Morrell v. State

• Decision Date: 17 January 2019
• Docket Number: Court of Appeals Case No. 18A-CR-1282
• Parties: Shawn P. MORRELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

118 N.E.3d 793

Shawn P. MORRELL, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-1282

Court of Appeals of Indiana.

FILED January 17, 2019

Statement of the Case

[1] Shawn P. Morrell appeals from the sentence imposed by the trial court after his conviction of one count of domestic battery,¹ a Level 5 felony, contending that the trial court abused its discretion in imposing a sentence of five years for the offense. We affirm.

Issues

[2] Morrell claims that the trial court abused its discretion during sentencing by considering improper factors. More specifically, Morrell raises the following claims:

I. Did the trial court abuse its discretion by improperly citing Morrell's individual risk assessment score as an aggravating factor?

II. Did the trial court abuse its discretion by improperly considering Morrell's juvenile history during sentencing?

Facts and Procedural History

[3] The facts supporting the trial court's judgment of conviction after a bench trial follow. Morrell and his girlfriend A.W. were involved in an intimate, romantic relationship and lived together at A.W.'s house. On the evening of October 29, 2017, A.W. was at her daughter's apartment babysitting her grandchildren while her daughter worked. After the grandchildren were asleep, sometime after dark on that date or in the early morning hours of October 30, 2017, Morrell joined A.W. at the apartment. According to A.W., Morrell exhibited signs of paranoia by looking out of the windows, checking in closets, and inquiring if A.W. had hidden police officers in the apartment. Morrell subsequently admitted that he was under the influence of drugs. Tr. p. 47.

[4] Eventually, A.W. fell asleep. When she awoke, Morrell was not beside her where she had expected to find him. When she reached for her cell phone prior to attempting to locate him in the apartment, she noticed that her phone was not in its case. She looked for Morrell and discovered that a light was on in the bathroom. Morrell emerged from the bathroom holding A.W.'s cell phone. A.W. went to another room where she found Morrell's cell phone. Although she was unable to enter a correct pass code to unlock his phone, she pretended to be accessing information on the phone.

[5] After Morrell returned her phone to her, A.W. noticed that he had deleted the contact information she had for his other girlfriend, a person with whom she communicated. After A.W. returned his phone to him, Morrell believed that A.W. had done something to cause his phone to malfunction. The two argued about meddling with each other's phones. At one point during the argument, Morrell grabbed A.W. by the shoulders and head butted her. A.W.'s eye immediately began to hurt, and a lump formed on her forehead.

[6] A.W. stayed at her daughter's apartment until her daughter returned home from work. When A.W. got in her car to leave, Morrell was sitting in the passenger seat. The two waited at A.W.'s house until the urgent care facility opened before going there. A nurse at the urgent care facility called for assistance from law enforcement officers upon hearing A.W. report that Morrell, who was also there at the facility, had caused her injury. Morrell noticed that staff were frequently glancing at him as he smoked a cigarette outside and left before law enforcement officers arrived. A responding law enforcement officer spoke with A.W. about her injury and observed bruising and swelling above A.W.'s left eye. Those injuries were documented by officers.

[7] On November 16, 2017, the State charged Morrell with one count of domestic battery as a Level 5 felony, and one count of domestic battery as a Class A misdemeanor. Later, the State added a charge of invasion of privacy as a Class A misdemeanor for alleged contact between Morrell and A.W. after the entry of an order for no contact.

[8] At the conclusion of a bench trial held on April 10, 2018, the trial court found Morrell not guilty of invasion of privacy. The court found Morrell guilty of domestic battery as a Level 5 felony² and merged the conviction for domestic battery as a misdemeanor offense with the felony conviction. The trial court imposed its sentence and Morrell now appeals, challenging factors considered by the trial court during sentencing.

Discussion and Decision

[9] The sentencing range for a Level 5 felony is a fixed term of between one and six years with the advisory sentence being three years. Ind. Code § 35-50-2-6(b) (2014). The trial court imposed a sentence of five years, with three and a half years executed at the Indiana Department of Correction, one year at community corrections, and six months on supervised probation.

[10] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. McElfresh v. State , 51 N.E.3d 103, 107 (Ind. 2016). One way in which a trial court may abuse its discretion is by omitting from its sentencing statement "reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law." Anglemyer v. State , 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g on other grounds , 875 N.E.2d 218 (2007). Nonetheless, "a trial court can not ... be said to have abused its discretion in failing to ‘properly weigh’ " aggravators or mitigators. Id. Additionally, if a sentencing court improperly applies an aggravating circumstance but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. Means v. State , 807 N.E.2d 776, 788 (Ind. Ct. App. 2004), trans. denied. When we can "identify sufficient aggravating circumstances to persuade us that the trial court would have entered the same sentence even without the impermissible factor, it should affirm the trial court's decision." Id. (quoting Day v. State , 560 N.E.2d 641, 642 (Ind. 1990) ).

[11] During the sentencing hearing, the trial court stated the following reasoning when imposing Morrell's sentence:

Conviction having been entered against Shawn Patrick Morrell on Count 1, [d]omestic battery, a [L]evel 5 felony[,] the court now finds that an aggravating circumstance is the defendant's criminal history. The court notes three juvenile adjudications, two other juvenile contacts, three felony convictions, two misdemeanor convictions. Seven cases which have unknown disposition[s]. At least one failure to appear and two pending petitions to revoke probation. Second aggravating circumstance is that the defendant's IR[A]S his individual risk assessment score is high, likely to re-offend. Third aggravating circumstance is his history of illegal alcohol and drug use. A mitigating circumstance is that the defendant does have mental health issues. Another mitigating circumstance although it is not a great weight is that the defendant has one dependent child. A third mitigating circumstance is that the defendant has worked to better himself by obtaining his GED while he is in custody. The court finds that the aggravating circumstances outweigh the mitigating circumstances.

Tr. p. 88.

I. Individual Risk Assessment Score

[12] Morrell argues that we must remand the matter of sentencing due to the trial court's erroneous consideration of this aggravating circumstance. We decline to remand the matter on these grounds for reasons we more fully explain below but agree that the trial court abused its discretion when designating Morrell's IRAS as an aggravating circumstance.

[13] In a pair of decisions issued on the same day, our Supreme Court clarified how individual risk assessment scores should be treated for purposes of sentencing. See Malenchik v. State , 928 N.E.2d 564 (Ind. 2010) and J.S. v. State , 928 N.E.2d 576 (Ind. 2010).

[14] In Malenchik , 928 N.E.2d at 573, 575, the Supreme Court stated the following:

It is clear that neither the LSI-R nor the SASSI are intended nor recommended to substitute for the judicial function of determining the length of sentence appropriate for each offender. But such evidence-based assessment instruments can be significant sources of valuable information for judicial consideration in deciding whether to suspend all or part of a sentence, how to design a probation program for the offender, whether to assign an offender to alternative treatment facilities or programs, and other such corollary sentencing matters. The scores do not in themselves constitute an aggravating or mitigating circumstance because neither the data selection and evaluations upon which a probation officer or other administrator's assessment is made nor the resulting scores are necessarily congruent with a sentencing judge's findings and conclusion regarding relevant sentencing factors. Having been determined to be statistically valid, reliable, and effective in forecasting recidivism, the assessment tool scores may, and if possible should, be considered to supplement and enhance a judge's evaluation, weighing, and application of the other sentencing evidence in the formulation of an individualized sentencing program appropriate for each defendant.

* * * *

We hold that the results of LSI-R and SASSI offender assessment instruments are appropriate supplemental tools for judicial consideration at sentencing. These evaluations and their scores are not intended to serve as aggravating or mitigating circumstances nor to determine the gross length of sentence, but a trial court may employ such results in formulating the manner in which a sentence is to be served.

(emphasis added).

[15] The Supreme Court's holding about how to use these assessment tools was further refined in a footnote in J.S. Although the appellant in J.S. was facing neither of these sentencing options, the Supreme Court announced the following:

Sentencing proceedings for determining whether to impose a sentence of death or life imprisonment without parole call for a departure from this rule. In cases involving whether to impose a sentence of death or life

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