MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 08 2019, 9:48 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                    Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ethan A. Cox,                                             July 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-3085
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable John F. Surbeck,
Appellee-Plaintiff                                        Jr., Judge
                                                          Trial Court Cause No.
                                                          02D06-1804-F6-378



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019                     Page 1 of 8
[1]   Ethan A. Cox appeals the aggregate sentence of four years executed and two

      and a half years suspended that he received for his convictions, three Level 6

      felonies and a Class A misdemeanor, stemming from his attempt to flee police

      rather than be pulled over for speeding while on probation. He claims his

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


[2]   We affirm.


                                      Facts and Procedural History


[3]   On the morning of March 30, 2018, Allen County Police Officer Jeffery

      Reasoner was in full police uniform and sitting in his marked police vehicle

      when his radar indicated a gold GMC SUV was traveling 79 miles per hour

      down a road with a posted speed limit of 50 miles per hour. Officer Reasoner

      activated his emergency lights and sirens and started to follow the vehicle, later

      confirmed to be driven by Cox. Rather than stop his vehicle, Cox sped up,

      reaching speeds of over 90 miles per hour.


[4]   At one point, Cox pulled over, waited until Officer Reasoner had pulled up

      behind him, and then backed up into Officer Reasoner’s front bumper and took

      off again. The chase eventually exceeded speeds of 95 miles per hour. Cox

      drove through stop signs and turned down multiple roads. Cox then made a U-

      turn to head in the direction of Officer Reasoner’s vehicle. Cox swerved

      partially into Officer Reasoner’s lane but did not hit him. Cox left the roadway

      and drove off-road through parking lots and fields in an attempt to lose the

      officer. Cox got back on the road, ran another stop sign, and turned so his

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019   Page 2 of 8
      vehicle was heading in Officer Reasoner’s direction again. Cox crossed into

      Officer Reasoner’s lane and hit the driver’s side back door of Officer Reasoner’s

      car. The impact of the crash tore off Officer Reasoner’s rear bumper and drove

      the officer’s car into a ditch, almost landing it in a stream.


[5]   After driving his SUV into a utility pole, Cox attempted to flee the scene on

      foot. Officer Reasoner exited his car and attempted to deploy his police K-9 but

      could not get the damaged back door to open. Officer Reasoner and other

      officers now on the scene chased Cox on foot, yelling, “Stop, Police!”

      Appellant’s Appendix Vol. II at 31. Cox ran a little farther before lying down in a

      field to surrender.


[6]   At the time of the incident, Cox was on probation for Class B misdemeanor

      possession of hash oil in LaGrange County. Additionally, Cox was registered

      as a habitual traffic violator until 2023, and he did not have a valid license.

      Cox’s prior criminal history consisted of one drug possession misdemeanor and

      five driving-related misdemeanors.


[7]   Cox was charged with and pled guilty without a plea agreement to multiple

      counts. The court entered convictions on four counts. For Count I, Level 6

      felony criminal recklessness with a deadly weapon, Cox was sentenced to two

      and a half years executed in the Department of Correction (DOC). For Count

      II, Level 6 felony resisting law enforcement using a vehicle, Cox was sentenced

      to two and a half years suspended to probation. For Count III, Level 6 felony

      operating a vehicle after being a habitual traffic violator, Cox was sentenced to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019   Page 3 of 8
      one and a half years executed. Counts I, II, and III were to be served

      consecutively. For Count IV, Class A misdemeanor resisting law enforcement,

      Cox received a concurrent sentence of 180 days. Cox now appeals.


                                         Discussion and Decision


[8]   Cox contends that his sentence is inappropriate. Pursuant to Indiana Appellate

      Rule 7(B), this Court “may revise a sentence authorized by statute if, after due

      consideration of the trial court’s decision, the Court finds that the sentence is

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

      offender.” The main purpose of such a review is to “leaven the outliers,” not to

      achieve a perceived “correct” result. Cardwell v. State, 895 N.E.2d 1219, 1225

      (Ind. 2008). As such, our focus is on the aggregate sentence, rather than the

      particulars of any individual count (e.g. consecutive or concurrent, number of

      counts, length of individual count’s sentence). Id.


[9]   In reviewing sentences, “we must and should exercise deference to a trial

      court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

      consideration’ to that decision and because we understand and recognize the

      unique perspective a trial court brings to its sentencing decisions.” Stewart v.

      State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). “Such deference should

      prevail unless overcome by compelling evidence portraying in a positive light

      the nature of the offense (such as accompanied by restraint, regard, and lack of

      brutality) and the defendant’s character (such as substantial virtuous traits or




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019   Page 4 of 8
       persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122

       (Ind. 2015).


[10]   The determination of whether a sentence as inappropriate “turns on our sense

       of the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Bethea v.

       State, 983 N.E.2d 1134, 1145 (Ind. 2013). The question under App. R. 7(B) is

       “not whether another sentence is more appropriate” but rather “whether the

       sentence imposed is inappropriate.” Miller v. State, 105 N.E.3d 194, 196 (Ind.

       Ct. App. 2018). Cox bears the burden of persuading us that his sentence is

       inappropriate. Stewart, 866 N.E.2d at 866.


[11]   “To assess the appropriateness of the sentence, we look first to the statutory

       range established for the classes of offenses.” Croy v. State, 953 N.E.2d 660, 664

       (Ind. Ct. App. 2011). Cox was sentenced for three Level 6 felonies, which have

       a statutory range of six months to two and a half years, with an advisory

       sentence of one year. Ind. Code § 35-50-2-7 (b). For two of the Level 6 felonies

       Cox received the maximum sentence, and for the third Cox received a sentence

       six months greater than the advisory sentence. For his Class A misdemeanor,

       Cox was sentenced to 180 days, which is almost squarely in the middle of the

       statutory sentencing range of zero days to one year. I.C. § 35-50-3-2.


[12]   With respect to the nature of his offenses, Cox asserts that his sentence is

       inappropriate because no one was injured during the police chase. This court

       has recognized that “[t]he nature of the offense is found in the details and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019   Page 5 of 8
       circumstances of the commission of the offense and the defendant’s

       participation.” Croy, 953 N.E.2d at 664. Here, Cox drove through multiple

       stop signs, fields, and parking lots as he led Officer Reasoner on a high-speed

       chase. He hit Officer Reasoner’s car, not once, but twice. During the chase,

       Cox posed a risk not only to Officer Reasoner, but also to other travelers and

       bystanders. While it is true that no one was injured, that is due to luck, not any

       particular restraint or regard on Cox’s part. The nature of Cox’s police chase

       warranted the sentence he received.


[13]   With respect to his character, Cox asserts that his untreated learning disabilities

       and criminal record do not support his sentence length or placement in the

       DOC. While “obligated to receive and consider mitigating factors, the trial

       court is not obligated to accept the defendant’s contentions as to what

       constitutes a mitigating circumstance or to give the proffered mitigating

       circumstances the same weight the defendant does” – nor are we. Wilkes v.

       State, 917 N.E.2d 675, 690 (Ind. 2009). Cox claims that his learning disabilities

       are the root cause of his legal problems, and he argues that any sentence that

       includes time executed in the DOC over work release or home detention is

       inappropriate because the DOC will not give Cox the same access to treatment

       services that work release or home detention would. Like the trial court, we are

       not persuaded. While Cox blames his learning disability for his legal trouble,

       we note that he confessed that he knew he was supposed to pull over for Officer

       Reasoner when he saw the lights flashing behind him. Cox’s learning

       disabilities do not excuse his behavior.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019   Page 6 of 8
[14]   “The significance of criminal history varies based on the gravity, nature, and

       number of prior offenses in relation to the current offense.” Garcia v. State, 47

       N.E.3d 1249, 1251 (Ind. Ct. App. 2015). While it is true that Cox does not

       have a juvenile record or any prior felony convictions, he has six prior

       misdemeanor convictions that similarly involve operating a vehicle. Cox’s

       prior criminal history consists of three counts of operating a vehicle without

       ever receiving a valid license, one instance of operating a vehicle while

       intoxicated endangering a person, one failure to stop after accident resulting in

       non-vehicle damage, and one possession of hash oil. Having had his license

       suspended and being placed on probation multiple times has failed to deter Cox

       from driving. Further aggravating matters, Cox was on probation for the hash

       oil possession at the time of the present incident and has been unsatisfactorily

       discharged from probation before. Additionally, when Cox received a work

       release placement several years ago, it was revoked and Cox was ordered to

       serve the remainder of his sentence in jail. Given evidence of Cox’s repeated

       disregard for the law and failure to reform regarding driving without a license

       and his unsuitability for work release, the trial court’s decision to sentence Cox

       to time served in the DOC is appropriate.


[15]   Considering the nature of the offense and Cox’s character, an aggregate

       sentence of four years executed in the DOC and two and a half years suspended

       to probation is not inappropriate.


[16]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019   Page 7 of 8
Kirsch, J. and Vaidik, C.J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3085 | July 8, 2019   Page 8 of 8
