MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Mar 15 2019, 10:22 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
Donald R. Shuler                                         Curtis T. Hill, Jr.
Goshen, Indiana                                          Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cody N. Garman,                                          March 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1275
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff.                                      Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-1705-MR-004



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019                   Page 1 of 16
                                              Case Summary

[1]   Cody Garman appeals his sentence for involuntary manslaughter, a Level 5

      felony. We affirm in part, reverse in part, and remand.


                                                     Issues

[2]   Garman raises two issues, which we restate as follows:


              I.      Whether the trial court erred in failing to award Garman
                      good time credit.


              II.     Whether Garman’s sentence is inappropriate.


                                                     Facts

[3]   On May 25, 2017, Garman posted a Craigslist advertisement under the “casual

      encounters” section of the website seeking sexual acts in Elkhart County, where

      Garman lived. David Swartley responded to Garman’s Craigslist

      advertisement that night between 1:00 a.m. and 1:40 a.m. After Garman and

      Swartley exchanged messages, they agreed to meet. Swartley arrived at

      Garman’s house at approximately 3:00 a.m. Garman left the house and got in

      Swartley’s vehicle in the passenger seat.


[4]   Swartley drove his vehicle around the back of Garman’s house because

      Garman lived with his family, and Garman did not want them to see him with

      Swartley. Garman and Swartley engaged in various sexual acts. Garman

      claimed Swartley also made several other comments and attempted to perform




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 2 of 16
      other sexual acts on Garman, which Garman told Swartley he did not want to

      do.


[5]   At some point during the interaction in the backseat, Garman testified that he

      felt Swartley drip liquid from a “vial” into Garman’s nose. Tr. Vol. IV p. 112.

      Garman stated that he did not “pass all the way out,” but that he “faded out.”

      Id. When Garman “woke up,” Swartley was on top of him, and Garman

      “freaked out,” “kicked [Swartley] away,” and struck Swartley in the face with

      his fist. Id. Garman then got in the front seat of Swartley’s vehicle and drove

      away with Swartley still in the back seat. Garman found a small pathway in the

      woods and left Swartley’s vehicle there. Garman heard Swartley call for help as

      Garman fled the scene on foot.


[6]   Later that morning, at approximately 8:20 a.m., a person who lived in the area

      noticed the parked vehicle and called police. Corporal Andrew Ahlersmeyer

      with the Elkhart County Sheriff’s Department responded to the call and found

      the vehicle in the woods in the 24000 block of Ne Ce Dah Drive in Elkhart.

      When Corporal Ahlersmeyer approached the vehicle in the woods, he noticed a

      shirtless male, later identified as Swartley, in the backseat of the vehicle, and

      positioned in an “unusual” way. Tr. Vol. II p. 83. At the time Corporal

      Ahlersmeyer approached the vehicle, Swartley appeared to be alive. Corporal

      Ahlersmeyer called an ambulance to the scene. Emergency personnel, who

      arrived at the scene, were not immediately able to find keys to the vehicle, and

      Garman later told detectives that he had thrown the keys to the vehicle in the

      wooded area.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 3 of 16
[7]   Once medics got Swartley into the ambulance, he “postured,” 1 in a way that

      was indicative of a head injury. Garman’s beating of Swartley resulted in a

      subdural hematoma, a kick bruise to Swartley’s shoulder, a laceration to the top

      of Swartley’s head, bruises to both sides of Swartley’s face, three lacerations to

      different areas of Swartley’s mouth, a lacerated ear, broken cartilage, extensive

      bruising to Swartley’s head, serious trauma, neck contusions, and critical brain

      trauma. Swartley’s delayed treatment due to Garman secreting Swartley’s car

      and abandoning Swartley exacerbated Swartley’s injuries. Swartley’s death was

      declared a homicide as a result of “multiple injuries” from blunt force trauma

      and abandonment after this beating. 2 Tr. Vol. III p. 144.


[8]   Subsequently, Garman was charged with murder. The jury trial commenced on

      March 19, 2018. During the trial, Garman contacted his friend, Regina Uribe,

      and asked Uribe to contact jurors outside of the court proceedings and give the

      jury information regarding Swartley. Specifically, Garman wanted Uribe to tell

      a member of the jury that she knew someone whom Swartley had allegedly

      raped. There is no indication in the record that Swartley was ever convicted of

      rape. Additionally, Garman asked Uribe to encourage Garman’s grandmother

      to make the same allegation. On the phone call, Garman advised Uribe that



      1
       When a patient “postures,” he or she “tense[s] up, and [his or her] arms will draw into the core of [his or
      her] body. It’s called decorticate posturing, and what that indicates is that there is . . . an injury between the
      pathway from the brain to the spinal cord.” Tr. Vol. II p. 136.
      2
       Doctors believed Swartley had “intracranial bleeding,” which is bleeding inside the skull, as well as “a
      hemorrhage to the brain stem, which is actually bleeding inside the brain stem itself.” Tr. Vol. II pp. 190-91.
      Ultimately, doctors did not believe that Swartley was “amenable to any surgery[,]” and that, in fact, surgery
      would be “fruitless.” Id. at 194.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019                        Page 4 of 16
       the jury would likely send Garman home that day if Uribe was to communicate

       that message to the jury.


[9]    The State published the audio recording of Garman’s call from the Elkhart

       County Jail to Uribe during Garman’s trial. Garman testified in his own

       defense. On cross-examination, when asked about the call, Garman indicated

       that he wanted the jury to “know the truth” about Swartley. 3 Tr. Vol. IV p.

       186. No evidence, however, was ever located that Uribe or Garman’s

       grandmother ever contacted a juror. The jury convicted Garman of involuntary

       manslaughter, a Level 5 felony, as a lesser included offense of murder.


[10]   Garman was sentenced on April 19, 2018. The trial court found as mitigating

       factors: Garman’s statements of remorse at his sentencing hearing, including

       statements expressed by Garman’s attorney; Garman’s youthful age of twenty-

       three; and Garman’s low risk to reoffend by the IRAS score.


[11]   The trial court found as aggravating factors: Garman’s prior criminal history;

       Garman’s previous probation violation for testing positive for cocaine;

       Garman’s drug and alcohol use, which the trial court indicated showed “a

       disdain and a disregard for the law.” Appellant’s App. Vol. II p. 163. Also the

       trial court found that Garman’s other sanctions did not result in rehabilitation




       3
         Garman testified that, during the discovery process, he learned things about Swartley, and he wanted the
       jury to have a full picture of the victim. Specifically, it appears Garman wanted the jury to know about
       certain Craigslist advertisements Swartley had posted under “casual encounters,” which Garman’s attorney
       classified as “horrific requests.” Tr. Vol. IV p. 120. These Craigslist advertisements were not admitted as
       evidence during the trial.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019                  Page 5 of 16
       of Garman and that Garman “has not taken advantage of programming and

       alternative sanctions offered to him in the past[.]” Id. The trial court also

       considered as aggravating factors the victim’s age of sixty-six; “[t]he harm,

       injury, loss or damages was significant and greater than the elements of the

       crime in that Swartley was “beaten to death and left to die[.]” Id. Garman was

       in a position to help Swartley, but left Swartley to die. Furthermore, Garman

       planned and recruited a friend to tamper with the jury, which Garman

       admitted. The trial court also considered Garman’s disturbing statement in his

       pre-sentence investigation report that Garman was “not happy or sad about [the

       offense]. I’m kind of sad someone ended up dying [for my] actions.”

       Appellant’s App. Vol. II p. 190. The trial court noted Garman showed no

       remorse for his actions in making this statement. Finally, the trial court

       considered that Garman drove Swartley’s car to a secluded area to hide his

       crime, making it virtually impossible for anyone to render assistance to

       Swartley. 4


[12]   The trial court awarded Garman credit for time served, but declined to grant

       Garman good time credit. The trial court sentenced Garman to six years by

       enhancing the three-year advisory sentence by three additional years based on

       the aggravators. Garman now appeals his sentence.




       4
        Although not explicitly stated as an aggravating factor, Garman also conducted internet searches in an
       attempt to learn how to remove his DNA from certain objects. Garman also searched an obituary website for
       “Tradell Lesure,” which was the name that appeared to be connected to Swartley, at 9:46 p.m. on May 25,
       2017. Tr. Vol. IV p. 44. Swartley was not declared dead until after 10:00 p.m. on May 25, 2017.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019               Page 6 of 16
                                                    Analysis

[13]   Garman appeals his sentence in two different respects. First, Garman argues

       that he was improperly deprived of good time credit. Second, Garman argues

       that his sentence was inappropriate in light of the nature of the offense and

       Garman’s character.


                                              I.       Good Time Credit

[14]   Garman first argues that he was deprived of good time credit. At the

       sentencing hearing, the trial court engaged in the following colloquy with

       Garman:


               THE COURT:         Let’s talk about credit time in Indiana. You
               understand that now you must serve three days in jail to get one
               day of good time credit?


               [GARMAN]:                Yes, sir.


               THE COURT:               Have you discussed that with your attorney,
               Mr. Britton?


               [GARMAN]:                Yes, sir.


               THE COURT:           Do you have any questions about good time
               credit law in the state of Indiana?


               [GARMAN]:                No, sir.


       Sent. Tr. pp. 3-4. Later at sentencing, the trial court concluded:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 7 of 16
               Court gives you credit – and listen closely, Mr. Garman. Court
               gives you credit for 328 days of actual jail time, but the Court
               declines to award you any good time credit. While you were
               incarcerated, you attempted to tamper with my jury, and you
               admitted it on the stand. And there is no way on God’s green
               earth I am giving you good time credit for that behavior. . . .


       Id. at 42.


[15]   To determine whether Garman was entitled to good time credit and whether

       Garman was erroneously deprived of his good time credit, we must review the

       statutes at issue. “Matters of statutory interpretation, which inherently present

       a pure question of law, are reviewed de novo.” Shepard v. State, 84 N.E.3d 1171,

       1172 (Ind. 2017) (citing Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016))

       (emphasis supplied).


[16]   Garman claims that, “as he was not a credit restricted felon and was awaiting

       trial for a crime other than a Level 6 felony or misdemeanor, [he] would be

       assigned to Class B for credit time purposes.” Appellant’s Br. p. 9.

       Accordingly, Garman argues, that pursuant to Indiana Code Section 35-50-6-

       3.1(c), as a Class B offender, he was entitled to one day of good time credit for

       every three days he spent in jail awaiting trial.


[17]   Pursuant to Indiana Code Section 35-50-6-3.1(c), a Class B offender earns “one

       (1) day of good time credit for every three (3) days the person is imprisoned for

       a crime or confined awaiting trial or sentencing.” The State does not appear to

       disagree that Garman was a Class B offender, but instead argues that the

       revocation of Garman’s good time credit was statutorily permitted according to
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 8 of 16
       Indiana Code Section 35-50-6-5(a)(2), which states that a person may “be

       deprived of any part of the education credit or good time credit the person has

       earned. . .” if the person violates “one (1) or more rules of the penal facility in

       which the person is imprisoned.” Specifically, the State argues that Garman’s

       attempt to tamper with the jury constitutes obstruction of justice. Accordingly,

       the State argues, because Garman did not follow the law, he presumably broke

       a rule of the Elkhart County Jail, where Garman was housed, and the trial

       court acted within its statutory authority to deprive Garman of good time

       credit.


[18]   Garman argues that he was not granted a hearing or other procedural

       safeguards, such as written notice, prior to his denial of good time credit in

       violation of Indiana Code Sections 35-50-6-5(b) and 35-50-6-4(f). The State

       responds that, “[a]lthough the trial court did not conduct a separate hearing,

       Garman received due process. While he was represented by counsel, he was

       able to cross-examine the witness, testify on his own behalf, and certainly had

       the opportunity to call any additional witnesses he wanted[.]” Appellee’s Br. p.

       12.


[19]   Indiana Code Section 35-50-6-5(b) states:


                 Before a person may be deprived of educational credit or good
                 time credit, the person must be granted a hearing to determine
                 the person’s guilt or innocence and, if found guilty, whether
                 deprivation of earned educational credit or good time credit is an
                 appropriate disciplinary action for the violation. In connection
                 with the hearing, the person is entitled to the procedural

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 9 of 16
         safeguards listed in section 4(c) of this chapter. The person may
         waive the person’s right to the hearing. 5


Indiana Code Section 35-50-6-4(f) states, with regard to procedural safeguards,

that:


         In connection with the hearing granted under subsection (d) or
         (e), the person is entitled to:


                (1) have not less than twenty-four (24) hours advance
         written notice of the date, time, and place of the hearing, and of
         the alleged misconduct and the rule the alleged misconduct is
         alleged to have violated;


                  (2) have reasonable time to prepare for the hearing;


                  (3) have an impartial decisionmaker;


                  (4) appear and speak in the person’s own behalf;


                  (5) call witnesses and present evidence;


               (6) confront and cross-examine each witness, unless the
         hearing authority finds that to do so would subject a witness to a
         substantial risk of harm;




5
 Section 4(c) states: “A person who is a credit restricted felon and who is imprisoned for a crime or
imprisoned awaiting trial or sentencing is initially assigned to Class C. A credit restricted felon may not be
assigned to Class A or Class B.”

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019                     Page 10 of 16
                     (7) have the assistance of a lay advocate (the department
               may require that the advocate be an employee of, or a fellow
               prisoner in, the same facility or program);


                     (8) have a written statement of the findings of fact, the
               evidence relied upon, and the reasons for the action taken;


                     (9) have immunity if the person’s testimony or any
               evidence derived from the person's testimony is used in any
               criminal proceedings; and


                       (10) have the person’s record expunged of any reference to
               the charge if the person is found not guilty or if a finding of guilt
               is later overturned.


[20]   Indiana Code Section 35-50-6-4(d), referenced above, states that, “A person

       who is not a credit restricted felon may be reassigned to Class C or Class D if

       the person violates any of the following: . . . (2) A rule of the penal facility in

       which the person is imprisoned.” Indiana Code Section 35-50-6-4(e),

       referenced above, includes similar language, but applies to persons who are

       credit restricted felons. Still, under both sections: “Before a person may be

       reassigned to a lower credit time class, the person must be granted a hearing to

       determine the person’s guilt or innocence and, if found guilty, whether

       reassignment is an appropriate disciplinary action for the violation.” I.C. § 35-

       50-6-4(d); see also I.C. § 35-50-6-4(e).


[21]   Garman’s argument requires us to consider two separate issues: (1) whether the

       deprivation of Garman’s good time credit was for a statutorily permitted

       purpose; and (2) whether the trial court’s failure to have a hearing regarding
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 11 of 16
       Garman’s good time credit was error. Here, we find the answer to the second

       question is dispositive. The record is unclear whether the trial court intended to

       maintain Garman’s Class B offender status and simply take away Garman’s

       good time credit, or if the trial court was changing Garman’s Class B status to

       Class D status. In either scenario a hearing is required, thus, the answer to this

       question does not change the outcome here.


[22]   In revoking Garman’s good time credit, the trial court expressly noted that

       Garman was guilty of the offense of attempted jury tampering, which was

       proved by Garman’s testimony at trial and the audio recording of the phone call

       between Garman and Uribe played at the trial. While we can assume that this

       was a violation of the penal facility’s rules, this fact has not been established.

       See Tumbleson v. State, 706 N.E.2d 217, 218 (Ind. Ct. App. 1999) (finding that:

       “By statute, Tumbleson was entitled to one day credit time for each actual day

       served barring proof at a hearing of a violation of the rules of the facility in

       which he was incarcerated”); see also Murphy v. State, 930 N.E.2d 630, 633 (Ind.

       Ct. App. 2010) (remanding for a hearing on whether the trial court should have

       granted educational credit time because “the issue of whether Murphy

       demonstrated a pattern consistent with rehabilitation was never addressed”),

       opinion adopted by Murphy v. State, 942 N.E.2d 818 (Ind. 2011). We believe

       Garman was entitled to a hearing on this issue pursuant to the statute.


[23]   While we do agree with the State that Garman did have the opportunity to call

       witnesses related to this issue at his trial, Garman’s testimony on his attempted

       jury tampering was limited by the trial court. Specifically, the trial court did not

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 12 of 16
       allow Garman to testify as to the details of the attempted jury tampering in

       front of the jury because doing so would reveal information that had been

       excluded pursuant to an earlier trial court ruling. Garman was also not given

       the opportunity to address the issue of deprivation of his good time credit at his

       sentencing hearing. Accordingly, Garman was not given the opportunity to

       fully address his behavior and to be heard on whether restriction of his good

       time credit was an appropriate response to his attempted jury tampering. See

       e.g., Tumbleson, 706 N.E.2d at 218.


[24]   Based on the plain reading of the statute, Garman was not given an appropriate

       hearing. Accordingly, we reverse and remand to the trial court for a hearing on

       whether Garman should be deprived of good time credit.


                                          II.     Inappropriate Sentencing

[25]   Garman next contends that his sentence was inappropriate in light of the nature

       of the offense and Garman’s character. Indiana Appellate Rule 7(B) provides

       that this court 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.” The defendant bears the burden to persuade this court that his or her

       sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App.

       2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


[26]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 13 of 16
       v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see

       whether the defendant’s sentence is appropriate or “if another sentence might

       be more appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008)).


[27]   We look to the statutory ranges established for the classification of the offense.

       Garman was found guilty of involuntary manslaughter, a Level 5 felony, as a

       lesser included offense of murder. The sentence for a Level 5 felony ranges

       from one year to six years, with an advisory sentence of three years. Ind. Code

       § 35-50-2-6. Garman was sentenced to six years.


[28]   We first review the nature of Garman’s offense. Garman killed Swartley after a

       sexual encounter between the men. Garman kicked and beat Swartley, who

       was significantly older and weighed approximately eighty pounds less than

       Garman. After realizing that he injured Swartley, Garman drove Swartley’s

       vehicle into a wooded area, hid the vehicle, and left Swartley to die, despite

       Swartley’s calls for help. Although Garman was charged with murder, a jury

       convicted Garman of involuntary manslaughter, a Level 5 felony.


[29]   Next, we consider Garman’s character. Garman’s criminal history, although

       not extensive, does not reflect well on Garman’s character. Garman’s juvenile

       criminal history includes: a warning and release for a crime that would be, if

       committed by an adult, criminal trespass; a referral to a juvenile program for a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 14 of 16
       crime that would be, if committed by an adult, battery, a Class B misdemeanor;

       and an adjudication as a delinquent for a crime that would be, if committed by

       an adult, knowingly or intentionally operating a motor vehicle without ever

       receiving a license, a Class C misdemeanor. Garman’s adult criminal history

       includes a conviction for operating a vehicle while intoxicated, a Class A

       misdemeanor in addition to the instant offense. Garman also previously

       violated the terms of his probation by testing positive for cocaine.


[30]   Garman’s jury tampering also does not reflect well upon his character. Garman

       recruited Uribe to tamper with the jury in hopes to influence the outcome of the

       trial. Garman also requested Uribe to ask Garman’s grandmother to do the

       same. Finally, Garman’s lack of remorse also does not reflect well upon his

       character. While Garman indicated at sentencing that he was remorseful, for

       purposes of the pre-sentence investigation report, when asked if he was

       remorseful, Garman answered, “I’m not happy or sad about it. I’m kind of sad

       someone ended up dying for my actions.” Appellant’s App. Vol. II p. 139.

       Garman’s indifference to Swartley’s death, due to Garman’s actions, reflects

       poorly on Garman’s character.


[31]   While Garman received the maximum sentence for his conviction, his sentence

       was not inappropriate. The trial court listed numerous aggravators and after

       weighing the aggravators against the mitigators, the trial court determined that

       a six-year sentence was appropriate. We do not disagree.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 15 of 16
                                                  Conclusion

[32]   Garman’s sentence was not inappropriate in light of the nature of the offense

       and Garman’s character. The trial court, however, committed error by

       depriving Garman of his good time credit without a proper hearing.

       Accordingly, we affirm in part, reverse in part, and remand for a hearing on

       Garman’s deprivation of good time credit.


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


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1275 | March 15, 2019   Page 16 of 16
