MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 13 2019, 8:46 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
Timothy P. Broden                                       Curtis T. Hill, Jr.
Lafayette, Indiana                                      Attorney General of Indiana
                                                        Sarah J. Shores
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Walter Kenneth Cobbs II,                                December 13, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1705
        v.                                              Appeal from the
                                                        Tippecanoe Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff                                      Steven P. Meyer, Judge
                                                        Trial Court Cause No.
                                                        79D02-1904-F5-46



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019                Page 1 of 6
                                          Case Summary
[1]   Walter Kenneth Cobbs II appeals his sentence for Level 5 felony intimidation

      with a deadly weapon and Class A misdemeanor carrying a handgun without a

      license, arguing that it is inappropriate in light of the nature of his offenses and

      his character. We affirm.



                            Facts and Procedural History
[2]   On the night of March 26, 2019, Cobbs and Marcell Smith were at an

      apartment together, and Cobbs pointed a handgun at Smith to get him to leave.

      The next day, Cobbs and Smith saw each other outside the Howarth Center, a

      building in Lafayette that houses various non-profit agencies. The two briefly

      fought before Cobbs drew his gun and fired a round. There is conflicting

      evidence as to whether Cobbs was aiming at Smith, but Smith was not hit.

      Cobbs fled the scene and stashed the gun outside a nearby house. Police

      quickly apprehended Cobbs, and he brought them to the gun.


[3]   Based on the March 27 incident, the State charged Cobbs with Level 5 felony

      attempted battery with a deadly weapon, Level 5 felony intimidation with a

      deadly weapon, Level 6 felony pointing a firearm, Level 6 felony criminal

      recklessness, and Class A misdemeanor carrying a handgun without a license.

      Cobbs and the State then entered into a plea agreement under which Cobbs

      pled guilty to the intimidation and carrying-a-handgun charges, the State




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019   Page 2 of 6
      dismissed the other three charges, and sentencing was left to the discretion of

      the trial court.


[4]   In sentencing Cobbs, the trial court found four aggravating factors:


              the seriousness of the offense (gun was loaded); the repetitive
              conduct (used the same gun the night before to intimidate the
              same people); he attempted to conceal his involvement in the
              crime by hiding a loaded handgun in a residential area under a
              bush near a home where it could have been found by a child or
              another member of the community; and this incident happened
              at the Howarth Center, a community center which houses not-
              for-profit agencies that provide help to less fortunate people.


      Appellant’s App. Vol. II p. 14. The court also found four mitigating factors:

      Cobbs has no criminal history; he has some mental-health issues; he accepted

      responsibility; and he expressed remorse. The court found that the aggravating

      factors outweigh the mitigating factors and sentenced Cobbs to three years for

      the intimidation conviction and a concurrent term of one year for the carrying-

      a-handgun conviction. The court ordered Cobbs to serve one year in the

      Department of Correction and suspended the other two years to probation, with

      the first year of probation to be served through Tippecanoe County Community

      Corrections.


[5]   Cobbs now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019   Page 3 of 6
                                Discussion and Decision
[6]   Cobbs contends that his sentence is inappropriate and asks us to reduce it

      pursuant to Indiana Appellate Rule 7(B), which provides that an appellate 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.” “Whether a

      sentence is inappropriate ultimately turns on the culpability of the defendant,

      the severity of the crime, the damage done to others, and a myriad of other

      factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391

      (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008)). Because we generally defer to the judgment of trial courts in sentencing

      matters, defendants have the burden of persuading us that their sentences are

      inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).


[7]   Cobbs pled guilty to Level 5 felony intimidation and Class A misdemeanor

      carrying a handgun without a license. For a Level 5 felony, the sentencing

      range is one to six years, with an advisory sentence of three years. Ind. Code §

      35-50-2-6. For a Class A misdemeanor, a defendant faces a sentence of up to

      one year. Ind. Code § 35-50-3-2. As such, Cobbs faced up to seven years in

      prison. The trial court imposed a total sentence of three years—the advisory

      sentence for the Level 5 felony and a concurrent sentence of one year for the

      Class A misdemeanor—and suspended two of the three years to probation, with

      the first year of probation to be served on community corrections.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019   Page 4 of 6
[8]    Cobbs argues that his sentence is inappropriate because of the mitigating factors

       identified by the trial court (no criminal history, mental-health issues,

       acceptance of responsibility, and expression of remorse) and because he brought

       officers to the gun after he was apprehended. However, he acknowledges that

       the other circumstances of his offenses made them particularly serious. He

       pointed the gun at the same person the previous night. He committed his

       crimes at the Howarth Center, which houses nonprofit agencies that provide

       services for less-fortunate people. He not only drew the gun (which would have

       been enough for Level 5 felony intimidation, see Ind. Code § 35-45-2-1(b)(2)(A))

       but fired it. And after the shooting, he left the gun outside a house, where, as

       the trial court noted, it could have been found by a child or another person.

       Notwithstanding the seriousness of Cobbs’s crimes, the trial court imposed the

       advisory sentence of three years and then suspended two of those years to

       probation.


[9]    Cobbs also notes that “all [his] support mechanisms are in the State of South

       Carolina where he has a large and close knit family, was mentored by a youth

       pastor at his church and had a part-time job at McDonald’s for five (5) years.”

       Appellant’s Br. p. 10. But the trial court took this fact into consideration and

       said that it “would approve the transfer of Defendant’s Probation to South

       Carolina upon completion of the Defendant’s executed sentence.” Appellant’s

       App. Vol. II p. 15.


[10]   Cobbs has not convinced us that his sentence is inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019   Page 5 of 6
[11]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019   Page 6 of 6
