MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Dec 08 2015, 7:31 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
Leanna Weissmann                                        Gregory F. Zoeller
Lawrenceburg, Indiana                                   Attorney General of Indiana

                                                        Karl M. Scharnberg
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeremy McCool,                                          December 8, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A05-1505-CR-331
        v.                                              Appeal from the Dearborn Circuit
                                                        Court
State of Indiana,                                       The Honorable Kimberly A.
Appellee-Plaintiff                                      Schmaltz, Magistrate
                                                        Trial Court Cause No.
                                                        15C01-1411-F4-59



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015      Page 1 of 8
                                           Case Summary
[1]   Jeremy McCool appeals his twelve-year sentence for level 4 felony unlawful

      possession of a firearm by a serious violent felon (“SVF”). He asserts that the

      trial court improperly considered his lack of remorse as an aggravating factor

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

      his character. Finding that the trial court acted within its discretion in its

      treatment of his lack of remorse and that he has failed to establish that his

      sentence is inappropriate, we affirm.


                              Facts and Procedural History
[2]   In 2009, McCool was convicted of class B felony rape with force or imminent

      threat of force. His sentence included executed time followed by probation.

      After his September 2014 release, he met with his probation officer to discuss

      the conditions of his probation, which included home visits as well as a

      prohibition against his use or possession of firearms.


[3]   In November 2014, his probation officer and two other officers visited

      McCool’s home, which he shared with his wife Kathy (“Wife”), his mother-in-

      law, and about ten other members of Wife’s family. When the officers entered

      the house, they saw McCool and Wife walking toward their bedroom. Wife

      was carrying a box containing shotgun ammunition and magazines for a rifle.

      When McCool’s probation officer asked him whether there were firearms in the

      house, Wife indicated that there was a firearm in the closet between the

      couple’s bedroom and the kitchen. A search of the closet produced a .22 rifle

      Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015   Page 2 of 8
      and a BB gun. During a search of the couple’s bedroom, the officers found a

      shotgun and another rifle underneath the comforter on the bed. Prior to the

      officers’ visit, the firearms had been in a glass-front gun cabinet inside McCool

      and Wife’s bedroom, where they had been stored since McCool moved into the

      house two months before.


[4]   After the officers’ visit, Wife’s family members took the firearms to an uncle’s

      house in Ohio. A few days later, police determined that McCool was an SVF

      based on his previous rape conviction. As such, his possession of firearms

      amounted not only to a probation violation but also to a new criminal offense:

      unlawful possession of a firearm by an SVF. Police drove to Ohio and took

      possession of the firearms from Wife’s uncle.


[5]   The State charged McCool with level 4 felony unlawful possession of a firearm

      by an SVF. A jury convicted him as charged. In sentencing him to the

      maximum twelve-year term, the trial court found as aggravating factors his lack

      of remorse and extensive criminal history.


[6]   McCool appeals, challenging only his sentence. Additional facts will be

      provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015   Page 3 of 8
                                  Discussion and Decision

        Section 1 – The trial court did not abuse its discretion
         in its treatment of McCool’s lack of remorse as an
                         aggravating factor.
[7]   McCool maintains that the trial court improperly considered his lack of remorse

      as an aggravating factor during sentencing. Sentencing decisions rest within the

      sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

      2007), clarified on reh’g, 875 N.E.2d 218. As long as the sentence is within the

      statutory range, it is subject to review only for an abuse of discretion. Id. An

      abuse of discretion occurs if the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before it, or the reasonable, probable,

      and actual deductions to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018,

      1026 (Ind. Ct. App. 2014). One of the ways that a court might abuse its

      discretion is by listing reasons for its sentence that are improper as a matter of

      law. Anglemyer, 868 N.E.2d at 490-91.


[8]   McCool submits that as a matter of law the trial court improperly designated

      his lack of remorse as an aggravator. A trial court may consider as an

      aggravator the defendant’s lack of remorse, exhibited “when he displays disdain

      or recalcitrance, the equivalent of ‘I don’t care.’” Sloan, 16 N.E.3d at 1027

      (quoting Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002)). However, a

      court may not consider as an aggravator lack of remorse by a defendant

      “consistently maintaining his innocence if the defendant does so in good faith.”

      Id.
      Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015   Page 4 of 8
[9]    McCool asserts that his steadfast claim of innocence throughout the

       proceedings is antithetical to a show of remorse. However, recorded jailhouse

       phone conversations admitted during trial contradict his assertion that he

       maintained his innocence in good faith. In one such conversation with Wife

       shortly after his arrest, McCool related to her a proposed narrative in which the

       two would aver that he never touched the firearms or was even present in the

       bedroom where the officers found the firearms. State’s Ex. 17. He twice

       emphasized to Wife, “You/We gotta stick with that story …. You hear me?”

       Id. When Wife recited the narrative back to McCool and protested, “They [the

       firearms] were in there and you were in there,” he became agitated and

       admonished her to state that she was the only one who possessed the firearms.

       Id. In another recorded conversation, McCool lamented to Wife, “That’s my

       fingerprints are on ‘em [the firearms].” State’s Ex. 18. Wife proposed that she

       testify, “I grabbed ‘em out [of the gun cabinet] and handed ‘em to you … I

       guess.” Id. When Wife began to exhibit frustration, McCool retorted, “Well,

       it’s gonna go to court and we need to have our stories straight.” Id.


[10]   These conversations, together with the fact that the officers found two of the

       firearms hidden in the couple’s bed covers, indicate that McCool’s assertions of

       innocence were not made in good faith. Thus, his lack of remorse could

       properly be considered as an aggravator, and we find no abuse of discretion in

       the trial court’s treatment of this factor.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015   Page 5 of 8
           Section 2 – McCool has failed to establish that his
          sentence is inappropriate in light of the nature of the
                        offense and his character.
[11]   McCool asks that we reduce his sentence pursuant to Indiana Appellate Rule

       7(B), which states that we “may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, [this] Court finds that the

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

       of the offender.” When a defendant requests appellate review and revision of

       his sentence, we have the power to affirm or reduce the sentence. Akard v. State,

       937 N.E.2d 811, 813 (Ind. 2010). 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 test is whether the sentence is “inappropriate.”

       Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears

       the burden of persuading this Court that his sentence meets the

       inappropriateness standard. Anglemyer, 868 N.E.2d at 490.


[12]   In considering the nature of a defendant’s offense, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Id. at

       494. McCool was convicted of level 4 felony unlawful possession of a firearm

       by an SVF, which carries a sentencing range of two to twelve years, with a six-

       year advisory sentence. Ind. Code § 35-50-2-5.5. He characterizes his offense

       as relatively innocuous and complains that it did not merit the maximum

       sentence of twelve years. He emphasizes that the firearms belonged to his

       deceased father-in-law and were present on the premises when he moved there.

       Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015   Page 6 of 8
       In other words, he did not pursue the firearms; the firearms found him. In this

       vein, we note the following: the offense for which McCool was convicted

       requires evidence of possession, not ownership, of a firearm; McCool lived at the

       residence with multiple firearms for nearly two months; the firearms were

       stored in his bedroom; officers found the shotgun and one of the rifles hidden

       underneath the comforter on his bed; he and Wife were in possession of a box

       of ammunition when the officers entered the home for the probation check; and

       his firearm possession was prohibited not only because of his SVF status but

       also because it amounted to a probation violation. Simply put, the nature of

       McCool’s offense supports a lengthy sentence.


[13]   Even so, we note that McCool’s particular offense is based on his status as an

       SVF. This means that an analysis of the nature of the offense cannot focus

       solely on the circumstances surrounding the offender’s commission of it or the

       motive behind his procurement of the firearm; rather, it necessitates a close look

       at who is possessing the firearm. We therefore turn our analysis to McCool’s

       character.


[14]   McCool characterizes himself as a “simple man” who struggles from attention

       deficit disorder and a lack of education, who did not proactively pursue the

       firearms he possessed, and who “struggled to understand” the “nuances of

       constructive possession law” and the criminal implications of the presence of

       firearms in his home. Appellant’s Br. at 5, 9, 13. The recorded phone

       conversations belie these assertions, clearly showing that McCool knew he was

       breaking the law and attempted to concoct a false narrative. Moreover, this

       Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015   Page 7 of 8
       “simple man” is a violent sex offender, having been convicted of class B felony

       rape with force or imminent threat of force. His assertion that there was “no

       threat to society due to the presence of guns in his home” is puzzling if not

       audacious. Id. at 12.


[15]   Finally, McCool’s lengthy criminal record reflects a pattern of convictions and

       probation violations. His juvenile record includes adjudications for vandalism

       and underage drinking. In addition to his felony rape conviction, his adult

       history includes misdemeanor convictions for intimidation, harassment,

       criminal recklessness, operating while intoxicated with endangerment, and

       repeat public intoxication and driving while suspended convictions. He asks for

       grace in sentencing, yet his five probation violations and four revocations (to

       date) reveal his abject failure to respond to lenient treatment. In short, McCool

       has failed to establish that his sentence is inappropriate in light of the nature of

       the offense and his character. Accordingly, we affirm.


[16]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1505-CR-331 | December 8, 2015   Page 8 of 8
