MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 22 2019, 8:09 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Sturgeon Curtis T. Hill, Jr. Jeffersonville, Indiana Attorney General of Indiana
Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher D. McCoy, April 22, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2809 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Andrew Adams, Appellee-Plaintiff Judge Trial Court Cause No. 10C01-1505-FA-5
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 1 of 7 [1] Christopher D. McCoy pled guilty, pursuant to a plea agreement, to two counts
of child molesting, one as a Class C felony (Count II) and one as a Level 4
felony (Count IV). This is McCoy’s third appeal of his sentence, as the last two
appeals resulted in remands for resentencing. See McCoy v. State, 96 N.E.3d 95
(Ind. Ct. App. 2018) (McCoy I) and McCoy v. State, No. 18A-CR-1022 (Ind. Ct.
App. Sept. 19, 2018) (McCoy II). Following the most recent remand, the trial
court ordered consecutive, executed sentences of eight years on Count II and
twelve years on Count IV, with four of those years served on community
corrections. In this appeal, McCoy argues that his twenty-year sentence is
inappropriate.
[2] We affirm.
Facts & Procedural History
[3] McCoy II set out the following facts:
Toward the end of 2013, McCoy began molesting S.M., his ten- year-old adopted daughter. He fondled S.M.’s vagina and made her “clean” his penis in the shower by masturbating it until he ejaculated. At least twice McCoy partially penetrated S.M.’s vagina, once with his penis and another time with an item described as “blue rubber with several connected circles.” He also touched the exterior of her vagina with a vibrator. These and other acts continued through January of 2015.
The State charged McCoy … with four counts of child molesting, two committed before July 1, 2014 and two committed after June 30, 2014: Count I, a Class A felony; Count II, a Class C felony; Count III, a Level 1 felony; and Count IV, a Level 4 felony. In
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 2 of 7 January of 2017, McCoy entered into an open plea agreement in which he agreed to plead guilty to Count II … and Count IV …, and, in exchange, the State agreed to dismiss Counts I and III.
The trial court imposed an eight-year sentence on [Count II] and a twelve-year sentence on [Count IV] with four years to be served on Community Corrections. On direct review, we found that the trial court erroneously classified McCoy as a credit restricted felon and relied on two invalid aggravating factors. We also found that the sentencing order did not clearly state whether McCoy was to serve the sentences concurrently or consecutively and what, if any, mitigating factors were found by the trial court. We remanded for resentencing.
When resentencing McCoy, the trial court correctly observed that the sentencing range for a Class C felony is between two and eight years and that the sentencing range for a Level 4 felony is between two and twelve years. However, moments later, the trial court appeared to transpose those ranges when it imposed a twelve-year sentence on the Class C felony and an eight-year sentence on the Level 4 felony.
McCoy II, slip op. at 2-4 (citations omitted). This apparent transposition of
sentences resulted in an illegal sentence for Count II, the Class C felony.
Accordingly, in McCoy II, we reversed and remanded for resentencing and
expressly noted, “the trial court may simply revert to its original sentence as to
the length of each individual sentence or impose other sentences on each count
so long as those sentences lie within statutory parameters.” Id. at 5.
[4] On November 19, 2018, the trial court held a hearing and resentenced McCoy
to eight years on Count II and twelve years on Count IV to be served
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 3 of 7 consecutively, with the last four years served on community corrections.
McCoy now appeals from his twenty-year aggregate sentence, claiming that the
sentence is inappropriate.
Discussion & Decision
[5] Pursuant to Ind. Appellate Rule 7(B), we “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.” Our Supreme Court has explained that our principal
role should be to attempt to leaven the outliers, “not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “‘[W]e must and should exercise deference to a trial court’s sentencing
decision, both because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions.’” Rogers v. State, 878 N.E.2d 269,
275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)), trans. denied. “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).
[6] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 4 of 7 damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). “The question under
App. R. 7(B) is ‘not whether another sentence is more appropriate’ but rather
‘whether the sentence imposed is inappropriate.’” Miller v. State, 105 N.E.3d
194, 196 (Ind. Ct. App. 2018) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.
Ct. App. 2008)). McCoy bears the burden of persuading us that his sentence is
inappropriate. See id.
[7] Here, the trial court imposed maximum sentences and ordered them to be
served consecutively for an aggregate sentence of twenty years, with four years
served on community corrections. See Ind. Code § 35-50-2-5.5 (sentencing
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 22 2019, 8:09 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Sturgeon Curtis T. Hill, Jr. Jeffersonville, Indiana Attorney General of Indiana
Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher D. McCoy, April 22, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2809 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Andrew Adams, Appellee-Plaintiff Judge Trial Court Cause No. 10C01-1505-FA-5
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 1 of 7 [1] Christopher D. McCoy pled guilty, pursuant to a plea agreement, to two counts
of child molesting, one as a Class C felony (Count II) and one as a Level 4
felony (Count IV). This is McCoy’s third appeal of his sentence, as the last two
appeals resulted in remands for resentencing. See McCoy v. State, 96 N.E.3d 95
(Ind. Ct. App. 2018) (McCoy I) and McCoy v. State, No. 18A-CR-1022 (Ind. Ct.
App. Sept. 19, 2018) (McCoy II). Following the most recent remand, the trial
court ordered consecutive, executed sentences of eight years on Count II and
twelve years on Count IV, with four of those years served on community
corrections. In this appeal, McCoy argues that his twenty-year sentence is
inappropriate.
[2] We affirm.
Facts & Procedural History
[3] McCoy II set out the following facts:
Toward the end of 2013, McCoy began molesting S.M., his ten- year-old adopted daughter. He fondled S.M.’s vagina and made her “clean” his penis in the shower by masturbating it until he ejaculated. At least twice McCoy partially penetrated S.M.’s vagina, once with his penis and another time with an item described as “blue rubber with several connected circles.” He also touched the exterior of her vagina with a vibrator. These and other acts continued through January of 2015.
The State charged McCoy … with four counts of child molesting, two committed before July 1, 2014 and two committed after June 30, 2014: Count I, a Class A felony; Count II, a Class C felony; Count III, a Level 1 felony; and Count IV, a Level 4 felony. In
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 2 of 7 January of 2017, McCoy entered into an open plea agreement in which he agreed to plead guilty to Count II … and Count IV …, and, in exchange, the State agreed to dismiss Counts I and III.
The trial court imposed an eight-year sentence on [Count II] and a twelve-year sentence on [Count IV] with four years to be served on Community Corrections. On direct review, we found that the trial court erroneously classified McCoy as a credit restricted felon and relied on two invalid aggravating factors. We also found that the sentencing order did not clearly state whether McCoy was to serve the sentences concurrently or consecutively and what, if any, mitigating factors were found by the trial court. We remanded for resentencing.
When resentencing McCoy, the trial court correctly observed that the sentencing range for a Class C felony is between two and eight years and that the sentencing range for a Level 4 felony is between two and twelve years. However, moments later, the trial court appeared to transpose those ranges when it imposed a twelve-year sentence on the Class C felony and an eight-year sentence on the Level 4 felony.
McCoy II, slip op. at 2-4 (citations omitted). This apparent transposition of
sentences resulted in an illegal sentence for Count II, the Class C felony.
Accordingly, in McCoy II, we reversed and remanded for resentencing and
expressly noted, “the trial court may simply revert to its original sentence as to
the length of each individual sentence or impose other sentences on each count
so long as those sentences lie within statutory parameters.” Id. at 5.
[4] On November 19, 2018, the trial court held a hearing and resentenced McCoy
to eight years on Count II and twelve years on Count IV to be served
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 3 of 7 consecutively, with the last four years served on community corrections.
McCoy now appeals from his twenty-year aggregate sentence, claiming that the
sentence is inappropriate.
Discussion & Decision
[5] Pursuant to Ind. Appellate Rule 7(B), we “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.” Our Supreme Court has explained that our principal
role should be to attempt to leaven the outliers, “not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “‘[W]e must and should exercise deference to a trial court’s sentencing
decision, both because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
trial court brings to its sentencing decisions.’” Rogers v. State, 878 N.E.2d 269,
275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)), trans. denied. “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).
[6] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 4 of 7 damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). “The question under
App. R. 7(B) is ‘not whether another sentence is more appropriate’ but rather
‘whether the sentence imposed is inappropriate.’” Miller v. State, 105 N.E.3d
194, 196 (Ind. Ct. App. 2018) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.
Ct. App. 2008)). McCoy bears the burden of persuading us that his sentence is
inappropriate. See id.
[7] Here, the trial court imposed maximum sentences and ordered them to be
served consecutively for an aggregate sentence of twenty years, with four years
served on community corrections. See Ind. Code § 35-50-2-5.5 (sentencing
range for a Level 4 felony is two to twelve years, with an advisory sentence of
six years); I.C. § 35-5-2-6(a) (sentencing range for a Class C felony is two to
eight years, with an advisory sentence of four years). McCoy argues that this
sentence is inappropriate in light of the nature of the offenses and his character.
[8] With respect to the nature of his offenses, McCoy asserts that he was convicted
of “inappropriately touching or fondling” his daughter, which “is not the
worst” of child molest offenses. Appellant’s Brief at 8. The record, however,
establishes that McCoy’s abuse of his daughter progressed well beyond
touching and fondling. 1 Beginning when S.M. was ten years old, McCoy began
1 By pleading guilty, McCoy avoided the risk of being convicted of his two most serious charges, Class A felony and Level 1 Felony child molesting. Although these two counts were dismissed as the result of the plea agreement, we may still consider the full nature and circumstances of McCoy’s crimes against his
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 5 of 7 molesting her and then continued doing so for over a year until S.M. reported
the abuse to her mother. In addition to fondling S.M.’s vagina, he would make
her masturbate him in the shower and shave his pubic hair. He also engaged in
oral sex with S.M. On at least two occasions, McCoy attempted to have sexual
intercourse with S.M., partially penetrating her vagina with his penis and
causing her pain. Other times, he used a vibrator on the outside of S.M.’s
vagina and penetrated her vagina with anal beads, stopping only when she said
it hurt. Many of these acts occurred while S.M.’s younger siblings were in the
home. The nature of McCoy’s ongoing molestation of his daughter was
particularly egregious and warranted a lengthy sentence.
[9] Turning to his character, McCoy generally asserts that he had no prior criminal
record, was found likely to respond well to probation and unlikely to reoffend,
was employed full-time prior to his incarceration, and pled guilty. We have
already held that McCoy’s guilty plea was not mitigating, as it came more than
eighteen months after he was charged and afforded him the enormous benefit of
the dismissal a Class A felony charge and Level 1 felony charge. McCoy I, 96
N.E.3d at 99. Moreover, McCoy’s lack of prior criminal record seems rather
inconsequential given the fact that he sexually molested his daughter repeatedly
over a lengthy period of time. We find this ongoing abuse and serious violation
daughter. See Bethea, 983 N.E.2d at 1145 (unless the plea agreement provides otherwise, “it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them”).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 6 of 7 of his position of trust much more telling of his character than his ability to hold
a job and refrain from other illegal activity.
[10] Given the nature of McCoy’s offenses and his character, an aggregate sentence
of twenty-years, with four of those years served on community corrections, is
not inappropriate. Thus, we affirm McCoy’s sentence.
[11] Judgment affirmed.
Kirsch, J. and Vaidik, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019 Page 7 of 7