Jonathan S. Couch v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 23, 2019
• Docket: 18A-CR-2753
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 23 2019, 11:50 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissman Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana

Robert A. Rowlett Angela Sanchez Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jonathan S. Couch, May 23, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2753 v. Appeal from the Switzerland Circuit Court State of Indiana, The Honorable W. Gregory Coy, Appellee-Plaintiff. Judge Trial Court Cause No. 78C01-1711-F4-418

Barteau, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 1 of 9 Statement of the Case [1] After his plea agreement was accepted by the trial court, Jonathan S. Couch

appeals from the trial court’s order sentencing him to nine years executed in the

Indiana Department of Correction (DOC). He argues that his sentence is

inappropriate in light of the nature of the offense and the character of the

offender and requests that we resentence him to no more than two years

incarcerated. We affirm.

Issue [2] Couch presents the following question for our review: Is the nine-year sentence

inappropriate in light of the nature of the offense and the character of the

offender?

Facts and Procedural History [3] On October 12, 2017, at approximately 2:00 a.m., Couch and his cousin were

taking Klonopin or Xanax and smoking methamphetamine. Sometime

between 4:30 and 5:00 a.m., Couch, who was by then alone, went to his ex-

girlfriend’s house and pushed in the back door. He had purchased a pit bull

when he was still in a relationship with her. However, he left the dog he had

named Felony with her when they separated so her daughter could continue to

enjoy the pet. That morning he decided he wanted to reclaim the dog. In the

process of collecting the dog, he also removed three televisions, a BB gun, and a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 2 of 9 1 CPAP machine worth $8,000.00 from the house along with other items,

including a backpack containing books belonging to his ex-girlfriend’s daughter.

[4] When Couch’s ex-girlfriend arrived home later in the day on October 12, 2017,

it was immediately apparent to her that her home had been “gone through” and

that many of her possessions were missing. Appellant’s App. Vol. II, p. 18.

She contacted the Switzerland County Sheriff’s Department and reported that

items belonging to her were stolen from her home.

[5] When officers arrived to investigate the report, they asked Couch’s ex-girlfriend

if she knew of any possible suspects. She suggested Couch, who had lived with

her until November 2016. During the investigation, a neighbor reported seeing

a Dodge Dakota at the front of the residence. Later, officers learned that

Couch’s brother owned a vehicle matching that description.

[6] Officers contacted Couch and went to his residence. Upon arriving, an officer

observed Felony through the window of the house while that officer was

waiting outside. When Couch came to answer the door, the officer asked him if

he knew anything about a pit bull stolen from his ex-girlfriend’s home. Couch,

interrupting the officer, volunteered that someone, whose name he did not

know, had dropped the dog off at his residence. The officer told Couch that he

believed he was lying and demanded that the dog and stolen televisions be

returned. Couch told the officer he would retrieve the stolen items. He

1 CPAP is the acronym commonly used for continuous positive airway pressure machines.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 3 of 9 returned with two of the missing televisions and the pit bull, but he did not

remember taking any of the other items reported missing.

[7] An officer from the Switzerland County Sheriff’s Department interviewed

Couch on October 16, 2017, after administering his advice of rights. Couch

admitted that he used his brother’s Dodge Dakota on October 11, 2017. He

and his cousin smoked some methamphetamine and took a pill (either

Klonopin or Xanax). Couch described going to his ex-girlfriend’s house for the

primary purpose of reclaiming the dog. He said he would be able to find the

third television he had taken and would return it. As for the other items

reported missing, Couch stated that he just “took stupid shit that made no

sense,” and further stated that “he was pissed and wanted to burn the place to

the ground.” Id. at 20. When the officer asked about the location of other

items that were taken, Couch explained that “he was on drugs and basically

woke up the next morning not really knowing what he did.” Id.

2 [8] On November 15, 2017, Couch was charged with burglary, a Level 4 felony.

On September 14, 2019, Couch agreed to plead guilty to the burglary charge,

and the State agreed to cap the maximum sentence at nine years and to dismiss

the remaining charges of theft and residential entry. Otherwise, the parties

agreed to leave sentencing open to the discretion of the trial court.

2 Ind. Code § 35-43-2-1(1) (2014).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 4 of 9 [9] After accepting the parties’ plea agreement, the trial court sentenced Couch to

nine years executed in the DOC with credit for 333 actual days served, and no

restitution was ordered at that time. The trial court advised that should Couch

continue to exhibit good behavior like he had in jail while incarcerated in the

DOC, the trial court would consider a petition for a sentence modification.

Couch now appeals.

Discussion and Decision [10] Couch claims that the trial court’s sentence is inappropriate in light of the

nature of the offense and the character of the offender. The plea agreement

provided that Couch’s maximum sentence exposure was capped at nine years.

However, the trial court retained the discretion to fashion and impose a

sentence within that cap.

[11] “Even when a trial court imposes a sentence within its discretion, the Indiana

Constitution authorizes independent appellate review and revision of this

sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019) (citing

Ind. Const. art. 7, §§ 4, 6; Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016)).

“Indiana appellate courts may revise a sentence if ‘after due consideration of

the trial court’s decision’ they find ‘the sentence is inappropriate in light of the

nature of the offense and the character of the offender.’” Id. (quoting Ind.

Appellate Rule 7(B)). We emphasize that this analysis is limited to “not

whether another sentence is more appropriate; rather, the question is whether

the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 5 of 9 Ct. App. 2008) (citing Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App.

2007)). The defendant bears the burden of persuading the appellate court that

“his or her sentence has met this inappropriateness standard of review.”

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[12] The sentencing range for burglary is imprisonment for a fixed term of between

two years and twelve years with the advisory sentence being six years. Ind.

Code §35-50-2-5.5 (2014). Couch’s sentence was capped at nine years which is

below the statutory maximum sentence, yet slightly above the advisory

sentence.

[13] In Justice Dickson’s concurring opinion in Childress he expressed his opinion

that “[a] defendant’s conscious choice to enter a plea agreement that limits the

trial court’s discretion to a sentence less than the statutory maximum should

usually be understood as strong and persuasive evidence of sentence

reasonableness and appropriateness.” 848 N.E.2d at 1081. He further stated

that, in his opinion, “courts considering future claims for appellate sentence

review following such plea agreements [are permitted] to grant relief only in the

most rare, exceptional cases.” Id.

[14] As our Supreme Court said later, “[w]hile we apply our power under Rule 7(B)

sparingly, we may revise sentences, ‘when certain broad conditions are

satisfied.’” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017) (quoting Rice v. State,

6 N.E.3d 940, 947 (Ind. 2014)). The Court further stated that “[s]entence

appropriateness thus turns on ‘myriad. . .factors that come to light in a given

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 6 of 9 case.’” Id. (quoting Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “We

begin this analysis with ‘substantial deference to the trial court’s sentence’ then

‘independently examine’ the defendant’s offenses and character.” Id. (quoting

Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015)).

[15] “The nature of the offense is found in the details and circumstances of the

commission of the offense and the defendant’s participation.” Perry v. State, 78

N.E.3d 1, 13 (Ind. Ct. App. 2017). Couch, who was under the influence of

methamphetamine and a pill or pills, stole property from his ex-girlfriend. That

property was worth approximately $10,000 and included televisions, a pit bull,

and an $8,000 CPAP machine. He also stole his ex-girlfriend’s daughter’s

backpack containing many things including books.

[16] Couch’s case is different from that of Frye v. State, 837 N.E.2d 1012 (Ind. 2005),

cited by him in support of a sentence reduction. In Frye, our Supreme Court

reduced a defendant’s forty-year sentence for his burglary conviction and

habitual offender adjudication, finding that as respects the nature of the offense

(1) there was a marginal pecuniary loss of property ($395), (2) the home was

unoccupied, (3) the defendant was unarmed, and (4) most of the items were

returned to the victim after the defendant’s arrest. Additionally, there is no

evidence in that opinion that Frye knew his victim. Couch, on the other hand,

took items valued at approximately $10,000.00. Although there is evidence that

Couch returned some of the items taken, the record is unclear whether some of

the more expensive items, such as the $8,000.00 CPAP machine, were returned.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 7 of 9 Furthermore, Couch, unlike Frye, knew his victims and wished to engage in

vengeful behavior against them.

[17] As for Couch’s character, we note, and he acknowledges, his extensive juvenile

history and adult criminal history. Couch’s juvenile history consists of thefts,

burglaries, and an auto theft. Three of those charges were waived into adult

court. His adult criminal history consists of multiple convictions of burglary, a

conviction of theft, and a felony conviction of possession of a dangerous device

or material by a prisoner. Couch’s continued pattern of committing crimes

demonstrates his refusal to reform to a law-abiding life. Of note, he has at least

100 conduct violations during his prior periods of incarceration and has one

parole violation.

[18] Even though Couch disavowed any current issues with substance abuse in his

pre-sentence investigation report, he argues on appeal that his substance abuse

and addiction are similar to those factors our Supreme Court discussed in Frye

when reducing a sentence. In its review of Frye’s character under the

inappropriate sentence analysis, our Supreme Court noted Frye’s lifelong

struggle with alcoholism and unsuccessful treatment for such. The Court stated

as follows:

While we do not condone Frye’s past or current violations of the law, we cannot conclude that those transgressions even when aggregated demonstrate a character of such recalcitrance or depravity to justify a sentence of 40 years.

837 N.E.2d at 1015.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 8 of 9 [19] In contrast, Couch, although under the influence of illegal substances, made the

decision to break into his ex-girlfriend’s house and take intimate items he knew

about from his previous relationship with her. He took her medical device (the

CPAP machine), her daughter’s backpack filled with books, and a pet dog he

had left for her daughter’s enjoyment. Many of the items taken illustrate the

vengeful nature of the criminal activity. Indeed, Couch admitted “he was

pissed and wanted to burn the place to the ground.” Appellant’s App. Vol. II,

p. 20.

[20] Couch has not met his burden of persuading us that his sentence is

inappropriate in light of the nature of the offense or the character of the

offender.

Conclusion [21] Based upon the foregoing, we affirm the trial court’s sentencing decision.

[22] Affirmed.

Baker, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019 Page 9 of 9