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Moyer v. State

Court of Appeals of Indiana

September 11, 2017

Shannon D. Moyer, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

         Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause Nos. 79D02-1603-F4-7 79D02-1603-F6-225

          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

          Crone, Judge.

         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.

         [¶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 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 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 ...

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