MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                     Oct 11 2018, 9:19 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     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
Benjamin Loheide                                         Curtis T. Hill, Jr.
Law Office of Benjamin Loheide                           Attorney General
Columbus, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William C. Cox,                                          October 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-956
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable James D. Worton,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         03D01-1711-F6-6542
                                                         03D01-1705-F4-2745



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-956 | October 11, 2018              Page 1 of 7
                                             Case Summary
[1]   William C. Cox appeals the eight-and-a-half-year aggregate sentence imposed

      by the trial court following his guilty plea to level 5 felony carrying a handgun

      without a license and level 6 felony unlawful possession of a syringe. He

      contends that his sentence is inappropriate in light of the nature of the offenses

      and his character. Concluding that he has not met his burden to demonstrate

      that his sentence is inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On May 14, 2017, Cox stole a purse from Sasha Penrose’s residence that

      contained a pink .380 handgun and two cell phones. After reporting the

      property as stolen, Penrose posted information about the theft on Facebook.

      Later that day, Cox offered to sell that handgun to another individual and

      arranged to meet that individual at a gas station. He sent pictures to the

      individual, one of himself holding Penrose’s handgun to his head, and another

      with a .380 bullet clenched between his teeth. That individual, Jesse Bridges,

      saw Penrose’s Facebook post and contacted her to tell her that Cox had

      arranged to sell her handgun to him. Penrose called the police and informed

      them about Cox’s plan to meet Bridges to sell the gun.


[3]   Police arrived at the gas station and located Cox inside. He was wearing the

      same clothing as he was in the picture of himself holding Penrose’s gun. He

      denied having the stolen gun or the other stolen property. However, officers




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-956 | October 11, 2018   Page 2 of 7
      located the gun inside the store hidden behind bags of potato chips. Cox also

      had Penrose’s two cell phones as well as three .380 cartridges on his person.


[4]   On May 16, 2017, the State charged Cox with level 4 felony unlawful

      possession of a firearm by a serious violent felon, level 6 felony theft of a

      firearm, class A misdemeanor theft, and class A misdemeanor unlawful

      possession of a firearm by a domestic batterer. Cox was incarcerated in the

      Bartholomew County Jail and released on August 7, 2017, pending trial. Cox

      was arrested on other charges and released multiple times in October 2017.

      Then, on November 3, 2017, an officer observed Cox on the street, and after

      running a warrant search on him, discovered that Cox had four outstanding

      warrants for his arrest. After taking Cox into custody, the officer located a

      syringe in the pocket of Cox’s shorts. The officer also located an identification

      card and a debit card belonging to two other individuals. Upon contacting

      those individuals, the officer was advised that Cox had taken those items

      without permission. Thereafter, the State charged Cox with level 6 felony

      unlawful possession of a syringe and level 6 felony theft with a prior conviction

      for theft or conversion.


[5]   On February 9, 2018, pursuant to a written agreement, Cox pled guilty to a

      reduced charge of level 5 felony carrying a handgun without a license and level

      6 felony unlawful possession of a syringe. In exchange, the State dismissed the

      multitude of other charges and agreed not to seek a habitual offender

      enhancement. Sentencing was left to the trial court’s discretion.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-956 | October 11, 2018   Page 3 of 7
[6]   While incarcerated awaiting sentencing, Cox committed multiple jail

      violations, including battery and flooding or attempting to flood a cellblock.

      His sentencing hearing was held on March 21, 2018. The trial court concluded

      that numerous aggravating factors outweighed the mitigating factors and

      sentenced Cox to the maximum sentences of six years for the level 5 felony and

      two and a half years for the level 6 felony. The court ordered the sentences to

      be served consecutively for an aggregate sentence of eight and a half years. This

      appeal ensued.


                                     Discussion and Decision
[7]   Cox claims that his sentence is inappropriate and invites this Court to reduce it

      pursuant to Indiana Appellate Rule 7(B), which 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.” The defendant bears the burden to

      persuade this Court that his or her sentence is inappropriate. Childress v. State,

      848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible sentencing scheme

      allows trial courts to tailor an appropriate sentence to the circumstances

      presented, and the trial court’s judgment “should receive considerable

      deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal

      role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.

      Whether we regard a sentence as inappropriate at the end of the day turns on

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

      damage done to others, and myriad other facts that come to light in a given

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-956 | October 11, 2018   Page 4 of 7
      case.” Id. at 1224. In conducting our review, the question “is not whether

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

      sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.

      Ct. App. 2007).


[8]   Regarding the nature of the offense, the advisory sentence is the starting point

      that the legislature has selected as an appropriate sentence for the crime

      committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

      for a level 5 felony is between one and six years with the advisory sentence

      being three years. Ind. Code § 35-50-2-6. The sentencing range for a level 6

      felony is between six months and two and one-half years, with the advisory

      sentence being one year. Ind. Code § 35-50-2-7. The trial court here imposed

      the maximum sentence on each felony and ordered those sentences served

      consecutively, for an aggregate sentence of eight and a half years. Cox thinks

      that the trial court’s imposition of maximum consecutive sentences for his

      felonies was inappropriately harsh because both the crimes he pleaded guilty to

      were merely “acts of possession[,]” so he cannot be one of the worst offenders.

      Appellant’s Br. at 9; see Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App.

      2013) (noting that maximum possible sentences are generally reserved for the

      worst offenders). We wholeheartedly disagree.


[9]   As for his offense of carrying a handgun without a license, a charge that was

      reduced from level 4 felony unlawful possession of a firearm by a serious

      violent felon, Cox did not simply possess a handgun that he was not licensed to

      carry. Rather, he stole the handgun from a residence and then attempted to sell

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-956 | October 11, 2018   Page 5 of 7
       it, along with ammunition, to a convicted felon. He also hid the handgun

       inside a gas station so that he would not be caught with it. As for unlawful

       possession of a syringe, even after the syringe was found in his pocket, Cox

       continued to deny that it was his, claiming that he was wearing shorts that

       belonged to somebody else. He also had stolen items in his possession at the

       time. We agree with the State that Cox’s conduct in the commission of his

       offenses far surpassed the conduct necessary to simply prove his offenses.


[10]   Regardless, Cox’s poor character more than justifies the imposition of

       maximum consecutive sentences. We note that the character of the offender is

       found in what we learn of the offender’s life and conduct. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in that assessment is a review

       of an offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.

       App. 2015), trans. denied (2016); see also Rutherford v. State, 866 N.E.2d 867, 874

       (Ind. Ct. App. 2007) (noting that in addition to convictions, “it is appropriate to

       consider” a defendant’s arrest record “as a poor reflection” on his character,

       because “it may reveal that he ... has not been deterred even after having been

       subjected to the police authority of the State”). As the trial court observed,

       Cox’s criminal history is “absolutely atrocious.” Tr. Vol. 2 at 31. As a

       juvenile, Cox was arrested at least thirteen times and adjudicated a delinquent

       for class D felony theft, leaving home without permission, truancy, and class D

       felony sexual battery. His adult criminal history involves more than thirty

       arrests and numerous felony and misdemeanor convictions, including class B

       felony burglary, class D felony criminal confinement, class D felony stalking,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-956 | October 11, 2018   Page 6 of 7
       and multiple convictions for class D felony intimidation. Additionally, Cox has

       violated probation several times, was on probation when he committed the

       current level 5 felony, and had four warrants out for his arrest when he

       committed the current level 6 felony. Obviously, prior grants of leniency have

       been all for naught. Moreover, Cox’s conduct in jail while awaiting sentencing

       here was awful. Cox’s argument that he is not deserving of maximum

       consecutive sentences because he is not the “worst of the worst” is unavailing.

       Appellant’s Br. at 11. Cox has not met his burden to demonstrate that his

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

       Accordingly, we affirm.


[11]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-956 | October 11, 2018   Page 7 of 7
