John Richard Kochopolous v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 8, 2019
• Docket: 18A-CR-3158
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 08 2019, 7:24 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Appellate Division Attorney General Office of the Public Defender Crown Point, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John Richard Kochopolous, August 8, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3158 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Samuel L. Cappas, Appellee-Plaintiff Judge Trial Court Cause No. 45G04-1609-F5-93

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 1 of 9 Case Summary [1] Following a bench trial, John Richard Kochopolous appeals his eight-and-one-

half-year sentence for level 5 felony operating a motor vehicle after forfeiture of

license for life, level 6 felony operating a vehicle while intoxicated resulting in

serious bodily injury, and level 6 felony leaving the scene of an accident

resulting in serious bodily injury. Kochopolous asserts that the trial court erred

by finding “derivative” aggravators and by considering his lack of remorse as an

aggravating circumstance. Kochopolous contends, and the State agrees, that his

level 6 felony convictions violate double jeopardy principles. We find no

reversible error in the trial court’s finding of aggravators, but we reverse and

remand with instructions to reduce Kochopolous’s conviction for level 6 felony

leaving the scene of an accident resulting in serious bodily injury to a class B

misdemeanor and for resentencing on that count.

Facts and Procedural History

[2] On September 24, 2016, Daniel Ridder and Michael Shelton were in Hammond

with a group of friends to attend a sporting event at the Hammond Civic

Center. While crossing the street on a crosswalk, Ridder and Shelton were

struck by a silver minivan, which left the scene. Witnesses described the

incident to police who, less than ten minutes later, pulled over a silver minivan

that had a smashed-in windscreen that contained at least one victim’s blood and

hair. Kochopolous was the sole occupant of the vehicle when police pulled him

over, approximately four blocks from his home. He exhibited several signs of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 2 of 9 intoxication and admitted to police that he had at least a few beers that night

before driving. Investigators determined that Kochopolous was driving while

intoxicated at approximately twice the legal limit.

[3] The State charged Kochopolous with level 5 felony operating a motor vehicle

after forfeiture of license for life, level 6 felony operating a vehicle while

intoxicated resulting in serious bodily injury, level 6 felony leaving the scene of

an accident resulting in serious bodily injury to Ridder, and class A

misdemeanor leaving the scene of an accident resulting in bodily injury to

Shelton. At his bench trial, Kochopolous testified that his next-door neighbor

was driving his vehicle at the time of the accident and that he was the

passenger. Kochopolous testified that only after his neighbor drove to another

location and exited the vehicle, did he begin to drive the damaged minivan

home when police stopped him.

[4] The trial court found Kochopolous guilty as charged. At sentencing, the trial

court found Kochopolous’s poor health and alcoholism as mitigators, and

found fourteen aggravators, including Kochopolous’s criminal history, his

inability to obey the law, that he is a danger to community, and his lack of

remorse. The trial court found that the aggravators “substantially” outweighed

the mitigators. Tr. Vol. 4 at 170. The trial court merged the class A

misdemeanor conviction with the level 6 felony leaving the scene of an accident

with serious bodily injury conviction. The trial court then sentenced

Kochopolous to six years for the level 5 felony conviction, to be served

consecutive to concurrent two-and-one-half-year sentences on the level 6 felony

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 3 of 9 convictions, for an aggregate sentence of eight and one-half years, all executed.

This appeal followed.

Discussion and Decision

Section 1 – The trial court did not commit reversible error in finding aggravating circumstances. [5] Kochopolous contends that the trial court erred by finding several “derivative”

aggravating circumstances and by finding his lack of remorse as an aggravator.

“Generally speaking, sentencing decisions are left to the sound discretion of the

trial court, and we review the trial court’s decision only for an abuse of this

discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied

(2016). “An abuse of discretion occurs if the decision is clearly against the logic

and effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom.” Anglemeyer v. State,

868 N.E.2d 482, 490 (Ind. 2007) (quotation marks omitted), clarified on reh’g,

875 N.E.2d 218. The finding of aggravating and mitigating circumstances rests

within the trial court’s discretion. Newsome v. State, 797 N.E.2d 293, 301 (Ind.

Ct. App. 2003), trans. denied (2004). A trial court may abuse its discretion where

it includes findings of aggravating and mitigating factors in its sentencing

statement that are not supported by the record, or that are based on reasons that

are improper as a matter of law. Anglemeyer, 868 N.E.2d at 490-91.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 4 of 9 1.1 - The trial court did not abuse its discretion in finding “derivative” aggravating circumstances.

[6] At the sentencing hearing, the trial court listed as an aggravator Kochopolous’s

multiple alcohol-related convictions. The trial court also listed as aggravators

his inability to obey the drink-drive laws of Indiana and that he is a danger to

the community because he is unable to address his alcoholism. Citing Morgan v.

State, 829 N.E.2d 12, 17 (Ind. 2005), and Neff v. State, 849 N.E.2d 556, 560 (Ind.

2006), Kochopolous claims that these findings are “derivative” of his alcohol-

related criminal history, and that they cannot serve as separate aggravating

circumstances. Appellant’s Br. at 11.

[7] Both Morgan and Neff, however, were decided under Indiana’s prior

presumptive sentencing scheme; as such, Kochopolous’s claim of error is

unavailable because he was sentenced under the current advisory sentencing

scheme. McMahon v. State, 856 N.E.2d 743, 751 n.8 (Ind. Ct. App. 2006).

Consequently, we find no abuse of discretion.

1.2 - The trial court abused its discretion in finding Kochopolous’s lack of remorse to be an aggravator, but this error is harmless.

[8] Next, Kochopolous contends that the trial court abused its discretion in finding

his lack of remorse as an aggravator. Kochopolous claims that he “simply

asserted his innocence,” and that the trial court “impermissibly penalized him

for disputing his guilt.” Hollen v. State, 740 N.E.2d 149, 158 (Ind. Ct. App.

1999), opinion adopted by 761 N.E.2d 398 (Ind. 2002). After a review of the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 5 of 9 record, we believe that the trial court has improperly equated Kochopolous’s

maintenance of innocence with a lack of remorse.

[9] A trial court may consider a defendant’s lack of remorse as an aggravator,

which typically manifests where a defendant displays “disdain or recalcitrance.”

Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014). “This is distinguished

from the right to maintain one’s innocence . . . .” Id. As such, a trial court may

not consider lack of remorse as an aggravator where a defendant “consistently

maintain[s] his innocence if [done] so in good faith.” Id. This court has

addressed the difficult issue involving the denial of guilt being applied as an

aggravator multiple times. See, e.g., Sloan, 16 N.E.3d 1018; Kien v. State, 782

N.E.2d 398 (Ind. Ct. App. 2003), trans. denied; Cox v. State, 780 N.E.2d 1150

(Ind. Ct. App. 2002); Hollen, 740 N.E.2d 149; Bluck v. State, 716 N.E.2d 507

(Ind. Ct. App. 1999).

[10] While a defendant has an absolute right to maintain his innocence throughout

all criminal proceedings, lack of remorse may still be regarded as an aggravator.

Bluck, 716 N.E.2d at 513. However, “[t]his court held that even though there

was corroborating evidence of the defendant’s guilt, it did not necessarily follow

that the defense was maintained in bad faith and therefore subjected the

defendant to an enhanced sentence.” Kien, 782 N.E.2d at 412 (citing Hollen, 740

N.E.2d at 159). Indeed, to do so would endorse the proposition that any time a

defendant maintained his innocence and lost, he would be subjected to an

enhanced sentence. Sloan, 16 N.E.2d at 1028. As was the case in Kien and

Hollen, we are faced with a defendant who has maintained his innocence

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 6 of 9 throughout all criminal proceedings where there was corroborating evidence as

to his guilt.

[11] Throughout the proceedings, Kochopolous has claimed that he was not the

driver when his minivan struck the two victims, even though he admitted to

having drunk alcohol and then driving at some point after the collision. While a

number of people witnessed Kochopolous’s silver minivan strike the two

victims, no witnesses and no direct evidence could place Kochopolous as the

driver of the minivan at the time of the accident. There is plenty of

circumstantial and physical evidence that points to Kochopolous’s guilt, but “it

is not so overwhelmingly condemning that we can say that [he] maintained his

innocence in bad faith.” Kien, 782 N.E.2d at 413.

[12] And while Kochopolous did not express any sorrow, concern, or remorse for

the victims, “[t]here is no indication in the record that [Kochopolous’s]

assertion of his innocence under these circumstances was in bad faith or

amounted to disdain or recalcitrance.” Hollen, 740 N.E.2d at 159 (emphasis

added). As such, the trial court abused its discretion in finding Kochopolous’s

lack of remorse to be an aggravator.

[13] However, “[a] single aggravating circumstance may be sufficient to enhance a

sentence. When a trial court improperly applies an aggravator, but other valid

aggravating circumstances exist, a sentence enhancement may still be upheld.”

Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v.

State, 716 N.E.2d 1273, 1278 (Ind. 1999)), trans. denied (2017). Given that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 7 of 9 numerous other valid aggravators exist, and stand unchallenged, we find no

need to remand for resentencing. Anglemeyer, 868 N.E.2d at 491.

Section 2 – Kochopolous’s two level 6 felony convictions violate double jeopardy principles. [14] Kochopolous contends that his double jeopardy rights were violated when the

trial court entered judgment of conviction and sentenced him for level 6 felony

driving while intoxicated resulting in serious bodily injury and level 6 felony

leaving the scene of an accident resulting in serious bodily injury because they

are based on the same bodily injury. See, e.g., Owens v State, 897 N.E.2d 537,

539 (Ind. Ct. App. 2008) (holding that defendant’s convictions and sentences

for murder and robbery resulting in serious bodily injury violated double

jeopardy principles because they were based on the same bodily injury). The

State properly concedes that both convictions cannot remain level 6 felonies.

[15] A reviewing court may remedy a double jeopardy violation by reducing either

conviction to a less serious form of the same offense, if it will eliminate the

violation, or by vacating one of the offending convictions. Moala v. State, 969

N.E.2d 1061, 1065 (Ind. Ct. App. 2015). “The reviewing court will make this

determination itself, being mindful of the penal consequences that the trial court

found appropriate.” D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App. 2017)

(quotation marks omitted). Here, reducing the level 6 felony conviction for

leaving the scene of an accident resulting in serious bodily injury to class B

misdemeanor leaving the scene of an accident will eliminate the double

jeopardy violation. This also leaves intact the trial court’s aggregate sentence of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 8 of 9 eight and one-half years. We therefore reverse and remand with instructions to

reduce the level 6 felony to a class B misdemeanor and for resentencing on that

count. The trial court need not hold a sentencing hearing on remand.

[16] Affirmed in part, reversed in part, and remanded.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019 Page 9 of 9