judicial discretion. Hall v. State, 944 

N.E.2d 538, 542 (Ind. Ct. App. 2011), trans. denied. Here, the parties relied on 

the “actual jail days” as 188 days, per the presentence investigation report 

(“PSI”). Appellant’s App. Vol. 2 at 117. However, this calculation 

presupposed a sentencing date of February 8, 2017, when in fact, after the PSI 

was prepared, Moyer’s sentencing hearing was rescheduled and held on 

February 10, 2017. This means that Moyer was confined for two additional 

days for which he did not receive credit. As such, we remand with instructions 

to adjust Moyer’s jail time credit accordingly. 

[23] Affirmed and remanded.

Vaidik, C.J., and Mathias, J., concur.