96 N.E.3d 95
Ind. Ct. App.2018Background
- In 2014-2015, Christopher D. McCoy was charged with four counts of child molesting involving his 11-year-old adoptive daughter; two counts alleged sexual intercourse/other sexual conduct (Counts I, III) and two alleged fondling/touching (Counts II, IV).
- McCoy pleaded guilty to the two fondling/touching counts (Counts II and IV); the two intercourse/other-sexual-conduct counts were dismissed under a plea agreement. The factual basis and probable-cause affidavit included allegations of oral sex and vaginal penetration by an object.
- At sentencing, the trial court orally announced consecutive terms (8 years on Count II and 12 years on Count IV) but the written judgment reflected concurrent sentences; the court also identified several aggravators and recorded mitigators ambiguously.
- The trial court designated McCoy a “credit-restricted felon,” which reduces good-time credit, based on evidence that the molestation included deviate/other sexual conduct despite his convictions being for fondling/touching.
- McCoy appealed, challenging both the sentence (appropriateness and the court’s findings on aggravators/mitigators) and the credit-restricted-felon designation. The Court of Appeals remanded for sentencing clarification and reversed the credit-restriction designation.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McCoy) | Held |
|---|---|---|---|
| Whether the trial court’s apparent 20-year total sentence is appropriate and whether sentences run consecutively | State treats the oral announcement as reflecting the court’s intent to impose consecutive sentences | McCoy argues 20 years is inappropriate; ambiguity exists between oral pronouncement (consecutive) and written judgment (concurrent) | Court remanded for clarification of whether sentences are concurrent or consecutive; did not decide appropriateness of 20 years now |
| Whether trial court abused discretion by finding certain aggravators (presence/hearing of siblings; victim under 12) | State defended aggravators as supported by record | McCoy argued insufficient evidence for siblings; age under 12 was element and cannot be used absent particularized findings | Court held abuse of discretion: no record support for siblings aggravator; under-12 aggravator improper without particularized circumstances |
| Whether trial court erred by not treating guilty plea as a mitigator | State argued plea was late and produced substantial benefit, so not significant mitigator | McCoy argued guilty plea should be a mitigator per precedent | Court held no abuse: plea came late and yielded substantial benefit, so not necessarily significant; but asked trial court to clarify which mitigators it actually found |
| Whether McCoy could be designated a credit-restricted felon based on evidence of deviate/other sexual conduct despite convictions being for fondling/touching | State argued sentencing evidence/factual basis may be considered under I.C. § 35-38-1-7.8, allowing designation where defendant "went beyond fondling" | McCoy argued designation requires a conviction under child-molesting subsection (a) (sexual intercourse/other sexual conduct), which he was not convicted of | Held for McCoy: designation requires a conviction under subsection (a); evidence of other conduct at sentencing does not convert a subsection (b) conviction into a subsection (a) conviction, so credit-restricted designation was erroneous and must be removed |
Key Cases Cited
- McCarthy v. State, 749 N.E.2d 528 (Ind. 2001) (trial court cannot use an element of the crime as an aggravator absent particularized circumstances)
- Cotto v. State, 829 N.E.2d 520 (Ind. 2005) (guilty plea should be identified as a mitigating factor even if not significant)
- Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007) (defendant must show mitigating evidence is significant to establish abuse for omission of plea as mitigator)
- White v. State, 961 N.E.2d 54 (Ind. Ct. App. 2012) (interpretation of credit-restricted-felon provision and role of special circumstances)
- Pierce v. State, 29 N.E.3d 1258 (Ind. 2015) (trial court may examine broader record to determine victim's age for sentencing purposes)
- KS&E Sports v. Runnels, 72 N.E.3d 892 (Ind. 2017) (statutory interpretation reviewed de novo)