Craig Allen Modesitt, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2023)

MEMORANDUM DECISION

Bradford, Judge.

Case Summary

[1] In August of 2021, Craig Modesitt admitted to firing an illegally-possessed handgun and smoking marijuana in a wooded area in Tippecanoe County. The State, inter alia, charged Modesitt with Level 4 felony unlawful possession of a firearm by a serious violent felon (“SVF”), Class A misdemeanor marijuana possession, and Class C misdemeanor possession of paraphernalia and alleged that he was a habitual offender. After Modesitt pled guilty to and was convicted of the above charges, the trial court sentenced him to an aggregate term of ten years of incarceration, enhanced ten years by virtue of his habitual-offender status. Modesitt contends that his aggregate, twenty-year sentence is inappropriately harsh. We affirm.

Facts and Procedural History

[2] On August 28, 2021, police officers responded to a report of shots fired near the area of Stair Road and County Road 500 East in Tippecanoe County. When the officers arrived, they encountered Modesitt, who had an illegally-possessed handgun and a pipe containing marijuana residue. Modesitt admitted to having smoked marijuana and having fired the handgun in the woods.

[3] On September 28, 2021, the State charged Modesitt with Level 4 felony unlawful possession of a firearm by an SVF, Level 5 felony possession of a handgun without a license, Class A misdemeanor marijuana possession, Class A misdemeanor possession of a handgun without a license, Class B misdemeanor marijuana possession, and Class C misdemeanor possession of paraphernalia. The same day, the State also alleged that Modesitt was a habitual offender.

[4] On September 26, 2021, Modesitt pled guilty as charged and admitted to being a habitual offender. On March 6, 2023, a sentencing hearing was held. The trial court found, as mitigating circumstances, that Modesitt had pled guilty, thereby accepting responsibility, and had significant health issues. The trial court found, as aggravating circumstances, Modesitt's criminal history and that prior attempts at rehabilitation had failed. The trial court found that the aggravating circumstances outweighed the mitigating and sentenced Modesitt to ten years of incarceration in the Department of Correction (“DOC”) for unlawful possession of a firearm by an SVF, enhanced ten years by virtue of his habitual-offender status.¹

Discussion and Decision

[5] Sentencing is a discretionary function of the trial court and is given considerable deference on review. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence “after due consideration of the trial court's decision” if it finds the sentence is inappropriate in light of the nature of the offense and the defendant's character. Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). When reviewing a sentence under Rule 7(B), we do not look to see whether another sentence “is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Id. (citation omitted). A defendant carries the burden of convincing us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[6] The nature of the offense “compares the defendant's actions with the required showing to sustain a conviction under the charged offense[.]” Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (citing Cardwell, 895 N.E.2d at 1224), trans. denied. The character of the offender is based on a broader consideration of the defendant's character. Id. A Level 4 felony carries a sentencing range of two to twelve years with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. Modesitt received a sentence of ten years for his Level 4 felony conviction, enhanced by ten years for his habitual-offender status, for an aggregate term of twenty years of incarceration.

[7] As for the nature of the offenses, Modesitt was not merely in possession of a handgun when not legally able to be, he admitted to firing it. Mere possession of a handgun by an SVF is not a mild crime. See Teer v. State, 738 N.E.2d 283, 290 (Ind. Ct. App. 2000) (noting that the General Assembly has prohibited SVFs from possessing firearms “presumably, to make it harder for them to continue committing other violent crimes”), trans. denied. Firing the handgun elevates the seriousness of Modesitt's offense because discharging a firearm at any time carries some risk of death, injury, or property damage. Additionally, Modesitt admitted to having smoked marijuana, so he had been firing a handgun while under the influence of drugs.

[8] As to Modesitt's character, it is revealed by his criminal record, which has great relevance when considering character. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015) (citing Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013)), trans. denied. “Even a minor criminal history reflects poorly on a defendant's character.” Smoots v. State, 172 N.E.3d 1279, 1290 (Ind. Ct. App. 2021). Modesitt's criminal career, however, is anything but minor and began in 1974 when he was twelve years old:

[Modisett] was arrested as a juvenile for the offenses of Theft (1974, 1976, and 1979), Burglary (1975, 1977, 1978 x4, and 1979), Runaway (1976 x2), Malicious Trespass (1977), Carrying Concealed Weapon (1978), Battery (1978), Inflicting Injury to Police Officer (1978), Resisting Law Enforcement (1978), Criminal Recklessness (1978), Public Intoxication (1978), Possession of Marijuana (1978), and Forgery (1979). He was ordered committed to the Indiana Department of Correction Boys School on 11/06/78.

He has prior misdemeanor convictions for Operating a Vehicle While Intoxicated (1991), and Possession of Marijuana (1991 and 2010).

He has prior felony convictions for Theft (~1980 x2, ~1983, ~1984 x2, and 1993), Burglary (~1983 and 1993), Possession of a Controlled Substance (~1986), Possession of Cocaine (~1986), Receiving Stolen Property (1991), and Possession of Marijuana (2017). He was convicted of an unspecified felony in ~1983.

Appellant's App. Vol. II p. 70. All told, Modesitt was arrested at least twenty-one times as a juvenile, he has had adult convictions for thirteen felonies and three misdemeanors, and this case represents the second time he has been found to be a habitual offender.

[9] Modesitt claims that his prior convictions should not be given significant weight because the majority are remote in time and most occurred in the 1980's and 1990's. It is worth noting, however, that Modesitt was sentenced in 1993 to thirty-five years of incarceration, released to community corrections in 2007, and not fully released from this sentence until March of 2010. Modesitt was therefore incarcerated during an extended period of time when he was not being arrested and charged with new crimes. Modesitt also contends that an executed sentence is inconsistent with the fact that he successfully completed that sentence in community corrections in 2010. Shortly thereafter, however, in July of 2010, Modesitt was arrested and charged with a new crime. It seems that Modesitt's lengthy term in the DOC failed to rehabilitate him, and he has again shown that he cannot function in society as a law-abiding citizen. This supports the trial court's finding that prior attempts at rehabilitation failed.

[10] In support of his argument for a reduced sentence, Modesitt points to his guilty plea and medical condition. The trial court recognized these two circumstances as mitigating but found that the aggravating circumstances outweighed the mitigating. To the extent Modesitt claims that the trial court did not properly weigh the aggravating and mitigating circumstances, this contention is not available because the weight given to a particular aggravating or mitigating circumstance is not subject to appellate review. Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)), trans. denied.

[11] Modesitt also contends that his habitual-offender enhancement should have been six years instead of ten. The determination of an appropriate habitual-offender enhancement that is within the statutory range is left to the trial court's discretion. Montgomery v. State, 878 N.E.2d 262, 268 (Ind. Ct. App. 2007). Being a habitual offender when the underlying crime is a Level 4 felony carries a punishment from an additional six years to a maximum of twenty years, so ten years is nearer to the bottom of the statutory range than to the top. Ind. Code § 35-50-2-8(i). Considering Modesitt's extensive criminal history and that this is the second time he has been found to be a habitual offender, the trial court did not abuse its discretion by imposing a ten-year enhancement.

[12] Finally, Modesitt requests that we not only reduce his sentence but also provide him with a different placement. It is “quite difficult” for a defendant to succeed on a claim that his placement is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). A “defendant challenging the placement of a sentence must convince us that the given placement is itself inappropriate.” Id. at 344. Given his long-standing inability to abide by the norms of society, Modesitt has not convinced us that his placement in the DOC was inappropriate. Modesitt has failed to establish that his sentence (or placement) is inappropriate in light of the nature of his offenses and his character.

[13] We affirm the judgment of the trial court.

Riley, J., and Weissmann, J., concur.

FOOTNOTES

1.   The trial court imposed concurrent sentences of 365 days for Class A misdemeanor marijuana possession and sixty days for Class C misdemeanor illegal possession of paraphernalia. The trial court also vacated Modesitt's convictions for Level 5 felony possession of a handgun without a license, Class A misdemeanor possession of a handgun without a license, and Class B misdemeanor marijuana possession, apparently due to double-jeopardy concerns.

Memorandum Decision by Judge Bradford

Judges Riley and Weissmann concur.