Michael L. Cope, II v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 27, 2017
• Docket: 79A02-1708-CR-1752
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 27 2017, 8:54 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana J. T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael L. Cope, II, December 27, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1708-CR-1752 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1705-F4-25

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Defendant, Michael L. Cope II (Cope), appeals his sentence

following his conviction for possession of a firearm by a serious violent felon, a

Level 4 felony, Ind. Code § 35-47-4-5(c).

[2] We affirm.

ISSUES [3] Cope raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its sentencing discretion; and

(2) Whether Cope’s sentence is inappropriate in light of the nature of the

offense and his character.

FACTS AND PROCEDURAL HISTORY [4] In March or April of 2017, Cope obtained a handgun, purportedly to keep at

home for self-protection. In May of 2017, Cope’s wife moved out of their

home, taking her fifteen-year-old daughter and their seven shared children with

her. Based on allegations of domestic violence and methamphetamine use

against him, Cope believed that his wife intended to seek an order of protection

to prevent him from seeing the children. On May 23, 2017, the Lafayette

Police Department received a report that Cope was in possession of a firearm

and intended to kidnap his fifteen-year-old step-daughter from the residence

where his wife and the children were staying. Upon investigation, the officers

discovered Cope inside a parked vehicle in close proximity to his family.

Following a pat-down, the officers recovered a loaded .45 caliber semi- Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 2 of 11 automatic handgun from Cope’s waistband. Due to a prior felony conviction,

Cope is disqualified from possessing a firearm.

[5] On May 30, 2017, the State filed an Information, charging Cope with Count I,

unlawful possession of a firearm by a serious violent felon, a Level 4 felony,

I.C. § 35-47-4-5(c); Count II, carrying a handgun without a license, a Class A

misdemeanor; Count III, theft, a Class A misdemeanor, I.C. § 35-43-4-2(a); and

Count IV, carrying a handgun without a license with a prior felony conviction,

a Level 5 felony, I.C. § 35-47-2-1(e)(1). On June 15, 2017, Cope entered into a

plea agreement with the State, pursuant to which he agreed to plead guilty to

Count I, possession of a firearm by a serious violent felon as a Level 4 felony.

In exchange, the State would dismiss the remaining charges. The plea

agreement stipulated that sentencing would be left to the discretion of the trial

court. That day, the trial court conducted a hearing. The trial court found that

Cope understood the nature of his charges and the impact of pleading guilty,

and the trial court determined that Cope’s plea was freely and voluntarily made

and supported by a factual basis. The trial court took Cope’s guilty plea under

advisement. On July 5, 2017, the trial court held a sentencing hearing, at which

time it accepted Cope’s guilty plea and entered a judgment of conviction for a

Level 4 felony for possession of a firearm by a serious violent felon. The trial

court sentenced Cope to serve seven years, with four years executed in the

Indiana Department of Correction and three years suspended to supervised

probation.

[6] Cope now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 3 of 11 DISCUSSION AND DECISION I. Trial Court’s Sentencing Discretion

[7] Cope claims that the trial court abused its discretion in sentencing him to seven

years. Sentencing decisions are a matter of trial court discretion and are

reviewed on appeal only for an abuse of that discretion. Anglemyer v. State, 868

N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court

abuses its discretion if its 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.’” Id. (quoting K.S. v. State, 849 N.E.2d 538,

544 (Ind. 2006)). A trial court “may impose any sentence within the statutory

range without regard to the existence of aggravating or mitigating factors.” Id.

at 489. If the trial court “‘finds’ the existence of ‘aggravating circumstances or

mitigating circumstances’ then the trial court is required to give ‘a statement of

the court’s reasons for selecting the sentence that it imposes.’” Id. at 490

(quoting I.C. § 35-38-1-3(3)).

[8] On appeal, a trial court may be found to have abused its discretion by failing to

enter a sentencing statement at all; entering a sentencing statement that explains

its reasons for imposing a sentence where such reasons are not supported by the

record or are improper as a matter of law; or entering a sentencing statement

that omits reasons which are clearly supported by the record and advanced for

consideration. Id. at 490-91. A trial court does not abuse its discretion by

failing to properly weigh aggravating and mitigating factors. Id. at 491. If we

find that the trial court has abused its sentencing discretion, our court will

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 4 of 11 remand for resentencing only “if we cannot say with confidence that the trial

court would have imposed the same sentence had it properly considered

reasons that enjoy support in the record.” Id.

[9] Possession of a firearm by a serious violent felon, as a Level 4 felony, is

punishable by a fixed term of imprisonment “of between two (2) and twelve

(12) years, with the advisory sentence being six (6) years.” I.C. § 35-50-2-5.5.

In this case, as factors warranting an aggravated sentence, the trial court cited

Cope’s prior criminal history and “consider[ed] the circumstances that

surrounded this particular offense”—specifically, the evidence indicating that

Cope’s wife lived in fear of him and that Cope was in possession of the firearm

in order to kidnap his stepdaughter. (Tr. p. 42). As mitigating circumstances,

the trial court identified the fact that Cope pled guilty and did so “in a timely

fashion.” (Tr. p. 43). The trial court further found that Cope “seems to be able

to maintain good employment when he is working[,]” and he “cooperated with

law enforcement to a certain extent.” (Tr. p. 43). However, the trial court

noted that Cope’s cooperation was diminished by the fact that he was not

“completely honest and forth[]coming about the circumstances that [led] up to

this particular offense.” (Tr. p. 44). Accordingly, the trial court concluded that

the aggravating factors outweighed the mitigating factors and imposed a slightly

aggravated sentence of seven years.

[10] Cope now contends that the trial court abused its discretion by declining to

consider an additional statutory mitigating factor: that his incarceration will

result in undue hardship to his dependents. See I.C. § 35-38-1-7.1(b)(10)

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 5 of 11 (allowing the trial court to consider in mitigation that incarceration “will result

in undue hardship to the person or the dependents of the person”). It is well

established that a trial court is under no obligation “to accept a defendant’s

claim as to what constitutes a mitigating circumstance.” Weedman v. State, 21

N.E.3d 873, 893 (Ind. Ct. App. 2014), trans. denied. “Where the trial court does

not find the existence of a mitigating factor after it has been argued by counsel,

the trial court is not obligated to explain why it has found that the factor does

not exist.” Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App. 2012), trans.

denied. “A claim that the trial court failed to find a mitigating circumstance

requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record.” Weedman, 21 N.E.3d at 893.

[11] In response to Cope’s proffered mitigating circumstance, the trial court stated:

[F]irst of all [the children] are not in his custody because juvenile court has stepped in and uh, taken that.[ 1] Second of all, it appears to me if you’ve got a prior conviction as a serious violent felon and you knowingly possess a gun and you know you have these seven (7) children to support you know that you are jeopardizing that situation. You are jeopardizing that relationship and that ability to support the children. So, sometimes people come in here and they say, well you know [undue] or long term incarceration will cause an [undue] hardship upon my children, but yet you knew you had those children. You knew you had the duty to support them, and an obligation to support them at the time you took possession of this

1 On May 24, 2017, the Indiana Department of Child Services initiated Child in Need of Services proceedings for Cope’s seven children and placed them in the care of relatives.

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 6 of 11 gun whether it was from your nephew for protection or whether it was [for] some ulterior motive, you made that conscious decision and so it is a little disingenuous I think in this particular circumstance to come in and argue it would cause [undue] hardship on the children when in fact your own actions created this situation.

(Tr. p. 44). According to Cope, the trial court’s “rationale is not a valid reason

to disregard undue hardship as a mitigating circumstance” in light of the

substantial evidence that, prior to this crime, Cope was gainfully employed and

supported his children, which he will no longer be able to do. (Appellant’s Br.

p. 10). Cope insists that

[k]nowingly committing a crime does not negate the fact that imprisonment from said crime may result in an undue hardship to one’s dependents. If the trial court’s reason for refusing to consider hardship on dependents were legitimate, then there would never be a case in which undue hardship was identified as a mitigating circumstance.

(Appellant’s Br. p. 10).

[12] We agree with Cope that the evidence could support a finding that his

incarceration will result in an undue hardship to his dependents. Cope is thirty-

three years old and is the biological father of seven children with his now-

estranged wife. His pre-sentence investigation report establishes that he had

maintained gainful employment and was financially stable prior to his

incarceration. Before Cope’s wife and the children left the marital home, Cope

had supported the family. Cope’s wife was unemployed and, as a consequence

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 7 of 11 of Cope’s arrest and other unknown factors, the children were taken into

protective custody. Thus, that Cope’s children will suffer an undue hardship—

although the result of his own actions—is likely. Regardless, we decline Cope’s

request to remand for resentencing on this basis. In sentencing Cope to only

one year beyond the advisory term, the trial court found multiple aggravating

factors and was particularly perturbed with respect to the circumstances

surrounding Cope’s crime. Therefore, we cannot say that the trial court would

have imposed a different sentence even if it had accepted Cope’s proffered

mitigating circumstance. See Anglemyer, 868 N.E.2d at 491.

II. Inappropriate Sentence Review

[13] Cope also claims that his seven-year sentence is inappropriate. As we

previously indicated, “‘sentencing is principally a discretionary function in

which the trial court’s judgment should receive considerable deference.’” Parks

v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008)). However, our court may revise a statutorily

permissible sentence 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.” Ind. Appellate Rule 7(B).

[14] Appellate Rule 7(B) provides for sentence review in an “attempt to leaven the

outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. Ultimately,

“whether we regard a sentence as appropriate at the end of the day turns on our

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 8 of 11 sense of the culpability of the defendant, the severity of the crime, the damage

done to others, and myriad other factors that come to light in a given case.” Id.

at 1224. Our court focuses on “the length of the aggregate sentence and how it

is to be served.” Id. Cope bears the burden of persuading this court that his

sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.

2014). Cope seeks a reduction in his sentence to six years, with three years

executed in the Department of Correction and three years suspended to

[15] With respect to the nature of the offense, “the advisory sentence is the starting

point [that] our legislature has selected as [an] appropriate sentence for the

crime committed.” Richardson v. State, 906 N.E.2d 241, 247 (Ind. Ct. App.

2009). Here, the trial court sentenced Cope to seven years for a crime that

carries an advisory term of six years. I.C. § 35-50-2-5.5. The trial court ordered

Cope to execute four years and suspended the remaining three years to

probation. Cope now claims that this is inappropriate because his “offense is

less egregious than a ‘typical’ offense of unlawful possession of a firearm” in

that he “possessed only a single firearm for home protection. The firearm was

not stolen, and there is no evidence Cope ever fired the handgun.” (Appellant’s

Br. pp. 11-12). However, the record indicates that after Cope’s wife, fearing for

her safety, took the children and left the marital home, Cope’s brother reported

to the police that Cope had hatched a plan to kidnap his stepdaughter. When

the police officers investigated, they found Cope asleep in a parked vehicle just

a few houses down from where his estranged wife and children, including the

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 9 of 11 stepdaughter, were staying. Cope denied that he intended to kidnap the minor

girl, but despite his status as a convicted felon and his knowledge that he was

prohibited from possessing firearms, Cope was carrying a loaded .45 caliber

semi-automatic handgun in his waistband.

[16] Turning to his character, Cope argues that a reduction in his sentence is

warranted because he took responsibility for his actions and pled guilty; he is

educated and capable of working, even evidencing a strong work history; he is

involved in his community; and he has a strong desire to reestablish his

relationship with his children. While redeemable qualities, we do not find that

they rise to the level of revising a sentence, especially in light of his less-than-

admirable traits. Although it is not the most notorious of criminal records this

court has seen, Cope’s criminal history demonstrates his lack of respect for

court authority and refusal to lead a law-abiding life. He has prior

misdemeanor convictions for possession of marijuana and operating a vehicle

without having ever received a license, in 2002 and 2004 respectively, as well as

felony convictions for dealing in a controlled substance and auto theft, both in

2002. Cope has a host of other arrests on his record and has had his probation

revoked on two prior occasions. While we recognize that there is a significant

gap between his last conviction in 2004 and the present offense, the evidence

does not support a finding that he lived as an upstanding citizen during that

time. Rather, Cope admitted to a history of using marijuana, mushrooms and

methamphetamine—specifying that he had used methamphetamine

approximately one week before the incident resulting in his present conviction.

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 10 of 11 Furthermore, while not charged in relation to any instances of domestic

violence, Cope’s estranged wife testified during the sentencing hearing that she

lives in fear of him, and the trial court found such a fear to be reasonable based

on “the fact that she was trying to escape an abusive relationship and then

[Cope was] found near the residence of where she was hiding with this loaded

gun.” (Tr. p. 45). Accordingly, we cannot say that Cope’s sentence is

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

CONCLUSION [17] Based on the foregoing, we decline to remand the case for resentencing based

on an abuse of the trial court’s discretion, and we conclude that Cope’s sentence

is not inappropriate in light of the nature of the offense and his character.

[18] Affirmed.

[19] Baker, J. and Brown, J. concur

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-CR-1752 | December 27, 2017 Page 11 of 11