MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 21 2018, 9:16 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 Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Cooley, February 21, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1709-CR-2032 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy Hart, Judge Appellee-Plaintiff. Pro Tem Trial Court Cause No. 49G05-1605-F4-20232
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 1 of 7 [1] Justin Cooley appeals his sentence for burglary as a level 4 felony. He raises
one issue which we revise and restate as whether his sentence is inappropriate
in light of the nature of the offense and the character of the offender. We
affirm.
Facts and Procedural History
[2] In May 2016, Tanya Pender resided in an apartment with her twenty-two-year-
old daughter who was eight months pregnant. Pender had been previously
introduced to Cooley because he knew the father of her daughter’s baby.
Pender had also previously seen Cooley with Lakita Richardson who lived in
the area.
[3] On May 17, 2016, Pender and her daughter left the apartment around 8:00 a.m.
Pender saw Cooley standing outside when she came out the side door. When
she returned to her apartment less than an hour later, she discovered that her
television, Xbox, games, controllers, and movies as well as a bottle containing
some change and a blanket were gone. She also noticed that the window to her
apartment was open farther than when she left, realized she had been robbed,
and called the police. After the police arrived, video surveillance from the
apartment complex was retrieved, and Pender identified Cooley on the video.
Subsequent to the incident, Pender had multiple encounters with Cooley in
which he threatened her life.
[4] On May 25, 2016, the State charged Cooley with burglary as a level 4 felony
and theft as a level 6 felony. On July 27, 2017, the court held a jury trial. Prior
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 2 of 7 to trial, the prosecutor offered that, if Cooley pled guilty to burglary, the State
would agree to cap his total sentence at nine years and any executed portion at
seven years. Cooley’s counsel stated that the offer had not significantly
changed and that “[t]he offer before was a cap of same 9 year term, cap of 6 on
executed term.” Transcript Volume II at 6. The prosecutor stated: “I’ll give
you that 6, I’ll go back to the original cap of 6 years executed. I normally don’t
do day of trial change, but in fairness . . . .” Id. After some discussion, Cooley
rejected the offer.
[5] Pender testified, identified Cooley on the video surveillance from the apartment
complex, and stated that Cooley disappeared from sight on the video at the
location of her daughter’s window. She identified Cooley’s girlfriend on the
video exiting a car and running. She also identified Cooley exiting her
apartment building on the video with her Xbox and controls “and everything
else.” Id. at 81. She also testified that she received some of her stolen property
back. Pender testified that she had multiple encounters with Cooley after May
17, 2016, and stated:
Every time I come out my door off of 34th Street he would threaten my life. Told me on God, he would shoot my house up. On Haughville he will shoot me up. On God, I would have to move. This is every time somebody walk down the street and I’m coming outside I seen him more after the burglary than I did before the burglary. Every time I come out my apartment somebody walking down the street, he would say, hey bro she a police ass b----, don’t talk to her. She called the police on me. I should beat your mother f----- ass right now. And I guess the reason he didn’t do it is because he knew cameras had actually
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 3 of 7 worked. So every time I got --- after a while I got tired of being -- - I started calling Detective Dunn because I don’t have no weapons to protect me and my pregnant daughter at that time. So every time he came and threatened me I made sure I left a message with Detective Dunn, and I told him something has to be done. Because I am tired of him threatening me and my child’s life.
Id. at 86-87. She also testified that she moved out of the county because of the
threats. The jury found Cooley guilty of burglary as a level 4 felony and theft as
a class A misdemeanor.
[6] On August 8, 2017, the court held a sentencing hearing. The prosecutor asked
the court to sentence Cooley to eleven years. Cooley’s counsel asked for the
advisory sentence of six years and for the court to consider alternative
placement. Cooley stated:
My heart goes out to anybody that is a victim of any crime. I just want to be there for my child, my first child. I feel like I’m obligated to be there. I know I made some mistakes in my life. I’m willing to step up to anything I did, but I also ask the Court to take it into consideration, my own child, please.
Transcript Volume III at 20. The court found no mitigators and found Cooley’s
delinquent activity and history of criminal behavior as aggravators. It merged
the conviction for theft as a class A misdemeanor and sentenced Cooley to eight
years for burglary as a level 4 felony. The court also noted that Cooley could
petition the court for a change of placement after he served six years.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 4 of 7 Discussion
[7] The issue is whether Cooley’s sentence is inappropriate in light of the nature of
the offense and his character. Ind. Appellate Rule 7(B) provides that we “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] Cooley argues there was nothing exceptional about the circumstances
surrounding the burglary that would make it more or less egregious than any
other burglary. With respect to his character, he asserts that his partner and co-
defendant, Richardson, was due to have his first child on October 24, 2017, and
that his earliest possible release date would be March 17, 2023, when his son
will be five years old. He also argues that he testified at the sentencing hearing
that “he was motivated to change his behavior due to the upcoming birth of his
son and the responsibility it entails.” Appellant’s Brief at 11. He contends that
“[i]t would appear that the motivation for this crime may have been due to
financial difficulties.” Id.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 21 2018, 9:16 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 Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Cooley, February 21, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1709-CR-2032 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy Hart, Judge Appellee-Plaintiff. Pro Tem Trial Court Cause No. 49G05-1605-F4-20232
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 1 of 7 [1] Justin Cooley appeals his sentence for burglary as a level 4 felony. He raises
one issue which we revise and restate as whether his sentence is inappropriate
in light of the nature of the offense and the character of the offender. We
affirm.
Facts and Procedural History
[2] In May 2016, Tanya Pender resided in an apartment with her twenty-two-year-
old daughter who was eight months pregnant. Pender had been previously
introduced to Cooley because he knew the father of her daughter’s baby.
Pender had also previously seen Cooley with Lakita Richardson who lived in
the area.
[3] On May 17, 2016, Pender and her daughter left the apartment around 8:00 a.m.
Pender saw Cooley standing outside when she came out the side door. When
she returned to her apartment less than an hour later, she discovered that her
television, Xbox, games, controllers, and movies as well as a bottle containing
some change and a blanket were gone. She also noticed that the window to her
apartment was open farther than when she left, realized she had been robbed,
and called the police. After the police arrived, video surveillance from the
apartment complex was retrieved, and Pender identified Cooley on the video.
Subsequent to the incident, Pender had multiple encounters with Cooley in
which he threatened her life.
[4] On May 25, 2016, the State charged Cooley with burglary as a level 4 felony
and theft as a level 6 felony. On July 27, 2017, the court held a jury trial. Prior
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 2 of 7 to trial, the prosecutor offered that, if Cooley pled guilty to burglary, the State
would agree to cap his total sentence at nine years and any executed portion at
seven years. Cooley’s counsel stated that the offer had not significantly
changed and that “[t]he offer before was a cap of same 9 year term, cap of 6 on
executed term.” Transcript Volume II at 6. The prosecutor stated: “I’ll give
you that 6, I’ll go back to the original cap of 6 years executed. I normally don’t
do day of trial change, but in fairness . . . .” Id. After some discussion, Cooley
rejected the offer.
[5] Pender testified, identified Cooley on the video surveillance from the apartment
complex, and stated that Cooley disappeared from sight on the video at the
location of her daughter’s window. She identified Cooley’s girlfriend on the
video exiting a car and running. She also identified Cooley exiting her
apartment building on the video with her Xbox and controls “and everything
else.” Id. at 81. She also testified that she received some of her stolen property
back. Pender testified that she had multiple encounters with Cooley after May
17, 2016, and stated:
Every time I come out my door off of 34th Street he would threaten my life. Told me on God, he would shoot my house up. On Haughville he will shoot me up. On God, I would have to move. This is every time somebody walk down the street and I’m coming outside I seen him more after the burglary than I did before the burglary. Every time I come out my apartment somebody walking down the street, he would say, hey bro she a police ass b----, don’t talk to her. She called the police on me. I should beat your mother f----- ass right now. And I guess the reason he didn’t do it is because he knew cameras had actually
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 3 of 7 worked. So every time I got --- after a while I got tired of being -- - I started calling Detective Dunn because I don’t have no weapons to protect me and my pregnant daughter at that time. So every time he came and threatened me I made sure I left a message with Detective Dunn, and I told him something has to be done. Because I am tired of him threatening me and my child’s life.
Id. at 86-87. She also testified that she moved out of the county because of the
threats. The jury found Cooley guilty of burglary as a level 4 felony and theft as
a class A misdemeanor.
[6] On August 8, 2017, the court held a sentencing hearing. The prosecutor asked
the court to sentence Cooley to eleven years. Cooley’s counsel asked for the
advisory sentence of six years and for the court to consider alternative
placement. Cooley stated:
My heart goes out to anybody that is a victim of any crime. I just want to be there for my child, my first child. I feel like I’m obligated to be there. I know I made some mistakes in my life. I’m willing to step up to anything I did, but I also ask the Court to take it into consideration, my own child, please.
Transcript Volume III at 20. The court found no mitigators and found Cooley’s
delinquent activity and history of criminal behavior as aggravators. It merged
the conviction for theft as a class A misdemeanor and sentenced Cooley to eight
years for burglary as a level 4 felony. The court also noted that Cooley could
petition the court for a change of placement after he served six years.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 4 of 7 Discussion
[7] The issue is whether Cooley’s sentence is inappropriate in light of the nature of
the offense and his character. Ind. Appellate Rule 7(B) provides that we “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] Cooley argues there was nothing exceptional about the circumstances
surrounding the burglary that would make it more or less egregious than any
other burglary. With respect to his character, he asserts that his partner and co-
defendant, Richardson, was due to have his first child on October 24, 2017, and
that his earliest possible release date would be March 17, 2023, when his son
will be five years old. He also argues that he testified at the sentencing hearing
that “he was motivated to change his behavior due to the upcoming birth of his
son and the responsibility it entails.” Appellant’s Brief at 11. He contends that
“[i]t would appear that the motivation for this crime may have been due to
financial difficulties.” Id. He also asserts that the State offered a sentence of six
years executed in its plea offer on the morning of trial and that that sentence
would seem to be sufficient a month later on the day of sentencing.
[9] The State points out that Cooley threatened Pender because she reported the
crime to the police. It argues that Cooley’s poor character supports his sentence
and that he had been provided multiple opportunities to reform his behavior. It Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 5 of 7 also contends that we should decline to find his sentence inappropriate based
upon Cooley’s argument that the sentence initially offered by the State was less
than the sentence he received and he failed to make a specific showing that his
sentence was improperly influenced by his exercise of his right to a jury trial.
[10] Ind. Code § 35-50-2-5.5 provides that a person who commits a level 4 felony
shall be imprisoned for a fixed term of between two and twelve years, with the
advisory sentence being six years.
[11] Our review of the nature of the offense reveals that Cooley entered Pender’s
apartment and took a television, Xbox, games, controllers, movies, a bottle
containing some change, and a blanket. Subsequent to the incident, Pender had
multiple encounters with Cooley in which he threatened her life, and she
moved out of the county because of the threats.
[12] Our review of the character of the offender reveals that as a juvenile Cooley was
alleged to have committed disorderly conduct in 2003 and 2004. In 2005, he
was alleged to have committed battery resulting in bodily injury, criminal
trespass, and resisting law enforcement, and these allegations were dismissed.
In 2006, allegations that Cooley had committed auto theft and criminal trespass
were found true. In 2007, an allegation that Cooley committed unauthorized
entry of a motor vehicle was found true. In 2008, allegations of auto theft,
criminal trespass, theft, and two allegations of child molesting were dismissed,
and an allegation of committing auto theft was found true. As an adult, Cooley
was convicted of auto theft as a class D felony in 2008. In 2009, he was
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 6 of 7 convicted of carjacking as a class B felony, robbery resulting in bodily injury as
a class B felony, and theft as a class D felony under separate cause numbers.
[13] The presentence investigation report (“PSI”) indicates that Cooley was
employed at the time of his arrest and had been previously employed in 2015
and 2016. He rated his financial situation as poor, but indicated that he did not
worry about meeting basic needs. The PSI states that Cooley’s overall risk
assessment score using the Indiana Risk Assessment System places him in the
high risk to reoffend category.
[14] After due consideration, we conclude that Cooley has not sustained his burden
of establishing that his eight-year sentence is inappropriate in light of the nature
of the offense and his character.
Conclusion
[15] For the foregoing reasons, we affirm Cooley’s sentence.
[16] Affirmed.
Baker, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018 Page 7 of 7