MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 23 2015, 9:34 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 Mark Leeman Gregory F. Zoeller Leeman Law Offices Attorney General of Indiana Logansport, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jerremy Buren Cofield, December 23, 2015 Appellant-Defendant, Court of Appeals Case No. 09A02-1505-CR-432 v. Appeal from the Cass Circuit Court State of Indiana, The Honorable Leo T. Burns, Appellee-Plaintiff. Judge Trial Court Cause No. 09C01-1406-FC-27
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 1 of 8 [1] Jerremy Buren Cofield appeals his sentence for two counts of child molesting as
class C felonies. Cofield raises two issues which we revise and restate as
whether the trial court abused its discretion in ordering that he serve his
sentences for two counts of child molesting as class C felonies consecutive to
each other.1 We affirm.
Facts and Procedural History
[2] Between January 1, 2013 and December 31, 2013, Cofield touched L.H.’s penis
and W.R.’s penis. L.H. was born in October 2007, and W.R. was born in
December 2001. On June 25, 2014, the State charged Cofield with: Count I,
child molesting as a class C felony for fondling W.R.’s penis; and Count II,
child molesting as a class C felony for fondling L.H.’s penis. The State and
Cofield entered into a plea agreement pursuant to which Cofield agreed to
plead guilty to both counts as charged and the parties agreed as to sentencing:
“The Court will impose the following sentence: Cap of twelve years on total
sentence. Court to determine all terms including consecutivity.” Appellant’s
Appendix at 33. On March 19, 2015, the court held a guilty plea hearing at
which Cofield admitted to touching L.H.’s penis and W.R.’s penis and that he
did so to satisfy his sexual desires.
1 Cofield also argues that the record establishes that his plea agreement was based on an understanding that he would have a right to appeal his sentence. We need not address this argument as we address the merits of Cofield’s argument on appeal that the court abused its discretion in sentencing him.
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 2 of 8 [3] On April 16, 2015, the court held a sentencing hearing. The court heard
testimony from L.H.’s grandmother, who testified as to the impact Cofield’s
actions had on L.H., that his grades had dropped, that he is angry, paranoid,
and cries a lot, that he fears people will leave him, and that he had started with
counseling. The court also heard testimony from W.R.’s mother, who testified
as to the impact of Cofield’s actions on W.R., that W.R. was going through
therapy, that she and her husband considered Cofield a close friend, and that
they helped his mother when needed. The prosecutor argued that the court
should order that Cofield’s sentences be served consecutively and that the
aggravators outweighed the mitigators. After discussing aggravating and
mitigating factors, the trial court stated in part:
The other issue before the Court is whether this is a pattern of conduct close in time or whether these are separate events that subject themselves to sentencing consecutively. . . . The Court found that there was a factual adequate basis but . . . the frankness of your admission, uh, was not typically, what a Court expects when it’s looking for an admission to a crime. I found the factual basis but it was difficult. There was some hesitancy on your part to really, uh admit exactly when this occurred and how it occurred and that makes creates a situation for the Court, uh, which makes the determination of a consecutive sentence, two (2) separate and distinct acts as opposed to same day close in time, more difficult. Uh, I have resolved that issue as well with a recollection with what was said during the fact-finding hearing and I now determine that the event with, uh, and I am not sure which happened first, but the event probably with the eleven (11) year old happened first and with knowledge that you got away with that, uh, a second victim was targeted, uh, and the crime committed against the second victim, the younger child. Aggravating, uh, or consecutive sentences are, uh appropriate in
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 3 of 8 this case and an aggravated sentence is appropriate in this case. The aggravators that I refer to are, uh, have been stated, which could in some cases, justify the maximum sentence of eight (8) years, however because of the, uh, mitigating circumstances, the aggregators [sic] do outweigh those mitigating circumstances of pleading guilty and not having an minimal criminal record, but, uh, there was a reason for the plea agreement that caps the sentence at twelve (12) years, uh, six (6) years on each is an aggravated sentence and each specific case I find that the aggravating factors outweigh the mitigating factors, you shall serve six (6) years in the Indiana Department of Correction on count one (1) and six (6) years in the Indiana Department Of Correction on count two (2). Those sentences shall be served consecutively, uh, you are remanded to the custody of the Cass County Sheriff for transfer to the Indiana Department of Correction.
Transcript at 51-52.
[4] On April 20, 2015, the court entered a written sentencing order which provided
that the mitigating factors included that Cofield entered a voluntary plea
agreement, thus sparing the young victims from potential trauma associated
with having to testify at trial, and that he did not have a criminal record. The
order also found the following aggravating factors:
a. The harm or damage suffered by the victim of each offense was significant and greater than the elements necessary to prove the commission of the offense. . . . b. The victim of each offense was less than twelve (12) years of age (Count 1, age 11; Count 2, age 5) at the time the crime was committed . . . . c. The person was in a position having care, custody or control of the victim of each offense. . . .
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 4 of 8 Appellant’s Appendix at 45. The court found that the aggravating factors
outweighed the mitigating factors and that “[t]he commission of each crime in
this case is separate and distinct from the other and the sentence in each case
shall be served consecutively.” Id. The court sentenced Cofield to six years for
each of his convictions for child molesting as a class C felony and ordered that
the sentences be served consecutive to each other for an aggregate sentence of
twelve years.
Discussion
[5] The issue is whether the trial court abused its discretion in ordering that Cofield
serve his sentences for two counts of child molesting as class C felonies
consecutive to each other. Cofield argues that the court identified aggravating
factors for enhancing the sentences on the counts but did not identify separate
or additional aggravators in support of its decision to impose consecutive
sentences. He asserts the complexity of the case and severity of the crimes
made it particularly important that the court identify a specific aggravator in
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 23 2015, 9:34 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 Mark Leeman Gregory F. Zoeller Leeman Law Offices Attorney General of Indiana Logansport, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jerremy Buren Cofield, December 23, 2015 Appellant-Defendant, Court of Appeals Case No. 09A02-1505-CR-432 v. Appeal from the Cass Circuit Court State of Indiana, The Honorable Leo T. Burns, Appellee-Plaintiff. Judge Trial Court Cause No. 09C01-1406-FC-27
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 1 of 8 [1] Jerremy Buren Cofield appeals his sentence for two counts of child molesting as
class C felonies. Cofield raises two issues which we revise and restate as
whether the trial court abused its discretion in ordering that he serve his
sentences for two counts of child molesting as class C felonies consecutive to
each other.1 We affirm.
Facts and Procedural History
[2] Between January 1, 2013 and December 31, 2013, Cofield touched L.H.’s penis
and W.R.’s penis. L.H. was born in October 2007, and W.R. was born in
December 2001. On June 25, 2014, the State charged Cofield with: Count I,
child molesting as a class C felony for fondling W.R.’s penis; and Count II,
child molesting as a class C felony for fondling L.H.’s penis. The State and
Cofield entered into a plea agreement pursuant to which Cofield agreed to
plead guilty to both counts as charged and the parties agreed as to sentencing:
“The Court will impose the following sentence: Cap of twelve years on total
sentence. Court to determine all terms including consecutivity.” Appellant’s
Appendix at 33. On March 19, 2015, the court held a guilty plea hearing at
which Cofield admitted to touching L.H.’s penis and W.R.’s penis and that he
did so to satisfy his sexual desires.
1 Cofield also argues that the record establishes that his plea agreement was based on an understanding that he would have a right to appeal his sentence. We need not address this argument as we address the merits of Cofield’s argument on appeal that the court abused its discretion in sentencing him.
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 2 of 8 [3] On April 16, 2015, the court held a sentencing hearing. The court heard
testimony from L.H.’s grandmother, who testified as to the impact Cofield’s
actions had on L.H., that his grades had dropped, that he is angry, paranoid,
and cries a lot, that he fears people will leave him, and that he had started with
counseling. The court also heard testimony from W.R.’s mother, who testified
as to the impact of Cofield’s actions on W.R., that W.R. was going through
therapy, that she and her husband considered Cofield a close friend, and that
they helped his mother when needed. The prosecutor argued that the court
should order that Cofield’s sentences be served consecutively and that the
aggravators outweighed the mitigators. After discussing aggravating and
mitigating factors, the trial court stated in part:
The other issue before the Court is whether this is a pattern of conduct close in time or whether these are separate events that subject themselves to sentencing consecutively. . . . The Court found that there was a factual adequate basis but . . . the frankness of your admission, uh, was not typically, what a Court expects when it’s looking for an admission to a crime. I found the factual basis but it was difficult. There was some hesitancy on your part to really, uh admit exactly when this occurred and how it occurred and that makes creates a situation for the Court, uh, which makes the determination of a consecutive sentence, two (2) separate and distinct acts as opposed to same day close in time, more difficult. Uh, I have resolved that issue as well with a recollection with what was said during the fact-finding hearing and I now determine that the event with, uh, and I am not sure which happened first, but the event probably with the eleven (11) year old happened first and with knowledge that you got away with that, uh, a second victim was targeted, uh, and the crime committed against the second victim, the younger child. Aggravating, uh, or consecutive sentences are, uh appropriate in
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 3 of 8 this case and an aggravated sentence is appropriate in this case. The aggravators that I refer to are, uh, have been stated, which could in some cases, justify the maximum sentence of eight (8) years, however because of the, uh, mitigating circumstances, the aggregators [sic] do outweigh those mitigating circumstances of pleading guilty and not having an minimal criminal record, but, uh, there was a reason for the plea agreement that caps the sentence at twelve (12) years, uh, six (6) years on each is an aggravated sentence and each specific case I find that the aggravating factors outweigh the mitigating factors, you shall serve six (6) years in the Indiana Department of Correction on count one (1) and six (6) years in the Indiana Department Of Correction on count two (2). Those sentences shall be served consecutively, uh, you are remanded to the custody of the Cass County Sheriff for transfer to the Indiana Department of Correction.
Transcript at 51-52.
[4] On April 20, 2015, the court entered a written sentencing order which provided
that the mitigating factors included that Cofield entered a voluntary plea
agreement, thus sparing the young victims from potential trauma associated
with having to testify at trial, and that he did not have a criminal record. The
order also found the following aggravating factors:
a. The harm or damage suffered by the victim of each offense was significant and greater than the elements necessary to prove the commission of the offense. . . . b. The victim of each offense was less than twelve (12) years of age (Count 1, age 11; Count 2, age 5) at the time the crime was committed . . . . c. The person was in a position having care, custody or control of the victim of each offense. . . .
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 4 of 8 Appellant’s Appendix at 45. The court found that the aggravating factors
outweighed the mitigating factors and that “[t]he commission of each crime in
this case is separate and distinct from the other and the sentence in each case
shall be served consecutively.” Id. The court sentenced Cofield to six years for
each of his convictions for child molesting as a class C felony and ordered that
the sentences be served consecutive to each other for an aggregate sentence of
twelve years.
Discussion
[5] The issue is whether the trial court abused its discretion in ordering that Cofield
serve his sentences for two counts of child molesting as class C felonies
consecutive to each other. Cofield argues that the court identified aggravating
factors for enhancing the sentences on the counts but did not identify separate
or additional aggravators in support of its decision to impose consecutive
sentences. He asserts the complexity of the case and severity of the crimes
made it particularly important that the court identify a specific aggravator in
support of consecutive sentences. The State maintains that the court did not
abuse its discretion in imposing consecutive sentences because Cofield molested
two children and that injury to multiple victims is a valid aggravating factor that
supports consecutive sentences, and that the rationale for consecutive sentences
is apparent on the face of the record.
[6] We review a trial court’s sentencing determination for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). An abuse of discretion occurs if the decision is “clearly against Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 5 of 8 the logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom.” Id. A
trial court abuses its discretion if it: (1) fails “to enter a sentencing statement at
all;” (2) enters “a sentencing statement that explains reasons for imposing a
sentence—including a finding of aggravating and mitigating factors if any—but
the record does not support the reasons;” (3) enters a sentencing statement that
“omits reasons that are clearly supported by the record and advanced for
consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. at 490-491. The relative weight or value assignable to reasons properly
found, or those which should have been found, is not subject to review for
abuse of discretion. Id. at 491. We may review both the written and oral
sentencing statements in order to identify the findings of the trial court. Harris
v. State, 964 N.E.2d 920, 926 (Ind. Ct. App. 2012) (citing McElroy v. State, 865
N.E.2d 584, 589 (Ind. 2007)), trans. denied.
[7] The decision to impose consecutive sentences lies within the discretion of the
trial court. Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied.
In order to impose consecutive sentences, the trial court must find at least one
aggravating circumstance. Id. at 870. There is no basis for holding that a trial
court is restricted to a one-step balancing process when sentencing a defendant
for multiple crimes, and it is permissible for a trial court to consider aggravators
and mitigators in determining the sentence for each underlying offense and then
to independently consider aggravators and mitigators in determining whether to
impose concurrent or consecutive sentences. Id. Appellate review “should
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 6 of 8 focus on the forest—the aggregate sentence—rather than the trees—consecutive
or concurrent, number of counts, or length of the sentence on any individual
count” and that “[w]hether the counts involve one or multiple victims is highly
relevant to the decision to impose consecutive sentences if for no other reason
than to preserve potential deterrence of subsequent offenses.” Id. (citing
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).
[8] The imposition of consecutive sentences is a separate and discrete decision from
sentence enhancement, although both may be dependent upon the same
aggravating circumstances. Mathews v. State, 849 N.E.2d 578, 589 (Ind. 2006)
(citing Ajabu v. State, 722 N.E.2d 339, 343 (Ind. 2000)); see also Moore v. State,
907 N.E.2d 179, 181 (Ind. Ct. App. 2009) (noting the trial court “may rely on
the same reasons to impose an enhanced sentence and also impose consecutive
sentences”), reh’g denied, trans. denied. As with sentence enhancement, even a
single aggravating circumstance may support the imposition of consecutive
sentences. Mathews, 849 N.E.2d at 589 (citing Sanquenetti v. State, 727 N.E.2d
437, 442 (Ind. 2000)).
[9] The court found, as set forth above, that certain aggravating and mitigating
factors existed and that the aggravating factors outweighed the mitigating
factors. Cofield pled guilty to molesting two children, and at the sentencing
hearing the court stated with respect to its decision to impose consecutive
sentences that it had determined that “the event probably with the eleven (11)
year old happened first and with knowledge that you got away with that, uh, a
second victim was targeted, uh, and the crime committed against the second
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 7 of 8 victim, the younger child.” Transcript at 51-52. Additionally, recognizing
Cofield pled guilty to molesting two victims, the court found in part in its
sentencing order with regards to aggravating factors that “[t]he harm or damage
suffered by the victim of each offense was significant,” that “[t]he victim of each
offense was less than twelve (12) years of age (Count 1, age 11; Count 2, age 5) at
the time the crime was committed,” and that Cofield “was in a position having
care, custody or control of the victim of each offense.” Appellant’s Appendix at 45
(emphases added). Cofield does not challenge the validity of or the evidence
supporting the aggravating factors found by the court.
[10] Based on the record, we cannot say that the trial court abused its discretion in
ordering that Cofield serve his two six-year sentences for child molesting as
class C felonies consecutive to each other for an aggregate sentence of twelve
years.
Conclusion
[11] For the foregoing reasons, we affirm Cofield’s aggregate sentence of twelve
years for two counts of child molesting as class C felonies.
[12] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015 Page 8 of 8