MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                       Dec 23 2015, 9:34 am

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
Mark Leeman                                              Gregory F. Zoeller
Leeman Law Offices                                       Attorney General of Indiana
Logansport, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerremy Buren Cofield,                                  December 23, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        09A02-1505-CR-432
        v.                                              Appeal from the Cass Circuit
                                                        Court
State of Indiana,                                       The Honorable Leo T. Burns,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        09C01-1406-FC-27




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015        Page 1 of 8
[1]   Jerremy Buren Cofield appeals his sentence for two counts of child molesting as

      class C felonies. Cofield raises two issues which we revise and restate as

      whether the trial court abused its discretion in ordering that he serve his

      sentences for two counts of child molesting as class C felonies consecutive to

      each other.1 We affirm.


                                       Facts and Procedural History

[2]   Between January 1, 2013 and December 31, 2013, Cofield touched L.H.’s penis

      and W.R.’s penis. L.H. was born in October 2007, and W.R. was born in

      December 2001. On June 25, 2014, the State charged Cofield with: Count I,

      child molesting as a class C felony for fondling W.R.’s penis; and Count II,

      child molesting as a class C felony for fondling L.H.’s penis. The State and

      Cofield entered into a plea agreement pursuant to which Cofield agreed to

      plead guilty to both counts as charged and the parties agreed as to sentencing:

      “The Court will impose the following sentence: Cap of twelve years on total

      sentence. Court to determine all terms including consecutivity.” Appellant’s

      Appendix at 33. On March 19, 2015, the court held a guilty plea hearing at

      which Cofield admitted to touching L.H.’s penis and W.R.’s penis and that he

      did so to satisfy his sexual desires.




      1
       Cofield also argues that the record establishes that his plea agreement was based on an understanding that
      he would have a right to appeal his sentence. We need not address this argument as we address the merits of
      Cofield’s argument on appeal that the court abused its discretion in sentencing him.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015          Page 2 of 8
[3]   On April 16, 2015, the court held a sentencing hearing. The court heard

      testimony from L.H.’s grandmother, who testified as to the impact Cofield’s

      actions had on L.H., that his grades had dropped, that he is angry, paranoid,

      and cries a lot, that he fears people will leave him, and that he had started with

      counseling. The court also heard testimony from W.R.’s mother, who testified

      as to the impact of Cofield’s actions on W.R., that W.R. was going through

      therapy, that she and her husband considered Cofield a close friend, and that

      they helped his mother when needed. The prosecutor argued that the court

      should order that Cofield’s sentences be served consecutively and that the

      aggravators outweighed the mitigators. After discussing aggravating and

      mitigating factors, the trial court stated in part:

              The other issue before the Court is whether this is a pattern of
              conduct close in time or whether these are separate events that
              subject themselves to sentencing consecutively. . . . The Court
              found that there was a factual adequate basis but . . . the
              frankness of your admission, uh, was not typically, what a Court
              expects when it’s looking for an admission to a crime. I found
              the factual basis but it was difficult. There was some hesitancy
              on your part to really, uh admit exactly when this occurred and
              how it occurred and that makes creates a situation for the Court,
              uh, which makes the determination of a consecutive sentence,
              two (2) separate and distinct acts as opposed to same day close in
              time, more difficult. Uh, I have resolved that issue as well with a
              recollection with what was said during the fact-finding hearing
              and I now determine that the event with, uh, and I am not sure
              which happened first, but the event probably with the eleven (11)
              year old happened first and with knowledge that you got away
              with that, uh, a second victim was targeted, uh, and the crime
              committed against the second victim, the younger child.
              Aggravating, uh, or consecutive sentences are, uh appropriate in

      Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015   Page 3 of 8
              this case and an aggravated sentence is appropriate in this case.
              The aggravators that I refer to are, uh, have been stated, which
              could in some cases, justify the maximum sentence of eight (8)
              years, however because of the, uh, mitigating circumstances, the
              aggregators [sic] do outweigh those mitigating circumstances of
              pleading guilty and not having an minimal criminal record, but,
              uh, there was a reason for the plea agreement that caps the
              sentence at twelve (12) years, uh, six (6) years on each is an
              aggravated sentence and each specific case I find that the
              aggravating factors outweigh the mitigating factors, you shall
              serve six (6) years in the Indiana Department of Correction on
              count one (1) and six (6) years in the Indiana Department Of
              Correction on count two (2). Those sentences shall be served
              consecutively, uh, you are remanded to the custody of the Cass
              County Sheriff for transfer to the Indiana Department of
              Correction.

      Transcript at 51-52.


[4]   On April 20, 2015, the court entered a written sentencing order which provided

      that the mitigating factors included that Cofield entered a voluntary plea

      agreement, thus sparing the young victims from potential trauma associated

      with having to testify at trial, and that he did not have a criminal record. The

      order also found the following aggravating factors:

              a. The harm or damage suffered by the victim of each offense
              was significant and greater than the elements necessary to prove
              the commission of the offense. . . .
              b. The victim of each offense was less than twelve (12) years of
              age (Count 1, age 11; Count 2, age 5) at the time the crime was
              committed . . . .
              c. The person was in a position having care, custody or control
              of the victim of each offense. . . .

      Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015   Page 4 of 8
      Appellant’s Appendix at 45. The court found that the aggravating factors

      outweighed the mitigating factors and that “[t]he commission of each crime in

      this case is separate and distinct from the other and the sentence in each case

      shall be served consecutively.” Id. The court sentenced Cofield to six years for

      each of his convictions for child molesting as a class C felony and ordered that

      the sentences be served consecutive to each other for an aggregate sentence of

      twelve years.


                                                  Discussion

[5]   The issue is whether the trial court abused its discretion in ordering that Cofield

      serve his sentences for two counts of child molesting as class C felonies

      consecutive to each other. Cofield argues that the court identified aggravating

      factors for enhancing the sentences on the counts but did not identify separate

      or additional aggravators in support of its decision to impose consecutive

      sentences. He asserts the complexity of the case and severity of the crimes

      made it particularly important that the court identify a specific aggravator in

      support of consecutive sentences. The State maintains that the court did not

      abuse its discretion in imposing consecutive sentences because Cofield molested

      two children and that injury to multiple victims is a valid aggravating factor that

      supports consecutive sentences, and that the rationale for consecutive sentences

      is apparent on the face of the record.


[6]   We review a trial court’s sentencing determination for an abuse of discretion.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007). An abuse of discretion occurs if the decision is “clearly against
      Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015   Page 5 of 8
      the logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Id. A

      trial court abuses its discretion if it: (1) fails “to enter a sentencing statement at

      all;” (2) enters “a sentencing statement that explains reasons for imposing a

      sentence—including a finding of aggravating and mitigating factors if any—but

      the record does not support the reasons;” (3) enters a sentencing statement that

      “omits reasons that are clearly supported by the record and advanced for

      consideration;” or (4) considers reasons that “are improper as a matter of law.”

      Id. at 490-491. The relative weight or value assignable to reasons properly

      found, or those which should have been found, is not subject to review for

      abuse of discretion. Id. at 491. We may review both the written and oral

      sentencing statements in order to identify the findings of the trial court. Harris

      v. State, 964 N.E.2d 920, 926 (Ind. Ct. App. 2012) (citing McElroy v. State, 865

      N.E.2d 584, 589 (Ind. 2007)), trans. denied.


[7]   The decision to impose consecutive sentences lies within the discretion of the

      trial court. Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied.

      In order to impose consecutive sentences, the trial court must find at least one

      aggravating circumstance. Id. at 870. There is no basis for holding that a trial

      court is restricted to a one-step balancing process when sentencing a defendant

      for multiple crimes, and it is permissible for a trial court to consider aggravators

      and mitigators in determining the sentence for each underlying offense and then

      to independently consider aggravators and mitigators in determining whether to

      impose concurrent or consecutive sentences. Id. Appellate review “should

      Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015   Page 6 of 8
      focus on the forest—the aggregate sentence—rather than the trees—consecutive

      or concurrent, number of counts, or length of the sentence on any individual

      count” and that “[w]hether the counts involve one or multiple victims is highly

      relevant to the decision to impose consecutive sentences if for no other reason

      than to preserve potential deterrence of subsequent offenses.” Id. (citing

      Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).


[8]   The imposition of consecutive sentences is a separate and discrete decision from

      sentence enhancement, although both may be dependent upon the same

      aggravating circumstances. Mathews v. State, 849 N.E.2d 578, 589 (Ind. 2006)

      (citing Ajabu v. State, 722 N.E.2d 339, 343 (Ind. 2000)); see also Moore v. State,

      907 N.E.2d 179, 181 (Ind. Ct. App. 2009) (noting the trial court “may rely on

      the same reasons to impose an enhanced sentence and also impose consecutive

      sentences”), reh’g denied, trans. denied. As with sentence enhancement, even a

      single aggravating circumstance may support the imposition of consecutive

      sentences. Mathews, 849 N.E.2d at 589 (citing Sanquenetti v. State, 727 N.E.2d

      437, 442 (Ind. 2000)).


[9]   The court found, as set forth above, that certain aggravating and mitigating

      factors existed and that the aggravating factors outweighed the mitigating

      factors. Cofield pled guilty to molesting two children, and at the sentencing

      hearing the court stated with respect to its decision to impose consecutive

      sentences that it had determined that “the event probably with the eleven (11)

      year old happened first and with knowledge that you got away with that, uh, a

      second victim was targeted, uh, and the crime committed against the second

      Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015   Page 7 of 8
       victim, the younger child.” Transcript at 51-52. Additionally, recognizing

       Cofield pled guilty to molesting two victims, the court found in part in its

       sentencing order with regards to aggravating factors that “[t]he harm or damage

       suffered by the victim of each offense was significant,” that “[t]he victim of each

       offense was less than twelve (12) years of age (Count 1, age 11; Count 2, age 5) at

       the time the crime was committed,” and that Cofield “was in a position having

       care, custody or control of the victim of each offense.” Appellant’s Appendix at 45

       (emphases added). Cofield does not challenge the validity of or the evidence

       supporting the aggravating factors found by the court.


[10]   Based on the record, we cannot say that the trial court abused its discretion in

       ordering that Cofield serve his two six-year sentences for child molesting as

       class C felonies consecutive to each other for an aggregate sentence of twelve

       years.


                                                  Conclusion

[11]   For the foregoing reasons, we affirm Cofield’s aggregate sentence of twelve

       years for two counts of child molesting as class C felonies.


[12]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1505-CR-432| December 23, 2015   Page 8 of 8
