MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               May 23 2019, 11:50 am

court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Leanna Weissman                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                   Attorney General of Indiana

                                                        Robert A. Rowlett
                                                        Angela Sanchez
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jonathan S. Couch,                                      May 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2753
        v.                                              Appeal from the Switzerland
                                                        Circuit Court
State of Indiana,                                       The Honorable W. Gregory Coy,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        78C01-1711-F4-418



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019                     Page 1 of 9
                                     Statement of the Case
[1]   After his plea agreement was accepted by the trial court, Jonathan S. Couch

      appeals from the trial court’s order sentencing him to nine years executed in the

      Indiana Department of Correction (DOC). He argues that his sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender and requests that we resentence him to no more than two years

      incarcerated. We affirm.


                                                    Issue
[2]   Couch presents the following question for our review: Is the nine-year sentence

      inappropriate in light of the nature of the offense and the character of the

      offender?


                               Facts and Procedural History
[3]   On October 12, 2017, at approximately 2:00 a.m., Couch and his cousin were

      taking Klonopin or Xanax and smoking methamphetamine. Sometime

      between 4:30 and 5:00 a.m., Couch, who was by then alone, went to his ex-

      girlfriend’s house and pushed in the back door. He had purchased a pit bull

      when he was still in a relationship with her. However, he left the dog he had

      named Felony with her when they separated so her daughter could continue to

      enjoy the pet. That morning he decided he wanted to reclaim the dog. In the

      process of collecting the dog, he also removed three televisions, a BB gun, and a




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019   Page 2 of 9
                1
      CPAP machine worth $8,000.00 from the house along with other items,

      including a backpack containing books belonging to his ex-girlfriend’s daughter.


[4]   When Couch’s ex-girlfriend arrived home later in the day on October 12, 2017,

      it was immediately apparent to her that her home had been “gone through” and

      that many of her possessions were missing. Appellant’s App. Vol. II, p. 18.

      She contacted the Switzerland County Sheriff’s Department and reported that

      items belonging to her were stolen from her home.


[5]   When officers arrived to investigate the report, they asked Couch’s ex-girlfriend

      if she knew of any possible suspects. She suggested Couch, who had lived with

      her until November 2016. During the investigation, a neighbor reported seeing

      a Dodge Dakota at the front of the residence. Later, officers learned that

      Couch’s brother owned a vehicle matching that description.


[6]   Officers contacted Couch and went to his residence. Upon arriving, an officer

      observed Felony through the window of the house while that officer was

      waiting outside. When Couch came to answer the door, the officer asked him if

      he knew anything about a pit bull stolen from his ex-girlfriend’s home. Couch,

      interrupting the officer, volunteered that someone, whose name he did not

      know, had dropped the dog off at his residence. The officer told Couch that he

      believed he was lying and demanded that the dog and stolen televisions be

      returned. Couch told the officer he would retrieve the stolen items. He



      1
          CPAP is the acronym commonly used for continuous positive airway pressure machines.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019              Page 3 of 9
      returned with two of the missing televisions and the pit bull, but he did not

      remember taking any of the other items reported missing.


[7]   An officer from the Switzerland County Sheriff’s Department interviewed

      Couch on October 16, 2017, after administering his advice of rights. Couch

      admitted that he used his brother’s Dodge Dakota on October 11, 2017. He

      and his cousin smoked some methamphetamine and took a pill (either

      Klonopin or Xanax). Couch described going to his ex-girlfriend’s house for the

      primary purpose of reclaiming the dog. He said he would be able to find the

      third television he had taken and would return it. As for the other items

      reported missing, Couch stated that he just “took stupid shit that made no

      sense,” and further stated that “he was pissed and wanted to burn the place to

      the ground.” Id. at 20. When the officer asked about the location of other

      items that were taken, Couch explained that “he was on drugs and basically

      woke up the next morning not really knowing what he did.” Id.

                                                                                           2
[8]   On November 15, 2017, Couch was charged with burglary, a Level 4 felony.

      On September 14, 2019, Couch agreed to plead guilty to the burglary charge,

      and the State agreed to cap the maximum sentence at nine years and to dismiss

      the remaining charges of theft and residential entry. Otherwise, the parties

      agreed to leave sentencing open to the discretion of the trial court.




      2
          Ind. Code § 35-43-2-1(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019   Page 4 of 9
[9]    After accepting the parties’ plea agreement, the trial court sentenced Couch to

       nine years executed in the DOC with credit for 333 actual days served, and no

       restitution was ordered at that time. The trial court advised that should Couch

       continue to exhibit good behavior like he had in jail while incarcerated in the

       DOC, the trial court would consider a petition for a sentence modification.

       Couch now appeals.


                                    Discussion and Decision
[10]   Couch claims that the trial court’s sentence is inappropriate in light of the

       nature of the offense and the character of the offender. The plea agreement

       provided that Couch’s maximum sentence exposure was capped at nine years.

       However, the trial court retained the discretion to fashion and impose a

       sentence within that cap.


[11]   “Even when a trial court imposes a sentence within its discretion, the Indiana

       Constitution authorizes independent appellate review and revision of this

       sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019) (citing

       Ind. Const. art. 7, §§ 4, 6; Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016)).

       “Indiana appellate courts may revise a sentence if ‘after due consideration of

       the trial court’s decision’ they find ‘the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.’” Id. (quoting Ind.

       Appellate Rule 7(B)). We emphasize that this analysis is limited to “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.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019   Page 5 of 9
       Ct. App. 2008) (citing Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App.

       2007)). The defendant bears the burden of persuading the appellate court that

       “his or her sentence has met this inappropriateness standard of review.”

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


[12]   The sentencing range for burglary is imprisonment for a fixed term of between

       two years and twelve years with the advisory sentence being six years. Ind.

       Code §35-50-2-5.5 (2014). Couch’s sentence was capped at nine years which is

       below the statutory maximum sentence, yet slightly above the advisory

       sentence.


[13]   In Justice Dickson’s concurring opinion in Childress he expressed his opinion

       that “[a] defendant’s conscious choice to enter a plea agreement that limits the

       trial court’s discretion to a sentence less than the statutory maximum should

       usually be understood as strong and persuasive evidence of sentence

       reasonableness and appropriateness.” 848 N.E.2d at 1081. He further stated

       that, in his opinion, “courts considering future claims for appellate sentence

       review following such plea agreements [are permitted] to grant relief only in the

       most rare, exceptional cases.” Id.


[14]   As our Supreme Court said later, “[w]hile we apply our power under Rule 7(B)

       sparingly, we may revise sentences, ‘when certain broad conditions are

       satisfied.’” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017) (quoting Rice v. State,

       6 N.E.3d 940, 947 (Ind. 2014)). The Court further stated that “[s]entence

       appropriateness thus turns on ‘myriad. . .factors that come to light in a given


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019   Page 6 of 9
       case.’” Id. (quoting Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “We

       begin this analysis with ‘substantial deference to the trial court’s sentence’ then

       ‘independently examine’ the defendant’s offenses and character.” Id. (quoting

       Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015)).


[15]   “The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation.” Perry v. State, 78

       N.E.3d 1, 13 (Ind. Ct. App. 2017). Couch, who was under the influence of

       methamphetamine and a pill or pills, stole property from his ex-girlfriend. That

       property was worth approximately $10,000 and included televisions, a pit bull,

       and an $8,000 CPAP machine. He also stole his ex-girlfriend’s daughter’s

       backpack containing many things including books.


[16]   Couch’s case is different from that of Frye v. State, 837 N.E.2d 1012 (Ind. 2005),

       cited by him in support of a sentence reduction. In Frye, our Supreme Court

       reduced a defendant’s forty-year sentence for his burglary conviction and

       habitual offender adjudication, finding that as respects the nature of the offense

       (1) there was a marginal pecuniary loss of property ($395), (2) the home was

       unoccupied, (3) the defendant was unarmed, and (4) most of the items were

       returned to the victim after the defendant’s arrest. Additionally, there is no

       evidence in that opinion that Frye knew his victim. Couch, on the other hand,

       took items valued at approximately $10,000.00. Although there is evidence that

       Couch returned some of the items taken, the record is unclear whether some of

       the more expensive items, such as the $8,000.00 CPAP machine, were returned.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019   Page 7 of 9
       Furthermore, Couch, unlike Frye, knew his victims and wished to engage in

       vengeful behavior against them.


[17]   As for Couch’s character, we note, and he acknowledges, his extensive juvenile

       history and adult criminal history. Couch’s juvenile history consists of thefts,

       burglaries, and an auto theft. Three of those charges were waived into adult

       court. His adult criminal history consists of multiple convictions of burglary, a

       conviction of theft, and a felony conviction of possession of a dangerous device

       or material by a prisoner. Couch’s continued pattern of committing crimes

       demonstrates his refusal to reform to a law-abiding life. Of note, he has at least

       100 conduct violations during his prior periods of incarceration and has one

       parole violation.


[18]   Even though Couch disavowed any current issues with substance abuse in his

       pre-sentence investigation report, he argues on appeal that his substance abuse

       and addiction are similar to those factors our Supreme Court discussed in Frye

       when reducing a sentence. In its review of Frye’s character under the

       inappropriate sentence analysis, our Supreme Court noted Frye’s lifelong

       struggle with alcoholism and unsuccessful treatment for such. The Court stated

       as follows:


               While we do not condone Frye’s past or current violations of the
               law, we cannot conclude that those transgressions even when
               aggregated demonstrate a character of such recalcitrance or
               depravity to justify a sentence of 40 years.


       837 N.E.2d at 1015.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019   Page 8 of 9
[19]   In contrast, Couch, although under the influence of illegal substances, made the

       decision to break into his ex-girlfriend’s house and take intimate items he knew

       about from his previous relationship with her. He took her medical device (the

       CPAP machine), her daughter’s backpack filled with books, and a pet dog he

       had left for her daughter’s enjoyment. Many of the items taken illustrate the

       vengeful nature of the criminal activity. Indeed, Couch admitted “he was

       pissed and wanted to burn the place to the ground.” Appellant’s App. Vol. II,

       p. 20.


[20]   Couch has not met his burden of persuading us that his sentence is

       inappropriate in light of the nature of the offense or the character of the

       offender.


                                                Conclusion
[21]   Based upon the foregoing, we affirm the trial court’s sentencing decision.


[22]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2753 | May 23, 2019   Page 9 of 9
