MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Aug 08 2019, 7:24 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
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Appellate Division                                       Attorney General
Office of the Public Defender
Crown Point, Indiana                                     Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

John Richard Kochopolous,                                August 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3158
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G04-1609-F5-93



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019                 Page 1 of 9
                                             Case Summary
[1]   Following a bench trial, John Richard Kochopolous appeals his eight-and-one-

      half-year sentence for level 5 felony operating a motor vehicle after forfeiture of

      license for life, level 6 felony operating a vehicle while intoxicated resulting in

      serious bodily injury, and level 6 felony leaving the scene of an accident

      resulting in serious bodily injury. Kochopolous asserts that the trial court erred

      by finding “derivative” aggravators and by considering his lack of remorse as an

      aggravating circumstance. Kochopolous contends, and the State agrees, that his

      level 6 felony convictions violate double jeopardy principles. We find no

      reversible error in the trial court’s finding of aggravators, but we reverse and

      remand with instructions to reduce Kochopolous’s conviction for level 6 felony

      leaving the scene of an accident resulting in serious bodily injury to a class B

      misdemeanor and for resentencing on that count.


                                 Facts and Procedural History

[2]   On September 24, 2016, Daniel Ridder and Michael Shelton were in Hammond

      with a group of friends to attend a sporting event at the Hammond Civic

      Center. While crossing the street on a crosswalk, Ridder and Shelton were

      struck by a silver minivan, which left the scene. Witnesses described the

      incident to police who, less than ten minutes later, pulled over a silver minivan

      that had a smashed-in windscreen that contained at least one victim’s blood and

      hair. Kochopolous was the sole occupant of the vehicle when police pulled him

      over, approximately four blocks from his home. He exhibited several signs of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019   Page 2 of 9
      intoxication and admitted to police that he had at least a few beers that night

      before driving. Investigators determined that Kochopolous was driving while

      intoxicated at approximately twice the legal limit.


[3]   The State charged Kochopolous with level 5 felony operating a motor vehicle

      after forfeiture of license for life, level 6 felony operating a vehicle while

      intoxicated resulting in serious bodily injury, level 6 felony leaving the scene of

      an accident resulting in serious bodily injury to Ridder, and class A

      misdemeanor leaving the scene of an accident resulting in bodily injury to

      Shelton. At his bench trial, Kochopolous testified that his next-door neighbor

      was driving his vehicle at the time of the accident and that he was the

      passenger. Kochopolous testified that only after his neighbor drove to another

      location and exited the vehicle, did he begin to drive the damaged minivan

      home when police stopped him.


[4]   The trial court found Kochopolous guilty as charged. At sentencing, the trial

      court found Kochopolous’s poor health and alcoholism as mitigators, and

      found fourteen aggravators, including Kochopolous’s criminal history, his

      inability to obey the law, that he is a danger to community, and his lack of

      remorse. The trial court found that the aggravators “substantially” outweighed

      the mitigators. Tr. Vol. 4 at 170. The trial court merged the class A

      misdemeanor conviction with the level 6 felony leaving the scene of an accident

      with serious bodily injury conviction. The trial court then sentenced

      Kochopolous to six years for the level 5 felony conviction, to be served

      consecutive to concurrent two-and-one-half-year sentences on the level 6 felony

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019   Page 3 of 9
      convictions, for an aggregate sentence of eight and one-half years, all executed.

      This appeal followed.


                                     Discussion and Decision

        Section 1 – The trial court did not commit reversible error in
                     finding aggravating circumstances.
[5]   Kochopolous contends that the trial court erred by finding several “derivative”

      aggravating circumstances and by finding his lack of remorse as an aggravator.

      “Generally speaking, sentencing decisions are left to the sound discretion of the

      trial court, and we review the trial court’s decision only for an abuse of this

      discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied

      (2016). “An abuse of discretion occurs if the 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.” Anglemeyer v. State,

      868 N.E.2d 482, 490 (Ind. 2007) (quotation marks omitted), clarified on reh’g,

      875 N.E.2d 218. The finding of aggravating and mitigating circumstances rests

      within the trial court’s discretion. Newsome v. State, 797 N.E.2d 293, 301 (Ind.

      Ct. App. 2003), trans. denied (2004). A trial court may abuse its discretion where

      it includes findings of aggravating and mitigating factors in its sentencing

      statement that are not supported by the record, or that are based on reasons that

      are improper as a matter of law. Anglemeyer, 868 N.E.2d at 490-91.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019   Page 4 of 9
           1.1 - The trial court did not abuse its discretion in finding “derivative”
                                  aggravating circumstances.

[6]   At the sentencing hearing, the trial court listed as an aggravator Kochopolous’s

      multiple alcohol-related convictions. The trial court also listed as aggravators

      his inability to obey the drink-drive laws of Indiana and that he is a danger to

      the community because he is unable to address his alcoholism. Citing Morgan v.

      State, 829 N.E.2d 12, 17 (Ind. 2005), and Neff v. State, 849 N.E.2d 556, 560 (Ind.

      2006), Kochopolous claims that these findings are “derivative” of his alcohol-

      related criminal history, and that they cannot serve as separate aggravating

      circumstances. Appellant’s Br. at 11.


[7]   Both Morgan and Neff, however, were decided under Indiana’s prior

      presumptive sentencing scheme; as such, Kochopolous’s claim of error is

      unavailable because he was sentenced under the current advisory sentencing

      scheme. McMahon v. State, 856 N.E.2d 743, 751 n.8 (Ind. Ct. App. 2006).

      Consequently, we find no abuse of discretion.


          1.2 - The trial court abused its discretion in finding Kochopolous’s lack of
                   remorse to be an aggravator, but this error is harmless.

[8]   Next, Kochopolous contends that the trial court abused its discretion in finding

      his lack of remorse as an aggravator. Kochopolous claims that he “simply

      asserted his innocence,” and that the trial court “impermissibly penalized him

      for disputing his guilt.” Hollen v. State, 740 N.E.2d 149, 158 (Ind. Ct. App.

      1999), opinion adopted by 761 N.E.2d 398 (Ind. 2002). After a review of the



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019   Page 5 of 9
       record, we believe that the trial court has improperly equated Kochopolous’s

       maintenance of innocence with a lack of remorse.


[9]    A trial court may consider a defendant’s lack of remorse as an aggravator,

       which typically manifests where a defendant displays “disdain or recalcitrance.”

       Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014). “This is distinguished

       from the right to maintain one’s innocence . . . .” Id. As such, a trial court may

       not consider lack of remorse as an aggravator where a defendant “consistently

       maintain[s] his innocence if [done] so in good faith.” Id. This court has

       addressed the difficult issue involving the denial of guilt being applied as an

       aggravator multiple times. See, e.g., Sloan, 16 N.E.3d 1018; Kien v. State, 782

       N.E.2d 398 (Ind. Ct. App. 2003), trans. denied; Cox v. State, 780 N.E.2d 1150

       (Ind. Ct. App. 2002); Hollen, 740 N.E.2d 149; Bluck v. State, 716 N.E.2d 507

       (Ind. Ct. App. 1999).


[10]   While a defendant has an absolute right to maintain his innocence throughout

       all criminal proceedings, lack of remorse may still be regarded as an aggravator.

       Bluck, 716 N.E.2d at 513. However, “[t]his court held that even though there

       was corroborating evidence of the defendant’s guilt, it did not necessarily follow

       that the defense was maintained in bad faith and therefore subjected the

       defendant to an enhanced sentence.” Kien, 782 N.E.2d at 412 (citing Hollen, 740

       N.E.2d at 159). Indeed, to do so would endorse the proposition that any time a

       defendant maintained his innocence and lost, he would be subjected to an

       enhanced sentence. Sloan, 16 N.E.2d at 1028. As was the case in Kien and

       Hollen, we are faced with a defendant who has maintained his innocence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019   Page 6 of 9
       throughout all criminal proceedings where there was corroborating evidence as

       to his guilt.


[11]   Throughout the proceedings, Kochopolous has claimed that he was not the

       driver when his minivan struck the two victims, even though he admitted to

       having drunk alcohol and then driving at some point after the collision. While a

       number of people witnessed Kochopolous’s silver minivan strike the two

       victims, no witnesses and no direct evidence could place Kochopolous as the

       driver of the minivan at the time of the accident. There is plenty of

       circumstantial and physical evidence that points to Kochopolous’s guilt, but “it

       is not so overwhelmingly condemning that we can say that [he] maintained his

       innocence in bad faith.” Kien, 782 N.E.2d at 413.


[12]   And while Kochopolous did not express any sorrow, concern, or remorse for

       the victims, “[t]here is no indication in the record that [Kochopolous’s]

       assertion of his innocence under these circumstances was in bad faith or

       amounted to disdain or recalcitrance.” Hollen, 740 N.E.2d at 159 (emphasis

       added). As such, the trial court abused its discretion in finding Kochopolous’s

       lack of remorse to be an aggravator.


[13]   However, “[a] single aggravating circumstance may be sufficient to enhance a

       sentence. When a trial court improperly applies an aggravator, but other valid

       aggravating circumstances exist, a sentence enhancement may still be upheld.”

       Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v.

       State, 716 N.E.2d 1273, 1278 (Ind. 1999)), trans. denied (2017). Given that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019   Page 7 of 9
       numerous other valid aggravators exist, and stand unchallenged, we find no

       need to remand for resentencing. Anglemeyer, 868 N.E.2d at 491.


           Section 2 – Kochopolous’s two level 6 felony convictions
                       violate double jeopardy principles.
[14]   Kochopolous contends that his double jeopardy rights were violated when the

       trial court entered judgment of conviction and sentenced him for level 6 felony

       driving while intoxicated resulting in serious bodily injury and level 6 felony

       leaving the scene of an accident resulting in serious bodily injury because they

       are based on the same bodily injury. See, e.g., Owens v State, 897 N.E.2d 537,

       539 (Ind. Ct. App. 2008) (holding that defendant’s convictions and sentences

       for murder and robbery resulting in serious bodily injury violated double

       jeopardy principles because they were based on the same bodily injury). The

       State properly concedes that both convictions cannot remain level 6 felonies.


[15]   A reviewing court may remedy a double jeopardy violation by reducing either

       conviction to a less serious form of the same offense, if it will eliminate the

       violation, or by vacating one of the offending convictions. Moala v. State, 969

       N.E.2d 1061, 1065 (Ind. Ct. App. 2015). “The reviewing court will make this

       determination itself, being mindful of the penal consequences that the trial court

       found appropriate.” D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App. 2017)

       (quotation marks omitted). Here, reducing the level 6 felony conviction for

       leaving the scene of an accident resulting in serious bodily injury to class B

       misdemeanor leaving the scene of an accident will eliminate the double

       jeopardy violation. This also leaves intact the trial court’s aggregate sentence of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3158 | August 8, 2019   Page 8 of 9
       eight and one-half years. We therefore reverse and remand with instructions to

       reduce the level 6 felony to a class B misdemeanor and for resentencing on that

       count. The trial court need not hold a sentencing hearing on remand.


[16]   Affirmed in part, reversed in part, and remanded.


       Bradford, J., and Tavitas, J., concur.




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