Court of Appeals of Indiana | Memorandu m Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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.

A TTORNEY FOR A PPELLANT Leanna Weissman Lawrenceburg, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Robert A

. Rowlett Angela Sanchez Deputy Attorney s General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Jonath a n S. Couch , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. May 23, 2019 Court of Appeals Ca se No. 18A

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- 2753 Appeal from the Switzerland Circuit Court The Honorable W. Gregory Coy, Judge Trial Court Cause No. 78C01

- 1711

- F4

- 418

Barteau , Senior J udge
.Court of Appeals of Indiana | Memorandu m Decision 18A

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## 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 y ears incarcera ted . 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 approximatel y 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 whe n 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 h e wanted to reclaim the dog . In the
process o f collecting the dog, he also removed three televisions, a BB gun, and aCourt of Appeals of Indiana | Memorandu m Decision 18A

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CPAP 1 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 t he 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 th at 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 t h at 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 t he stolen items. He

1 CPAP is the acronym commonly used for continuous positive airway pressure machines.Court of Appeals of Indiana | Memorandu m Decision 18A

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returned with two of the missing televisions and the pit bull , but he did not

reme mber taking any of the other items reported missing.

[7] An o fficer from the S witzerland County Sheriff’s Department inter viewed 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 sh i t that made no

sense , ” and f

urther 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 kn owing what he did.” Id.

[8] On November 15, 2017, Couch was charged with burglary, a Level 4 felony. 2 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 th e remaining charges of theft and residential entry. Otherwise, t he 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 | Memorandu m Decision 18A

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[9] Af ter 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 petiti on 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 max imum 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 inde pendent appellate review and revision of this
sentenc ing 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 analysi s 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 | Memorandu m Decision 18A

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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 shou ld 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 ag reements [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
appro priateness thus turns on ‘myriad. . .factors that come to light in a givenCourt of Appeals of Indiana | Memorandu m Decision 18A

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case. ’ ” Id. (quoting Cardwel l 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 bac kpack 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 se ntence 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 o f 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 | Memorandu m Decision 18A

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Furth ermore, Couch, unlike Frye, knew his victims and wished to enga ge 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, burglar ies , and an auto theft. Three of those charges we re waived into adult
court. His adult criminal history consists of multiple convictions of burglar y , a conviction of theft, and a felony conviction of possessi o n of a dangerous device

o r material by a prisoner. Couch’s continued pattern of committing cri mes 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 disavow ed a ny current issues with substance abuse in his
pre - sentence investigation report , h e 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 sent ence analysis, our Supreme Court noted Frye’s lifelong strugg le 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 transgres sions 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 | Memorandu m Decision 18A

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[19] In contrast, Couch , although under the influence of illegal substances, made the decision to break into his ex

- g irlfriend’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 he r daughter’s enjoyment . Many of the items tak en illustrat e 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 i nappropriate 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.