MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Feb 21 2018, 9:16 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
Susan D. Rayl                                            Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                               Attorney General of Indiana
Indianapolis, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Cooley,                                           February 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1709-CR-2032
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Peggy Hart, Judge
Appellee-Plaintiff.                                      Pro Tem
                                                         Trial Court Cause No.
                                                         49G05-1605-F4-20232



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018            Page 1 of 7
[1]   Justin Cooley appeals his sentence for burglary as a level 4 felony. He raises

      one issue which we revise and restate as whether his sentence is inappropriate

      in light of the nature of the offense and the character of the offender. We

      affirm.


                                      Facts and Procedural History

[2]   In May 2016, Tanya Pender resided in an apartment with her twenty-two-year-

      old daughter who was eight months pregnant. Pender had been previously

      introduced to Cooley because he knew the father of her daughter’s baby.

      Pender had also previously seen Cooley with Lakita Richardson who lived in

      the area.


[3]   On May 17, 2016, Pender and her daughter left the apartment around 8:00 a.m.

      Pender saw Cooley standing outside when she came out the side door. When

      she returned to her apartment less than an hour later, she discovered that her

      television, Xbox, games, controllers, and movies as well as a bottle containing

      some change and a blanket were gone. She also noticed that the window to her

      apartment was open farther than when she left, realized she had been robbed,

      and called the police. After the police arrived, video surveillance from the

      apartment complex was retrieved, and Pender identified Cooley on the video.

      Subsequent to the incident, Pender had multiple encounters with Cooley in

      which he threatened her life.


[4]   On May 25, 2016, the State charged Cooley with burglary as a level 4 felony

      and theft as a level 6 felony. On July 27, 2017, the court held a jury trial. Prior


      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018   Page 2 of 7
      to trial, the prosecutor offered that, if Cooley pled guilty to burglary, the State

      would agree to cap his total sentence at nine years and any executed portion at

      seven years. Cooley’s counsel stated that the offer had not significantly

      changed and that “[t]he offer before was a cap of same 9 year term, cap of 6 on

      executed term.” Transcript Volume II at 6. The prosecutor stated: “I’ll give

      you that 6, I’ll go back to the original cap of 6 years executed. I normally don’t

      do day of trial change, but in fairness . . . .” Id. After some discussion, Cooley

      rejected the offer.


[5]   Pender testified, identified Cooley on the video surveillance from the apartment

      complex, and stated that Cooley disappeared from sight on the video at the

      location of her daughter’s window. She identified Cooley’s girlfriend on the

      video exiting a car and running. She also identified Cooley exiting her

      apartment building on the video with her Xbox and controls “and everything

      else.” Id. at 81. She also testified that she received some of her stolen property

      back. Pender testified that she had multiple encounters with Cooley after May

      17, 2016, and stated:


              Every time I come out my door off of 34th Street he would
              threaten my life. Told me on God, he would shoot my house up.
              On Haughville he will shoot me up. On God, I would have to
              move. This is every time somebody walk down the street and
              I’m coming outside I seen him more after the burglary than I did
              before the burglary. Every time I come out my apartment
              somebody walking down the street, he would say, hey bro she a
              police ass b----, don’t talk to her. She called the police on me. I
              should beat your mother f----- ass right now. And I guess the
              reason he didn’t do it is because he knew cameras had actually

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018   Page 3 of 7
              worked. So every time I got --- after a while I got tired of being --
              - I started calling Detective Dunn because I don’t have no
              weapons to protect me and my pregnant daughter at that time.
              So every time he came and threatened me I made sure I left a
              message with Detective Dunn, and I told him something has to
              be done. Because I am tired of him threatening me and my
              child’s life.


      Id. at 86-87. She also testified that she moved out of the county because of the

      threats. The jury found Cooley guilty of burglary as a level 4 felony and theft as

      a class A misdemeanor.


[6]   On August 8, 2017, the court held a sentencing hearing. The prosecutor asked

      the court to sentence Cooley to eleven years. Cooley’s counsel asked for the

      advisory sentence of six years and for the court to consider alternative

      placement. Cooley stated:


              My heart goes out to anybody that is a victim of any crime. I just
              want to be there for my child, my first child. I feel like I’m
              obligated to be there. I know I made some mistakes in my life.
              I’m willing to step up to anything I did, but I also ask the Court
              to take it into consideration, my own child, please.


      Transcript Volume III at 20. The court found no mitigators and found Cooley’s

      delinquent activity and history of criminal behavior as aggravators. It merged

      the conviction for theft as a class A misdemeanor and sentenced Cooley to eight

      years for burglary as a level 4 felony. The court also noted that Cooley could

      petition the court for a change of placement after he served six years.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018   Page 4 of 7
                                                  Discussion

[7]   The issue is whether Cooley’s sentence is inappropriate in light of the nature of

      the offense and his character. Ind. Appellate Rule 7(B) 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.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

      sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[8]   Cooley argues there was nothing exceptional about the circumstances

      surrounding the burglary that would make it more or less egregious than any

      other burglary. With respect to his character, he asserts that his partner and co-

      defendant, Richardson, was due to have his first child on October 24, 2017, and

      that his earliest possible release date would be March 17, 2023, when his son

      will be five years old. He also argues that he testified at the sentencing hearing

      that “he was motivated to change his behavior due to the upcoming birth of his

      son and the responsibility it entails.” Appellant’s Brief at 11. He contends that

      “[i]t would appear that the motivation for this crime may have been due to

      financial difficulties.” Id. He also asserts that the State offered a sentence of six

      years executed in its plea offer on the morning of trial and that that sentence

      would seem to be sufficient a month later on the day of sentencing.


[9]   The State points out that Cooley threatened Pender because she reported the

      crime to the police. It argues that Cooley’s poor character supports his sentence

      and that he had been provided multiple opportunities to reform his behavior. It
      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018   Page 5 of 7
       also contends that we should decline to find his sentence inappropriate based

       upon Cooley’s argument that the sentence initially offered by the State was less

       than the sentence he received and he failed to make a specific showing that his

       sentence was improperly influenced by his exercise of his right to a jury trial.


[10]   Ind. Code § 35-50-2-5.5 provides that a person who commits a level 4 felony

       shall be imprisoned for a fixed term of between two and twelve years, with the

       advisory sentence being six years.


[11]   Our review of the nature of the offense reveals that Cooley entered Pender’s

       apartment and took a television, Xbox, games, controllers, movies, a bottle

       containing some change, and a blanket. Subsequent to the incident, Pender had

       multiple encounters with Cooley in which he threatened her life, and she

       moved out of the county because of the threats.


[12]   Our review of the character of the offender reveals that as a juvenile Cooley was

       alleged to have committed disorderly conduct in 2003 and 2004. In 2005, he

       was alleged to have committed battery resulting in bodily injury, criminal

       trespass, and resisting law enforcement, and these allegations were dismissed.

       In 2006, allegations that Cooley had committed auto theft and criminal trespass

       were found true. In 2007, an allegation that Cooley committed unauthorized

       entry of a motor vehicle was found true. In 2008, allegations of auto theft,

       criminal trespass, theft, and two allegations of child molesting were dismissed,

       and an allegation of committing auto theft was found true. As an adult, Cooley

       was convicted of auto theft as a class D felony in 2008. In 2009, he was


       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018   Page 6 of 7
       convicted of carjacking as a class B felony, robbery resulting in bodily injury as

       a class B felony, and theft as a class D felony under separate cause numbers.


[13]   The presentence investigation report (“PSI”) indicates that Cooley was

       employed at the time of his arrest and had been previously employed in 2015

       and 2016. He rated his financial situation as poor, but indicated that he did not

       worry about meeting basic needs. The PSI states that Cooley’s overall risk

       assessment score using the Indiana Risk Assessment System places him in the

       high risk to reoffend category.


[14]   After due consideration, we conclude that Cooley has not sustained his burden

       of establishing that his eight-year sentence is inappropriate in light of the nature

       of the offense and his character.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Cooley’s sentence.


[16]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2032 | February 18, 2018   Page 7 of 7
