MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 08 2015, 7:31 am
regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana
Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy McCool, December 8, 2015 Appellant-Defendant, Court of Appeals Case No. 15A05-1505-CR-331 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable Kimberly A. Appellee-Plaintiff Schmaltz, Magistrate Trial Court Cause No. 15C01-1411-F4-59
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 1 of 8 Case Summary [1] Jeremy McCool appeals his twelve-year sentence for level 4 felony unlawful
possession of a firearm by a serious violent felon (“SVF”). He asserts that the
trial court improperly considered his lack of remorse as an aggravating factor
and that his sentence is inappropriate in light of the nature of the offense and
his character. Finding that the trial court acted within its discretion in its
treatment of his lack of remorse and that he has failed to establish that his
sentence is inappropriate, we affirm.
Facts and Procedural History [2] In 2009, McCool was convicted of class B felony rape with force or imminent
threat of force. His sentence included executed time followed by probation.
After his September 2014 release, he met with his probation officer to discuss
the conditions of his probation, which included home visits as well as a
prohibition against his use or possession of firearms.
[3] In November 2014, his probation officer and two other officers visited
McCool’s home, which he shared with his wife Kathy (“Wife”), his mother-in-
law, and about ten other members of Wife’s family. When the officers entered
the house, they saw McCool and Wife walking toward their bedroom. Wife
was carrying a box containing shotgun ammunition and magazines for a rifle.
When McCool’s probation officer asked him whether there were firearms in the
house, Wife indicated that there was a firearm in the closet between the
couple’s bedroom and the kitchen. A search of the closet produced a .22 rifle
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 2 of 8 and a BB gun. During a search of the couple’s bedroom, the officers found a
shotgun and another rifle underneath the comforter on the bed. Prior to the
officers’ visit, the firearms had been in a glass-front gun cabinet inside McCool
and Wife’s bedroom, where they had been stored since McCool moved into the
house two months before.
[4] After the officers’ visit, Wife’s family members took the firearms to an uncle’s
house in Ohio. A few days later, police determined that McCool was an SVF
based on his previous rape conviction. As such, his possession of firearms
amounted not only to a probation violation but also to a new criminal offense:
unlawful possession of a firearm by an SVF. Police drove to Ohio and took
possession of the firearms from Wife’s uncle.
[5] The State charged McCool with level 4 felony unlawful possession of a firearm
by an SVF. A jury convicted him as charged. In sentencing him to the
maximum twelve-year term, the trial court found as aggravating factors his lack
of remorse and extensive criminal history.
[6] McCool appeals, challenging only his sentence. Additional facts will be
provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 3 of 8 Discussion and Decision
Section 1 – The trial court did not abuse its discretion in its treatment of McCool’s lack of remorse as an aggravating factor. [7] McCool maintains that the trial court improperly considered his lack of remorse
as an aggravating factor during sentencing. Sentencing decisions rest within the
sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218. As long as the sentence is within the
statutory range, it is subject to review only for an abuse of discretion. Id. An
abuse of discretion occurs if 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). One of the ways that a court might abuse its
discretion is by listing reasons for its sentence that are improper as a matter of
law. Anglemyer, 868 N.E.2d at 490-91.
[8] McCool submits that as a matter of law the trial court improperly designated
his lack of remorse as an aggravator. A trial court may consider as an
aggravator the defendant’s lack of remorse, exhibited “when he displays disdain
or recalcitrance, the equivalent of ‘I don’t care.’” Sloan, 16 N.E.3d at 1027
(quoting Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002)). However, a
court may not consider as an aggravator lack of remorse by a defendant
“consistently maintaining his innocence if the defendant does so in good faith.”
Id. Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 4 of 8 [9] McCool asserts that his steadfast claim of innocence throughout the
proceedings is antithetical to a show of remorse. However, recorded jailhouse
phone conversations admitted during trial contradict his assertion that he
maintained his innocence in good faith. In one such conversation with Wife
shortly after his arrest, McCool related to her a proposed narrative in which the
two would aver that he never touched the firearms or was even present in the
bedroom where the officers found the firearms. State’s Ex. 17. He twice
emphasized to Wife, “You/We gotta stick with that story …. You hear me?”
Id. When Wife recited the narrative back to McCool and protested, “They [the
firearms] were in there and you were in there,” he became agitated and
admonished her to state that she was the only one who possessed the firearms.
Id. In another recorded conversation, McCool lamented to Wife, “That’s my
fingerprints are on ‘em [the firearms].” State’s Ex. 18. Wife proposed that she
testify, “I grabbed ‘em out [of the gun cabinet] and handed ‘em to you … I
guess.” Id. When Wife began to exhibit frustration, McCool retorted, “Well,
it’s gonna go to court and we need to have our stories straight.” Id.
[10] These conversations, together with the fact that the officers found two of the
firearms hidden in the couple’s bed covers, indicate that McCool’s assertions of
innocence were not made in good faith. Thus, his lack of remorse could
properly be considered as an aggravator, and we find no abuse of discretion in
the trial court’s treatment of this factor.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 08 2015, 7:31 am
regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana
Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy McCool, December 8, 2015 Appellant-Defendant, Court of Appeals Case No. 15A05-1505-CR-331 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable Kimberly A. Appellee-Plaintiff Schmaltz, Magistrate Trial Court Cause No. 15C01-1411-F4-59
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 1 of 8 Case Summary [1] Jeremy McCool appeals his twelve-year sentence for level 4 felony unlawful
possession of a firearm by a serious violent felon (“SVF”). He asserts that the
trial court improperly considered his lack of remorse as an aggravating factor
and that his sentence is inappropriate in light of the nature of the offense and
his character. Finding that the trial court acted within its discretion in its
treatment of his lack of remorse and that he has failed to establish that his
sentence is inappropriate, we affirm.
Facts and Procedural History [2] In 2009, McCool was convicted of class B felony rape with force or imminent
threat of force. His sentence included executed time followed by probation.
After his September 2014 release, he met with his probation officer to discuss
the conditions of his probation, which included home visits as well as a
prohibition against his use or possession of firearms.
[3] In November 2014, his probation officer and two other officers visited
McCool’s home, which he shared with his wife Kathy (“Wife”), his mother-in-
law, and about ten other members of Wife’s family. When the officers entered
the house, they saw McCool and Wife walking toward their bedroom. Wife
was carrying a box containing shotgun ammunition and magazines for a rifle.
When McCool’s probation officer asked him whether there were firearms in the
house, Wife indicated that there was a firearm in the closet between the
couple’s bedroom and the kitchen. A search of the closet produced a .22 rifle
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 2 of 8 and a BB gun. During a search of the couple’s bedroom, the officers found a
shotgun and another rifle underneath the comforter on the bed. Prior to the
officers’ visit, the firearms had been in a glass-front gun cabinet inside McCool
and Wife’s bedroom, where they had been stored since McCool moved into the
house two months before.
[4] After the officers’ visit, Wife’s family members took the firearms to an uncle’s
house in Ohio. A few days later, police determined that McCool was an SVF
based on his previous rape conviction. As such, his possession of firearms
amounted not only to a probation violation but also to a new criminal offense:
unlawful possession of a firearm by an SVF. Police drove to Ohio and took
possession of the firearms from Wife’s uncle.
[5] The State charged McCool with level 4 felony unlawful possession of a firearm
by an SVF. A jury convicted him as charged. In sentencing him to the
maximum twelve-year term, the trial court found as aggravating factors his lack
of remorse and extensive criminal history.
[6] McCool appeals, challenging only his sentence. Additional facts will be
provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 3 of 8 Discussion and Decision
Section 1 – The trial court did not abuse its discretion in its treatment of McCool’s lack of remorse as an aggravating factor. [7] McCool maintains that the trial court improperly considered his lack of remorse
as an aggravating factor during sentencing. Sentencing decisions rest within the
sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218. As long as the sentence is within the
statutory range, it is subject to review only for an abuse of discretion. Id. An
abuse of discretion occurs if 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). One of the ways that a court might abuse its
discretion is by listing reasons for its sentence that are improper as a matter of
law. Anglemyer, 868 N.E.2d at 490-91.
[8] McCool submits that as a matter of law the trial court improperly designated
his lack of remorse as an aggravator. A trial court may consider as an
aggravator the defendant’s lack of remorse, exhibited “when he displays disdain
or recalcitrance, the equivalent of ‘I don’t care.’” Sloan, 16 N.E.3d at 1027
(quoting Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002)). However, a
court may not consider as an aggravator lack of remorse by a defendant
“consistently maintaining his innocence if the defendant does so in good faith.”
Id. Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 4 of 8 [9] McCool asserts that his steadfast claim of innocence throughout the
proceedings is antithetical to a show of remorse. However, recorded jailhouse
phone conversations admitted during trial contradict his assertion that he
maintained his innocence in good faith. In one such conversation with Wife
shortly after his arrest, McCool related to her a proposed narrative in which the
two would aver that he never touched the firearms or was even present in the
bedroom where the officers found the firearms. State’s Ex. 17. He twice
emphasized to Wife, “You/We gotta stick with that story …. You hear me?”
Id. When Wife recited the narrative back to McCool and protested, “They [the
firearms] were in there and you were in there,” he became agitated and
admonished her to state that she was the only one who possessed the firearms.
Id. In another recorded conversation, McCool lamented to Wife, “That’s my
fingerprints are on ‘em [the firearms].” State’s Ex. 18. Wife proposed that she
testify, “I grabbed ‘em out [of the gun cabinet] and handed ‘em to you … I
guess.” Id. When Wife began to exhibit frustration, McCool retorted, “Well,
it’s gonna go to court and we need to have our stories straight.” Id.
[10] These conversations, together with the fact that the officers found two of the
firearms hidden in the couple’s bed covers, indicate that McCool’s assertions of
innocence were not made in good faith. Thus, his lack of remorse could
properly be considered as an aggravator, and we find no abuse of discretion in
the trial court’s treatment of this factor.
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 5 of 8 Section 2 – McCool has failed to establish that his sentence is inappropriate in light of the nature of the offense and his character. [11] McCool asks that we reduce his sentence pursuant to Indiana 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 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.
[12] In considering the nature of a defendant’s offense, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Id. at
494. McCool was convicted of level 4 felony unlawful possession of a firearm
by an SVF, which carries a sentencing range of two to twelve years, with a six-
year advisory sentence. Ind. Code § 35-50-2-5.5. He characterizes his offense
as relatively innocuous and complains that it did not merit the maximum
sentence of twelve years. He emphasizes that the firearms belonged to his
deceased father-in-law and were present on the premises when he moved there.
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 6 of 8 In other words, he did not pursue the firearms; the firearms found him. In this
vein, we note the following: the offense for which McCool was convicted
requires evidence of possession, not ownership, of a firearm; McCool lived at the
residence with multiple firearms for nearly two months; the firearms were
stored in his bedroom; officers found the shotgun and one of the rifles hidden
underneath the comforter on his bed; he and Wife were in possession of a box
of ammunition when the officers entered the home for the probation check; and
his firearm possession was prohibited not only because of his SVF status but
also because it amounted to a probation violation. Simply put, the nature of
McCool’s offense supports a lengthy sentence.
[13] Even so, we note that McCool’s particular offense is based on his status as an
SVF. This means that an analysis of the nature of the offense cannot focus
solely on the circumstances surrounding the offender’s commission of it or the
motive behind his procurement of the firearm; rather, it necessitates a close look
at who is possessing the firearm. We therefore turn our analysis to McCool’s
character.
[14] McCool characterizes himself as a “simple man” who struggles from attention
deficit disorder and a lack of education, who did not proactively pursue the
firearms he possessed, and who “struggled to understand” the “nuances of
constructive possession law” and the criminal implications of the presence of
firearms in his home. Appellant’s Br. at 5, 9, 13. The recorded phone
conversations belie these assertions, clearly showing that McCool knew he was
breaking the law and attempted to concoct a false narrative. Moreover, this
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 7 of 8 “simple man” is a violent sex offender, having been convicted of class B felony
rape with force or imminent threat of force. His assertion that there was “no
threat to society due to the presence of guns in his home” is puzzling if not
audacious. Id. at 12.
[15] Finally, McCool’s lengthy criminal record reflects a pattern of convictions and
probation violations. His juvenile record includes adjudications for vandalism
and underage drinking. In addition to his felony rape conviction, his adult
history includes misdemeanor convictions for intimidation, harassment,
criminal recklessness, operating while intoxicated with endangerment, and
repeat public intoxication and driving while suspended convictions. He asks for
grace in sentencing, yet his five probation violations and four revocations (to
date) reveal his abject failure to respond to lenient treatment. In short, McCool
has failed to establish that his sentence is inappropriate in light of the nature of
the offense and his character. Accordingly, we affirm.
[16] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015 Page 8 of 8