MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Feb 16 2016, 6:08 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David M. Payne                                           Gregory F. Zoeller
Ryan & Payne                                             Attorney General of Indiana
Marion, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph F. Cotter,                                        February 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A05-1506-CR-647
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D01-1504-F6-125



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-647 | February 16, 2016   Page 1 of 6
[1]   Following his plea of guilty to Theft1 as a Level 6 felony, Joseph F. Cotter was

      sentenced to two years and three months executed in the Department of

      Correction. Cotter now appeals, contending that his sentence is inappropriate

      pursuant to Indiana Appellate Rule 7(B).


[2]   We affirm.


                                       Facts & Procedural History


[3]   On March 14, 2015, Cotter approached seventy-five-year-old Cyann Scott at

      her home and offered to perform yard work for her. After Cotter did some

      work, she invited him inside for coffee. The two spoke for a while, and Scott

      invited Cotter to come back the next day to attend church with her.


[4]   When Cotter returned the next day, Scott again invited him inside. He entered

      Scott’s kitchen and saw that she had a prescription bottle of hydrocodone pills

      on the counter. When Scott briefly left Cotter alone in the kitchen, Cotter

      dumped the pills from the bottle into his pocket. Cotter then accompanied

      Scott to church, and Scott dropped Cotter off at his home afterwards. Scott did

      not notice that the pills were missing until later that day.


[5]   As a result of these events, the State charged Cotter with theft, and the offense

      was elevated from a class A misdemeanor to a Level 6 felony due to a prior

      theft conviction. On June 1, 2015, Cotter, acting pro se, pled guilty without the




      1
          Ind. Code § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-647 | February 16, 2016   Page 2 of 6
      benefit of a plea agreement. The same day, the trial court sentenced Cotter to

      two years and three months executed in the Department of Correction. Cotter

      now appeals.


                                             Discussion & Decision


[6]   Cotter contends that his sentence is inappropriate in light of the nature of his

      offense and his character.2 Article 7, section 4 of the Indiana Constitution

      grants our Supreme Court the power to review and revise criminal sentences.

      See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S.Ct. 978

      (2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this

      court to perform the same task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). Per App. R. 7(B), we may revise a sentence “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.” Inman v.

      State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentence review

      under Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State,



      2
        Cotter also argues that a number of mitigating circumstances, none of which Cotter advanced for
      consideration at his sentencing hearing, were supported by the evidence. We are unconvinced that these
      mitigators are supported by the record, and in any event, they are waived. See Hollin v. State, 877 N.E.2d 462,
      465 (Ind. 2007) (explaining that a defendant is precluded from advancing mitigating circumstances for the
      first time on appeal). We reject Cotter’s argument that he should be afforded latitude in this respect because
      he proceeded pro se at trial. See Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004) (explaining that
      “[p]ro se litigants without legal training are held to the same standard as trained counsel and are required to
      follow procedural rules”), trans. denied. To the extent Cotter argues that his waiver of his right to counsel was
      invalid, this argument is not available to him on direct appeal following a guilty plea. See Alvey v. State, 911
      N.E.2d 1248, 1249 (Ind. 2009) (explaining that a defendant may not challenge his conviction following a
      guilty plea on direct appeal); M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind. Ct. App. 1997) (explaining the
      “general rule a criminal defendant is prohibited from challenging the validity of a guilty plea by direct
      appeal”).

      Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-647 | February 16, 2016              Page 3 of 6
      972 N.E.2d 864, 876 (Ind. 2012). Cotter bears the burden on appeal of

      persuading us that his sentence is inappropriate. See id.


[7]   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

      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) (quoting Cardwell, 895

      N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

      leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

      not our goal in this endeavor to achieve the perceived “correct” sentence in

      each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

      Appellate Rule 7(B) is 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. Ct. App. 2008) (emphasis in original).


[8]   In order to assess the appropriateness of a sentence, we first look to the

      statutory range established for the classification of the relevant offense. The

      advisory sentence for a Level 6 felony is one year, with a minimum and

      maximum of six months and two and one-half years, respectively. Ind. Code §

      35-50-2-7. Cotter received a sentence three months short of the statutory

      maximum.


[9]   Considering the nature of the offense, we note that Scott, who is elderly and

      uses a walker, allowed Cotter to do yard work for her, invited him into her

      home, and brought him to church with her. Cotter repaid Scott’s kindness by


      Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-647 | February 16, 2016   Page 4 of 6
       stealing the medication she needed to alleviate pain she suffers as a result of her

       medical conditions. Because the medication is a controlled substance, Scott

       had difficulty having it replaced, and ultimately had to do without it for two

       weeks. We are unimpressed by Cotter’s claim, based solely on his own self-

       serving testimony, that the severity of the crime is lessened because he ingested

       the pills instead of committing an additional crime by selling them. We also

       find distasteful Cotter’s suggestion that Scott somehow contributed to the

       offense by keeping her medication in a location accessible to him.


[10]   Turning now to the character of the offender, we note that at thirty years old,

       Cotter has already amassed four felony convictions; in addition to the instant

       theft conviction, Cotter has been convicted of auto theft, burglary, and another

       theft. Moreover, Cotter has previously violated his probation and been

       dismissed from a drug court program. To the extent Cotter argues that his drug

       addiction mitigates his culpability, we note that Cotter has been aware of his

       substance abuse problem for years and he has not sought out or actively

       participated in treatment. See Caraway v. State, 959 N.E.2d 847, 852 (Ind. Ct.

       App. 2011) (holding that substance abuse may be considered an aggravating

       circumstance where the defendant is aware of his addiction and does not seek

       treatment), trans. denied. Indeed, Cotter testified that he was terminated from

       drug court because he “gave up.” Transcript at 27.                  We find nothing in the

       record to support Cotter’s assertion that he is unlikely to reoffend. To the

       contrary, Cotter’s ongoing drug abuse suggests to us that Cotter remains at a




       Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-647 | February 16, 2016   Page 5 of 6
       very high risk to reoffend. For all of these reasons, we readily conclude that

       Cotter’s sentence was not inappropriate.


[11]   We affirm.


[12]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1506-CR-647 | February 16, 2016   Page 6 of 6
