      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                                FILED
      Memorandum Decision shall not be regarded as                          Jul 28 2017, 5:59 am
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,                       CLERK
                                                                             Indiana Supreme Court
      collateral estoppel, or the law of the case.                              Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                   Attorney General
      Brooklyn, Indiana
                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Mark J. Cottey,                                           July 28, 2017

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A03-1701-CR-148
              v.                                                Appeal from the Elkhart Circuit
                                                                Court.
                                                                The Honorable Michael A.
      State of Indiana,                                         Christofeno, Judge.
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                20C01-1102-FB-7




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Mark J. Cottey appeals the denial of his motion for sentence modification. We

      affirm.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-148 | July 28, 2017            Page 1 of 4
                                                     Issue
[2]   Cottey raises one issue, which we restate as: whether the trial court abused its

      discretion in denying Cottey’s motion.


                               Facts and Procedural History
[3]   In 2011, the State charged Cottey with three counts of armed robbery, all Class

      B felonies. Cottey had driven an acquaintance to several convenience stores,

      where the acquaintance robbed a total of three people at gunpoint. The

      acquaintance discharged the gun during one of the robberies.


[4]   On September 14, 2011, Cottey and the State signed a plea agreement. Per the

      terms of the agreement, Cottey would receive a stipulated total sentence of

      thirty-five years, with ten years suspended to probation. The agreement further

      provided, “The State shall confer jurisdiction to the [trial court] to consider a

      modification in calendar year 2016.” Appellant’s App. Vol. 2, p. 18. The trial

      court accepted the plea agreement and sentenced Cottey according to its terms.


[5]   On December 5, 2016, Cottey filed a motion for sentence modification, asking

      to be placed in a home detention program. The court denied the motion

      without a hearing but ordered a status report from the Indiana Department of

      Correction, indicating that the court could change its mind depending upon the

      contents of the report. After receiving the report, the court reaffirmed its denial

      of Cottey’s motion for sentence modification, citing his “substantial conduct

      violation history” while incarcerated. Id. at 7. Cottey filed a motion to

      reconsider, which the court denied. This appeal followed.
      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-148 | July 28, 2017   Page 2 of 4
                                   Discussion and Decision
[6]   Upon a defendant’s motion, a trial court may “reduce or suspend” a sentence

      after reviewing a report from the Indiana Department of Correction. Ind. Code

      § 35-38-1-17 (2010). We review a trial court’s decision on a motion for sentence

      modification for abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196

      (Ind. 2010). An abuse of discretion occurs when the trial court’s decision “is

      clearly against the logic and effect of the facts and circumstances or it is a

      misinterpretation of the law.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).


[7]   Cottey argues the trial court misstated his prison conduct record because he had

      only one violation, in 2013. He further argues the violation was minor in

      nature and is outweighed by his many achievements while incarcerated.

      Specifically, Cottey obtained his GED, completed an apprenticeship job

      training program, and completed many programs for self-improvement. In

      addition, he claims he has a support network that will assist him once he leaves

      prison and that he is remorseful for his crimes.


[8]   The State responds that Cottey’s conduct while incarcerated must be considered

      in perspective with his criminal offenses and his sentence. We agree. See

      Marshall v. State, 563 N.E.2d 1341, 1344 (Ind. Ct. App. 1990) (post-

      incarceration conduct should be balanced against sentencing considerations in

      considering a motion for sentence modification), trans. denied. Cottey pleaded

      guilty to three counts of armed robbery, all Class B felonies. As the trial court

      noted during a pretrial hearing, “It’s a pretty serious situation.” Tr. Vol. II, p.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-148 | July 28, 2017   Page 3 of 4
       5. Despite the severity of the crimes, the parties negotiated a plea agreement,

       and Cottey received an executed sentence of twenty-five years (plus ten to be

       served on probation), well short of the maximum possible sentence of sixty

       years. See Ind. Code § 35-50-2-5 (2005) (twenty years is the maximum sentence

       for a Class B felony). At the sentencing hearing, the prosecutor stated he had

       agreed to the lesser sentence due to Cottey’s relatively minor criminal record,

       his young age, and his lesser degree of participation in the robberies.


[9]    Considering Cottey’s relatively short executed sentence and the opportunity

       that was granted to him to seek a sentence modification in 2016, it was not

       unreasonable for the trial court to hold Cottey to a high standard of conduct

       while imprisoned. Cottey’s efforts to improve himself and correct his behavior

       are commendable, but we cannot conclude the trial court acted against the logic

       and effects of the facts and circumstances before it by denying Cottey’s motion

       for sentence modification.


                                                Conclusion
[10]   For the reasons stated above, we affirm the judgment of the trial court.


[11]   Affirmed.


       Pyle, J., concurs.


       Robb, J., dissents without opinion.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-148 | July 28, 2017   Page 4 of 4
