MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                             Apr 22 2019, 8:09 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                      Curtis T. Hill, Jr.
Jeffersonville, Indiana                                   Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher D. McCoy,                                     April 22, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2809
        v.                                                Appeal from the Clark Circuit
                                                          Court
State of Indiana,                                         The Honorable Andrew Adams,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          10C01-1505-FA-5



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019                    Page 1 of 7
[1]   Christopher D. McCoy pled guilty, pursuant to a plea agreement, to two counts

      of child molesting, one as a Class C felony (Count II) and one as a Level 4

      felony (Count IV). This is McCoy’s third appeal of his sentence, as the last two

      appeals resulted in remands for resentencing. See McCoy v. State, 96 N.E.3d 95

      (Ind. Ct. App. 2018) (McCoy I) and McCoy v. State, No. 18A-CR-1022 (Ind. Ct.

      App. Sept. 19, 2018) (McCoy II). Following the most recent remand, the trial

      court ordered consecutive, executed sentences of eight years on Count II and

      twelve years on Count IV, with four of those years served on community

      corrections. In this appeal, McCoy argues that his twenty-year sentence is

      inappropriate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   McCoy II set out the following facts:


              Toward the end of 2013, McCoy began molesting S.M., his ten-
              year-old adopted daughter. He fondled S.M.’s vagina and made
              her “clean” his penis in the shower by masturbating it until he
              ejaculated. At least twice McCoy partially penetrated S.M.’s
              vagina, once with his penis and another time with an item
              described as “blue rubber with several connected circles.” He
              also touched the exterior of her vagina with a vibrator. These
              and other acts continued through January of 2015.


              The State charged McCoy … with four counts of child molesting,
              two committed before July 1, 2014 and two committed after June
              30, 2014: Count I, a Class A felony; Count II, a Class C felony;
              Count III, a Level 1 felony; and Count IV, a Level 4 felony. In

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019   Page 2 of 7
              January of 2017, McCoy entered into an open plea agreement in
              which he agreed to plead guilty to Count II … and Count IV …,
              and, in exchange, the State agreed to dismiss Counts I and III.


              The trial court imposed an eight-year sentence on [Count II] and
              a twelve-year sentence on [Count IV] with four years to be served
              on Community Corrections. On direct review, we found that the
              trial court erroneously classified McCoy as a credit restricted
              felon and relied on two invalid aggravating factors. We also
              found that the sentencing order did not clearly state whether
              McCoy was to serve the sentences concurrently or consecutively
              and what, if any, mitigating factors were found by the trial court.
              We remanded for resentencing.


              When resentencing McCoy, the trial court correctly observed that
              the sentencing range for a Class C felony is between two and
              eight years and that the sentencing range for a Level 4 felony is
              between two and twelve years. However, moments later, the
              trial court appeared to transpose those ranges when it imposed a
              twelve-year sentence on the Class C felony and an eight-year
              sentence on the Level 4 felony.


      McCoy II, slip op. at 2-4 (citations omitted). This apparent transposition of

      sentences resulted in an illegal sentence for Count II, the Class C felony.

      Accordingly, in McCoy II, we reversed and remanded for resentencing and

      expressly noted, “the trial court may simply revert to its original sentence as to

      the length of each individual sentence or impose other sentences on each count

      so long as those sentences lie within statutory parameters.” Id. at 5.


[4]   On November 19, 2018, the trial court held a hearing and resentenced McCoy

      to eight years on Count II and twelve years on Count IV to be served


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019   Page 3 of 7
      consecutively, with the last four years served on community corrections.

      McCoy now appeals from his twenty-year aggregate sentence, claiming that the

      sentence is inappropriate.


                                          Discussion & Decision


[5]   Pursuant to Ind. Appellate Rule 7(B), we “may revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, the Court finds

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender.” Our Supreme Court has explained that our principal

      role should be to attempt to leaven the outliers, “not to achieve a perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). “‘[W]e must and should exercise deference to a trial court’s sentencing

      decision, both because Rule 7(B) requires us to give ‘due consideration’ to that

      decision and because we understand and recognize the unique perspective a

      trial court brings to its sentencing decisions.’” Rogers v. State, 878 N.E.2d 269,

      275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.

      App. 2007)), trans. denied. “Such deference should prevail unless overcome by

      compelling evidence portraying in a positive light the nature of the offense (such

      as accompanied by restraint, regard, and lack of brutality) and the defendant’s

      character (such as substantial virtuous traits or persistent examples of good

      character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[6]   The determination of whether we regard a sentence as inappropriate “turns on

      our sense of the culpability of the defendant, the severity of the crime, the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019   Page 4 of 7
      damage done to others, and myriad other factors that come to light in a given

      case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013). “The question under

      App. R. 7(B) is ‘not whether another sentence is more appropriate’ but rather

      ‘whether the sentence imposed is inappropriate.’” Miller v. State, 105 N.E.3d

      194, 196 (Ind. Ct. App. 2018) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.

      Ct. App. 2008)). McCoy bears the burden of persuading us that his sentence is

      inappropriate. See id.


[7]   Here, the trial court imposed maximum sentences and ordered them to be

      served consecutively for an aggregate sentence of twenty years, with four years

      served on community corrections. See Ind. Code § 35-50-2-5.5 (sentencing

      range for a Level 4 felony is two to twelve years, with an advisory sentence of

      six years); I.C. § 35-5-2-6(a) (sentencing range for a Class C felony is two to

      eight years, with an advisory sentence of four years). McCoy argues that this

      sentence is inappropriate in light of the nature of the offenses and his character.


[8]   With respect to the nature of his offenses, McCoy asserts that he was convicted

      of “inappropriately touching or fondling” his daughter, which “is not the

      worst” of child molest offenses. Appellant’s Brief at 8. The record, however,

      establishes that McCoy’s abuse of his daughter progressed well beyond

      touching and fondling. 1 Beginning when S.M. was ten years old, McCoy began




      1
        By pleading guilty, McCoy avoided the risk of being convicted of his two most serious charges, Class A
      felony and Level 1 Felony child molesting. Although these two counts were dismissed as the result of the
      plea agreement, we may still consider the full nature and circumstances of McCoy’s crimes against his

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019                   Page 5 of 7
      molesting her and then continued doing so for over a year until S.M. reported

      the abuse to her mother. In addition to fondling S.M.’s vagina, he would make

      her masturbate him in the shower and shave his pubic hair. He also engaged in

      oral sex with S.M. On at least two occasions, McCoy attempted to have sexual

      intercourse with S.M., partially penetrating her vagina with his penis and

      causing her pain. Other times, he used a vibrator on the outside of S.M.’s

      vagina and penetrated her vagina with anal beads, stopping only when she said

      it hurt. Many of these acts occurred while S.M.’s younger siblings were in the

      home. The nature of McCoy’s ongoing molestation of his daughter was

      particularly egregious and warranted a lengthy sentence.


[9]   Turning to his character, McCoy generally asserts that he had no prior criminal

      record, was found likely to respond well to probation and unlikely to reoffend,

      was employed full-time prior to his incarceration, and pled guilty. We have

      already held that McCoy’s guilty plea was not mitigating, as it came more than

      eighteen months after he was charged and afforded him the enormous benefit of

      the dismissal a Class A felony charge and Level 1 felony charge. McCoy I, 96

      N.E.3d at 99. Moreover, McCoy’s lack of prior criminal record seems rather

      inconsequential given the fact that he sexually molested his daughter repeatedly

      over a lengthy period of time. We find this ongoing abuse and serious violation




      daughter. See Bethea, 983 N.E.2d at 1145 (unless the plea agreement provides otherwise, “it is not necessary
      for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019                    Page 6 of 7
       of his position of trust much more telling of his character than his ability to hold

       a job and refrain from other illegal activity.


[10]   Given the nature of McCoy’s offenses and his character, an aggregate sentence

       of twenty-years, with four of those years served on community corrections, is

       not inappropriate. Thus, we affirm McCoy’s sentence.


[11]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2809 | April 22, 2019   Page 7 of 7
