MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Sep 19 2018, 9:56 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             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
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Clark County Public Defender’s Office                    Attorney General of Indiana
Jeffersonville, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher D. McCoy,                                    September 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1022
        v.                                               Appeal from the
                                                         Clark Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Andrew Adams, Judge
                                                         Trial Court Cause No.
                                                         10C01-1505-FA-5



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1022 | September 19, 2018               Page 1 of 5
[1]   Christopher D. McCoy (“McCoy”) appeals from the trial court’s order on the

      resentencing ordered by this court in McCoy v. State, 96 N.E.3d 95 (Ind. Ct.

      App. 2018). In its new sentencing order, the trial court sentenced McCoy to

      twelve years for Class C felony child molesting and eight years for Level 4

      felony child molesting.1 McCoy raises two issues for our review, of which we

      find the following dispositive: whether his twelve-year sentence for Class C

      felony child molesting is illegal. We reverse and remand for resentencing.


                                   Facts and Procedural History
[2]   Toward the end of 2013, McCoy began molesting S.M., his ten-year-old

      adopted daughter. He fondled S.M.’s vagina and made her “clean” his penis in

      the shower by masturbating it until he ejaculated. Appellant’s App. Vol. II at 5-7.

      At least twice McCoy partially penetrated S.M.’s vagina, once with his penis

      and another time with an item described as “blue rubber with several connected

      circles.” Id. He also touched the exterior of her vagina with a vibrator. Id.

      These and other acts continued through January of 2015.


[3]   The State charged McCoy under Indiana Code section 35-42-4-3 with four

      counts of child molesting, two committed before July 1, 2014 and two

      committed after June 30, 2014: Count I, a Class A felony; Count II, a Class C




      1
        See Ind. Code § 35-42-4-3(b). We note that both of these counts of child molesting were charged under
      Indiana Code section 35-42-4-3(b). The classifications of these charges are different, however, because the
      Class C felony was committed prior to July 1, 2014 and the Level 4 felony was committed after June 30,
      2014, a date when a new version of the criminal statute was enacted, which changed the classifications of
      crimes to levels rather than classes.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1022 | September 19, 2018                 Page 2 of 5
      felony; Count III, a Level 1 felony; and Count IV, a Level 4 felony. McCoy v.

      State, 96 N.E.3d 95, 97 (Ind. Ct. App. 2018); Appellant’s App. Vol. II at 3. In

      January of 2017, McCoy entered into an open plea agreement in which he

      agreed to plead guilty to Count II, Class C felony child molesting and Count

      IV, Level 4 felony child molesting, and, in exchange, the State agreed to dismiss

      Counts I and III. Appellant’s App. Vol. III at 19-22.


[4]   The trial court imposed an eight-year sentence on the Class C felony and a

      twelve-year sentence on the Level 4 felony with four years to be served on

      Community Corrections. Appellant’s App. Vol. II at 125, 130, 187; McCoy, 96

      N.E.3d at 98. On direct review, we found that the trial court erroneously

      classified McCoy as a credit restricted felon and relied on two invalid

      aggravating factors. We also found that the sentencing order did not clearly

      state whether McCoy was to serve the sentences concurrently or consecutively

      and what, if any, mitigating factors were found by the trial court. We

      remanded for resentencing. See McCoy, 96 N.E.3d at 99, 100-02.


[5]   When resentencing McCoy, the trial court correctly observed that the

      sentencing range for a Class C felony is between two and eight years and that

      the sentencing range for a Level 4 felony is between two and twelve years. Tr.

      Vol. II at 11. However, moments later, the trial court appeared to transpose




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1022 | September 19, 2018   Page 3 of 5
      those ranges when it imposed a twelve-year sentence on the Class C felony and

      an eight-year sentence on the Level 4 felony. Id. at 12.2


                                      Discussion and Decision
[6]   McCoy argues that his twelve-year sentence for Class C felony child molesting

      is illegal and should be reversed. The State agrees that the sentence is illegal but

      asks us to remand the case to let the trial court clarify whether it inadvertently

      transposed the sentences for Count II and Count IV, or whether it intended to

      revise both sentences from the original sentencing order.

[7]   A trial court may impose any sentence authorized by statute and the Indiana

      Constitution. Ind. Code § 35-38-1-7.1(d). Although a sentencing judge holds

      broad discretion, he or she must act within statutorily prescribed limits. Dillman

      v. State, 16 N.E.3d 445, 448 (Ind. Ct. App. 2014). A sentence contrary to the

      penalty mandated by statute is illegal. Id.; compare Poore v. State, 613 N.E.2d

      478, 480 (Ind. Ct. App. 1993) (a facially defective sentence is one that violates

      express statutory authority).

[8]   We acknowledge that the trial court here may have intended to impose the

      same sentence it ordered the first time but simply transposed the sentences.

      Nonetheless, the twelve-year sentence it imposed for the Class C felony is




            2
             The trial court also ordered consecutive sentences and, as it had done at the first sentencing
            hearing, it allowed McCoy to serve his final four years on Community Corrections. Id. at 12;
            Appellant’s App. Vol. III at 19, 72).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1022 | September 19, 2018                 Page 4 of 5
       outside the statutorily prescribed range, which is two to eight years. See Ind.

       Code § 35-50-2-6(a). Thus, the sentence is illegal.

[9]    McCoy asks this court to “reverse” the sentence without specifying a term of

       years, other than to suggest that we could revise the sentence to eight years in

       accord with the trial court’s apparent desire to impose the maximum sentence.

       McCoy urges this court to resist the State’s request for a full resentencing

       because he challenges only the Class C felony sentence. However, such a

       limitation would undermine the trial court’s ability to craft an aggregate

       sentence in accord with its determination about McCoy’s culpability and the

       severity of his offenses. Therefore, under these circumstances, a “trial court

       [has] flexibility upon remand, including the ability to increase sentences for

       individual convictions without giving rise to a presumption of vindictive

       sentencing, so long as the aggregate sentence is no longer than originally

       imposed.” Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013), trans.

       denied. This flexibility recognizes that “a trial court is likely to view individual

       sentences in a multi-count proceeding as part of an overall plan, a plan that can

       be overthrown if one or more of the convictions is reversed or reduced in

       degree.” See id. Therefore, the trial court may simply revert to its original

       sentence as to the length of each individual sentence or impose other sentences

       on each count so long as those sentences lie within statutory parameters.


[10]   Reversed and remanded with instructions.


       Vaidik, C.J., and Riley, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1022 | September 19, 2018   Page 5 of 5
