MEMORANDUM DECISION                                                              FILED
                                                                            Apr 10 2017, 9:35 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 CLERK
this Memorandum Decision shall not be                                        Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

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
Joshua D. Hershberger                                    Curtis T. Hill, Jr.
Hershberger Law Office                                   Attorney General of Indiana
Madison, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Matthew Caudill,                                   April 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         72A01-1609-CR-2066
        v.                                               Appeal from the Scott Circuit
                                                         Court
State of Indiana,                                        The Honorable Roger L. Duvall,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         72C01-1511-MR-4



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017                Page 1 of 14
[1]   James Matthew Caudill appeals his sentence for murder 1 and Level 5 felony

      robbery 2 with a sentencing enhancement for the use of a firearm in the

      commission of the crimes. 3 He argues:


                 1. The trial court abused its discretion when it did not consider
                 Caudill’s guilty plea as a mitigating factor when sentencing him;


                 2. The trial court abused its discretion when it did not consider
                 Caudill’s statement of remorse as a mitigating factor when
                 sentencing him; and


                 3. The trial court abused its discretion when it found “the
                 imposition of a reduced sentence would depreciate the
                 seriousness of the crime,” (Br. of Appellant at 13), and used that
                 finding as an aggravating factor when sentencing him.


      We affirm.



                                Facts and Procedural History
[2]   On November 7, 2015, in Austin, in Scott County, Indiana, Caudill and his

      girlfriend, Ginger Cox, entered seventy-eight-year-old John Turner’s store to

      retrieve a ring Caudill pawned to Turner after Caudill stole the ring from Justin

      Roberts. Turner would not permit Caudill to buy back the ring at the original




      1
          Ind. Code § 35-42-1-1 (2014).
      2
          Ind. Code § 35-42-5-1 (2014).
      3
          Ind. Code § 35-50-2-11(e) (2015).


      Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 2 of 14
      pawned price, so Caudill and Cox left the store and went to their apartment.

      Caudill changed his clothes, putting on a dark hoodie and jeans to cover the

      tattoos on his leg.


[3]   Caudill and Cox returned to Turner’s store, parking slightly down the street to

      watch customers leave Turner’s store. While they were waiting, Caudill

      outfitted a gun he had obtained from his brother, Christopher, with a

      homemade silencer. After they believed everyone had exited the store, Caudill

      went inside the store with the gun and a backpack. Caudill returned to the

      vehicle a short time later, told Cox he shot Turner in the head, left the shell

      casing behind, and stole coins, jewelry, and cash.


[4]   Caudill then found Roberts, returned the ring he had stolen from Roberts, and

      gave Roberts a few gold necklaces and approximately $4,500.00 in cash.

      Caudill told Roberts about the robbery and about shooting Turner. Caudill

      then burned his clothes. He asked Christopher to bury the cash and the gun

      and to burn the security tape from the apartment complex showing Caudill

      packing up the proceeds from the robbery and burning his clothes.


[5]   A short time later, police arrested Caudill, who was not cooperative. Caudill

      attempted to hide money and a gun during the arrest, but police recovered both.

      While in jail, he called someone to tell them he had hidden cash “at the exact

      place where he was arrested . . . where the leaves were pushed away . . . there

      was [sic] two bags of peas that were then sealed up and those bags contained

      approximately $8,000.00 in cash,” (Tr. at 115), and asked that person to retrieve


      Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 3 of 14
      it. During a search of Caudill’s apartment, police found the murder weapon

      and jewelry, cash, and coins stolen from Turner. The police also located the

      burn pile where Caudill burned his clothes and recovered a shell casing

      matching Caudill’s gun at the crime scene.


[6]   On November 13, 2015, the State charged Caudill with two counts of murder

      and one count each of Level 2 felony robbery resulting in serious bodily injury, 4

      Level 3 felony robbery taking property by force while armed, 5 Level 6 felony

      resisting law enforcement, 6 Level 6 felony obstruction of justice, 7 and Class A

      misdemeanor carrying a handgun without a license. 8 The State requested the

      trial court enhance Caudill’s sentence based on his use of a firearm in the

      commission of the crime and filed a notice of its intention to seek a sentence of

      life without parole 9 if Caudill were convicted.


[7]   A jury trial was to commence on August 2, 2016, but on July 28, 2016, the

      parties entered a conditional plea agreement whereby Caudill would plead

      guilty to one count of murder and one count of Level 5 felony robbery. The

      other charges against him would be dismissed, as well as eight other pending




      4
          Ind. Code § 35-42-5-1 (2014).
      5
          Ind. Code § 35-42-5-1 (2014).
      6
          Ind. Code § 35-44.1-3-1(b)(1) (2014).
      7
          Ind. Code § 35-44.1-2-2 (2014).
      8
          Ind. Code § 35-47-2-1 (2014).
      9
          Ind. Code § 35-50-2-9 (2015).


      Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 4 of 14
      felony charges and a pending probation revocation petition based on his

      commission of a Class B misdemeanor. The plea agreement left sentencing to

      the trial court’s discretion, with a sentencing range for murder of forty-five to

      sixty-five years, with a sentence enhancement of five to twenty years, and a

      concurrent one to six years for robbery. Thus, the sentencing range for the

      crimes could be from fifty to eighty-five years.


[8]   The trial court accepted the plea agreement and, on August 11, 2016, held a

      sentencing hearing. Regarding aggravating and mitigating factors, the trial

      court stated:

              You have a history of criminal or delinquent behavior. . . . You
              have recently violated conditions of probation or pre-trial release.
              You were on continued probation from the Scott Superior Court
              case at the time that this, these acts were committed. The victim,
              John Turner, was at least 65 years of age, he was 78. He was
              everything we hope a person should be in this country. Not a
              celebrity, not a star athlete, not someone who gets his name in
              the newspaper every day, but someone who lived the true
              American dream. He worked hard. He left his home and came
              to Indiana, he sacrificed for his family. He served as a wonderful
              example to friends, family and this community. The statutory
              aggravating factor has always been [sic] a special meaning to this
              court as it speaks to victims less than 12 years or victims older
              than 65 or 65 and older. This is appropriate because we as a
              society believe that the young and the elderly need, deserve and
              have earned, that special protection. John Turner certainly has
              earned that. There are listed statutory mitigating factors. You
              have listed that it could be a hardship upon your family. The
              Court does not believe that to be an appropriate statutory factor
              for consideration. Under best circumstances as [Defense
              Counsel] correctly noted you will be an old man before you get

      Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 5 of 14
        out under these crimes, out of incarceration from these crimes.
        You would, you have no way to be of assistance to your family
        during that period of time or to your son. The drug use, the
        voluntary drug use. Anyone who’s been in this court knows that
        for the person who comes before me who expresses the sincere
        desire to deal with their addictions and try to change their life,
        there is great sympathy. However, the Court is under no
        obligation nor will it consider as a mitigating circumstance
        voluntary drug use in a crime of violence. And finally, I will
        acknowledge, I don’t know whether to go so far as to call it a
        mitigating circumstance, but I will acknowledge that you have
        plead [sic] guilty, you have saved the county considerable money
        and time and more importantly you have eliminated the need of
        [sic] the victim’s family to have to go through an excruciatingly
        painful trial. Having done this a long time I know how much
        that can be. But under those circumstances I find that to impose
        a mitigated or to consider that factor to impose a mitigated or
        even the advisory sentence would diminish the seriousness of the
        offense. . . . This was not a crime of heat or passion where the
        emotions of the defendant caused an angry, spontaneous act.
        This was not a crime of opportunity where there was[,] without
        pre-meditation[,] circumstances which presented themselves to a
        defendant and that defendant took advantage of those
        circumstances to commit a crime. This was a planned,
        premeditated, cold act of robbery and murder. . . . Twice you saw
        John Turner’s face, you heard his voice, you heard his
        interactions with the other people in the shop. Twice you heard
        and saw his humanity and you could have done anything up to
        3:46 on that day to have changed your course of action, and you
        failed to do so. Instead of considering the better way, you only
        took steps to hide the path of your actions. In those last minutes
        before you finally went into the shop you took a plastic pop
        bottle, attached it to your gun to hide and muffle the sound of the
        act that you were about to commit. . . . In your case the evidence
        leads[,] to me[,] to come to only two circumstances that are most
        probable, you killed John Turner for the pure gratuitous act of
        killing him, for the thrill of it or by killing John Turner you

Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 6 of 14
               eliminated the only person who could identify you as the
               perpetrator of this robbery. Either circumstance speaks volumes
               about the lack of character and about your need to be in society.
               After the murder and robbery, you took steps to hide the fruits of
               your crime. . . . The State’s asked me to consider lying in wait as
               an aggravator. That’s an appropriate request on behalf their part
               although I do not know that I need to make the specific finding
               that that is a factor because it is sufficient for the court to note the
               circumstances that you, that support a lying in wait finding, that
               you waited until John Turner was at his most vulnerable and
               most alone before you committed this act. You have forever
               changed the lives of the Turner family and you forever changed
               the lives of your family.


      (Tr. at 199-203.) The trial court sentenced Caudill to sixty-five years for murder

      and enhanced that sentence by twenty years for the use of a firearm in the

      commission of the crime. The trial court sentenced him to six years for

      robbery, to be served concurrently, for an aggregate sentence of eighty-five

      years.



                                 Discussion and Decision
[9]   “[S]entencing decisions rest within the sound discretion of the trial court and

      are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218

      (Ind. 2007). An abuse of discretion occurs if the decision is clearly against the

      logic and effect of the facts and circumstances before the trial court. Id. When

      reviewing the aggravating and mitigating circumstances identified by the trial

      court in its sentencing statement, we will remand only if “the record does not

      Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 7 of 14
       support the reasons, or the sentencing statement omits reasons that are clearly

       supported by the record, and advanced for consideration, or the reasons given

       are improper as a matter of law.” Id. at 490-1.


[10]   The sentencing range for murder is forty-five to sixty-five years, with an

       advisory sentence of fifty-five years. Ind. Code § 35-50-2-3(a) (2015). The

       sentencing range for Level 5 felony robbery is one to six years, with an advisory

       sentence of three years. Ind. Code § 35-50-2-6(b) (2014). A person who

       commits “a felony under IC 35-42 10 that resulted in death” while “knowingly or

       intentionally us[ing] a firearm” may be imprisoned for an “additional fixed

       term.” Ind. Code § 35-50-2-11 (2015) (footnote added).


[11]   Caudill’s plea agreement stated, in relevant part:

                  The Parties agree that the sentence range available to the Court
                  on Count I [murder] shall be from FORTY-FIVE (45) to SIXTY-
                  FIVE (65) YEARS, ENHANCED by FIVE (5) to TWENTY
                  (20) YEARS, pursuant to I.C. 35-50-2-11 (Firearms
                  Enhancement), for a TOTAL sentencing range of from FIFTY
                  (50) to EIGHTY-FIVE (85) years.


                                                         *****


                        The Parties agree that the sentence range available to the
                  Court on Count IV shall be from ONE (1) to SIX (6) YEARS.




       10
            Murder is a felony under Ind. Code § 35-42-1-1 (2014).


       Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 8 of 14
       (App. Vol. II at 11-12) (emphasis in original). The plea agreement also

       indicated the sentences were to be concurrent. The trial court sentenced

       Caudill to sixty-five years for murder, enhanced by twenty years for the use of a

       firearm in the commission of the crimes, to be served concurrent with a six-year

       sentence for Level 5 felony robbery, for an aggregate sentence of eighty-five

       years.


                                   I. Guilty Plea as Mitigating Factor

[12]   The trial court is not required to find mitigating factors or give them the same

       weight that the defendant does. Rascoe v. State, 736 N.E.2d 246, 248-49 (Ind.

       2000). However, a court abuses its discretion if it does not consider significant

       mitigators advanced by the defendant and clearly supported by the record.

       Anglemyer, 868 N.E.2d at 490. The trial court stated, regarding its consideration

       of Caudill’s guilty plea as a mitigator:

                And finally, I will acknowledge, I don’t know whether to go so
                far as to call it a mitigating circumstance, but I will acknowledge
                that you have plead [sic] guilty, you have saved the county
                considerable money and time and more importantly you have
                eliminated the need of [sic] the victim’s family to have to go
                through an excruciatingly painful trial. Having done this a long
                time I know how much that can be. But under those
                circumstances I find that to impose a mitigated or to consider
                that factor to impose a mitigated or even the advisory sentence
                would diminish the seriousness of the offense.


       (Tr. at 200.) Caudill argues the trial court abused its discretion when it did not

       give his guilty plea mitigating weight when imposing his sentence.


       Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 9 of 14
[13]   Caudill pled guilty five days before his trial was to begin. “A plea’s significance

       is reduced if it is made on the eve of the trial[.]” Caraway v. State, 959 N.E.2d

       847, 853 (Ind. Ct. App. 2011), trans. denied. Further, the State filed a notice to

       the court early in the proceedings that it would pursue a sentence of life without

       the possibility of parole, but Caudill’s plea capped his sentence at eighty-five

       years. Also, as a condition of the plea, the State dismissed multiple felony

       charges and a probation revocation pending against him. Finally, the State had

       gathered an abundance of evidence that Caudill committed the crime.

       Surveillance video indicated Caudill was the last person to enter Turner’s store

       prior to Turner’s murder; jail phone surveillance recorded Caudill asking

       someone to obtain and conceal the cash from the robbery that Caudill had

       hidden under leaves when he was arrested; police recovered the murder weapon

       and the silencer from Caudill when he was arrested and they found bags of

       cash, jewelry, and coins as part of their search of Caudill’s residence; Cox had

       already pled guilty and agreed to testify against Caudill; and Caudill admitted

       to Cox he robbed and killed Turner.


[14]   “A guilty plea is not necessarily a mitigating factor where the defendant

       receives a substantial benefit from the plea or where evidence against the

       defendant is so strong that the decision to plead guilty is merely pragmatic.”

       Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied.

       Based on the timing of his plea, the benefit of the fixed sentenced derived from

       the plea, and the mountain of evidence the State had against him, we cannot

       conclude Caudill’s plea was anything but pragmatic. Accordingly, we hold the


       Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 10 of 14
       trial court did not abuse its discretion when it did not consider Caudill’s guilty

       plea as a mitigating factor when sentencing him.


                            II. Statement of Remorse as Mitigating Factor

[15]   At his sentencing hearing, Caudill stated:

               I just want to say that I’m sorry for the things that I’ve done. I
               know I have hurt a lot of people, not only your family but mine
               as well. I regret what happened and I’d take it back if I could.
               There’s really nothing I can say or do to change any of this.
               When I robbed your family I also robbed my 3 year old son of a
               father too. All I can do is accept my fate and continue to prison
               and try to better myself as a person and try to get out one day and
               be in my son’s life. I, I was not in my right mind that day, I was
               under the influence of drugs, and I know if I was in my right
               mind I wouldn’t have done it, I wouldn’t have done it.


       (Tr. at 179.) The trial court did not indicate it considered Caudill’s statement as

       a mitigator or aggravator when sentencing him. A trial court is not obligated to

       accept a defendant’s remorse as a mitigating factor. Phelps v. State, 969 N.E.2d

       1009, 1020 (Ind. Ct. App. 2012), trans. denied. “The trial court possesses the

       ability to directly observe a defendant and can best determine whether a

       defendant’s remorse is genuine. Substantial deference must be given to the trial

       court’s evaluation of a defendant’s remorse.” Id. Therefore, we hold the trial

       court did not abuse its discretion when it did not find Caudill’s remorse as a

       mitigating factor when imposing his sentence.




       Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 11 of 14
                                    III. Improper Aggravating Factor

[16]   Caudill contends the trial court used an improper aggravating circumstance

       because it stated: “[U]nder those circumstances I find that to impose a

       mitigated or to consider that factor to impose a mitigated or even the advisory

       sentence would diminish the seriousness of the offense.” (Tr. at 200.) Caudill

       relies on Taylor v. State, 840 N.E.2d 324, 340 (Ind. 2006), to support his

       argument. In Taylor, our Indiana Supreme Court held:


               The court incorrectly identified as an aggravating factor the fact
               that the “imposition of [a] reduce[d] sentence would depreciate
               the seriousness of the crime.” Tr. at 1334. By the time of
               Taylor’s sentencing, this Court had held on multiple occasions
               that that aggravator “may only be used when a trial court is
               considering imposition of a sentence which was shorter than the
               presumptive sentence.” Jones v. State, 675 N.E.2d 1084, 1088
               (Ind. 1996). Accord Mayberry v. State, 670 N.E.2d 1262, 1270
               (Ind. 1996); Penick v. State, 659 N.E.2d 484, 488 (Ind. 1995);
               Evans v. State, 497 N.E.2d 919, 923 (Ind. 1986). There is no
               evidence in the record that the trial court considered a sentence
               shorter than the presumptive. The trial court erroneously used
               this factor to support a maximum sentence.


       Id. While the trial court did not explicitly use the words “aggravating factor” in

       making the statement Caudill challenges, it is possible the statement could be

       considered as such and was improper under Taylor.


[17]   However, later that year, our Indiana Supreme Court held the opposite in

       Mathews v. State, 849 N.E.2d 578 (Ind. 2006):




       Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017   Page 12 of 14
        Dorsey [Mathews] argues that the trial court relied on improper
        aggravating circumstances to enhance his sentences and to order
        them to be run consecutively. Dorsey first argues that this Court
        has consistently held that the [phrase] “depreciate the seriousness
        of the offense” be used as an aggravating factor only when the
        court is considering the imposition of a shorter sentence than the
        presumptive. This is not an accurate statement. To the contrary,
        we have held that it is not error to enhance a sentence based
        upon the aggravating circumstance that a sentence less than the
        enhanced term would depreciate the seriousness of the crime
        committed. See Walter v. State, 727 N.E.2d 443, 447 (Ind. 2000);
        Huffman v. State, 717 N.E.2d 571, 577 (Ind. 1999); Ector v. State,
        639 N.E.2d 1014, 1016 (Ind. 1994); Evans v. State, 497 N.E.2d
        919, 923-24 (Ind. 1986).


Id. at 589-90. Thus, we conclude, based on the holding in Mathews, the trial

court did not abuse its discretion when it determined that, “[U]nder those

circumstances I find that to impose a mitigated or to consider that factor to

impose a mitigated or even the advisory sentence would diminish the

seriousness of the offense[,]” (Tr. at 200), as a reason to enhance Caudill’s

sentence. 11



                                          Conclusion


11
  Furthermore, a “single aggravating circumstance may be sufficient to enhance a sentence. When a trial
court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence
enhancement may still be upheld.” Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), (quoting
Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999)), trans. denied. Here, there were multiple aggravators
considered by the trial court besides that which Caudill challenges. Caudill planned and executed the
robbery and killing of an elderly shop owner and attempted to conceal the evidence of his crime. In addition,
Caudill had a lengthy criminal record with multiple felony charges pending before the State dismissed those
charges pursuant to a plea agreement.

Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017          Page 13 of 14
[18]   The trial court did not abuse its discretion 12 when it refused to consider as

       mitigators Caudill’s guilty plea and statement of remorse. Additionally, the

       trial court did not abuse its discretion when it determined the imposition of an

       advisory sentence would “diminish the seriousness of the offense.” (Id.) We

       affirm.


[19]   Affirmed.


       Najam, J., and Bailey, J., concur.




       12
          Caudill frames his arguments as if they are reviewable by this court under Indiana Appellate Rule 7(B),
       which grants us jurisdiction to determine the appropriateness of his sentence based on the nature of the
       offense and the character of the offender. The State counters we should review Caudill’s arguments for abuse
       of discretion, which we agree is the correct standard of review. See Anglemyer, 868 N.E.2d at 490 (appellate
       court reviews sentencing court’s findings regarding aggravators and mitigators for an abuse of discretion).
       However, we note Caudill’s sentence is also appropriate under Indiana Appellate Rule 7(B) because Caudill’s
       plea and alleged remorse cannot minimize the heinous nature of his crimes or the fact his extensive criminal
       history reflects poorly on his character.

       Court of Appeals of Indiana | Memorandum Decision 72A01-1609-CR-2066 | April 10, 2017         Page 14 of 14
