Christopher D. McCoy, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
Case No. 10A05-1703-CR-681
Court of Appeals of Indiana
February 28, 2018
Vaidik, Chief Judge.
Appeal from the Clark Circuit Court 1, The Honorable Andrew Adams, Judge, Trial Court Cause No. 10C01-1505-FA-005
ATTORNEY FOR APPELLANT
Christopher Sturgeon
Clark County Public Defender‘s Office
Jeffersonville, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Christina D. Pace
Deputy Attorney
Indianapolis, Indiana
Case Summary
[1] Indiana‘s child-molesting statute,
[2] A related statute says that a person who has been “convicted of . . . [c]hild molesting involving sexual intercourse, deviate sexual conduct . . . or other sexual conduct” could, under certain circumstances, be designated a “credit restricted felon.”
[3] We must decide whether a person who pleads guilty to charges of molestation by “fondling or touching“—but in doing so does not dispute evidence that his molestation included deviate/other sexual conduct (in this case, oral sex and vaginal penetration with an object)—has been “convicted” of child molesting involving deviate/other sexual conduct for purposes of the credit-restricted-felon statute. We hold that he has not.
Facts and Procedural History
[4] In December 2014, the mother of eleven-year-old S.M. reported to police that Christopher McCoy, S.M.‘s thirty-year-old adoptive father, had been molesting S.M. Five months later, the State charged Christopher McCoy with four counts of child molesting under
Between May 2, 2013 and June 30, 2014, in Clark County, State of Indiana, CHRISTOPHER D. MCCOY, a person at least 21 years of age, performed or submitted to sexual intercourse with S.M., a child under fourteen (14) years of age.
Appellant‘s App. Vol. II p. 16. In Count II, the State charged McCoy with child molesting as a Class C felony as follows:
Between May 2, 2013 and June 30, 2014, in Clark County, State of Indiana, CHRISTOPHER D. MCCOY, with S.M., a child under fourteen (14) years of age, performed or submitted to any fondling or touching of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, to-wit: touching and rubbing S.M.‘s vagina and/or having S.M. rub his penis.
Id. In Count III, the State charged McCoy with child molesting as a Level 1 felony as follows:
Between July 1, 2014 and December 27, 2014, in Clark County, State of Indiana, CHRISTOPHER D. MCCOY, a person at least 21 years of age, performed or submitted to sexual intercourse with S.M., a child under fourteen (14) years of age.
Id. And in Count IV, the State charged McCoy with child molesting as a Level 4 felony as follows:
Between July 1, 2014 and December 27, 2014, in Clark County, State of Indiana, CHRISTOPHER D. MCCOY, with S.M., a child under fourteen (14) years of age, performed or submitted to any fondling or touching of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, to-wit: touching and rubbing S.M.‘s vagina and/or having S.M. rub his penis.
Id.
[5] In January 2017, the parties reached a plea agreement under which the State
[6] At the sentencing hearing, S.M.‘s mother testified that McCoy had also engaged in oral sex with S.M. McCoy did not dispute that evidence. The trial court identified four aggravating factors: (1) the harm, injury, loss, or damage suffered by S.M. and her mother was significant and greater than the elements necessary to prove the commission of the offenses, given that they “developed mental health issues” following the offenses; (2) S.M. was less than twelve years old at the time of the offenses; (3) McCoy committed a crime of violence and knowingly committed the offense in the presence or within hearing of individuals who were less than eighteen (S.M.‘s younger siblings); and (4) McCoy was in a position of care, custody, or control with S.M. Sent. Tr. pp. 31-32. Regarding mitigating factors, the court said: “The Court is going to note that the mitigation argued by the defense of no criminal history, that the Pre-Sentence Investigative Report, likely to respond to probation and not likely to commit another criminal offense is argued.” Id. at 32.
[7] The trial court found that “the aggravators outweigh the mitigators” and said that it was imposing the maximum sentence of eight years on Count II and the maximum sentence of twelve years on Count IV, “leaving a total sentence of twenty years.” Id. In its written judgment and the abstract of judgment, however, the court indicated that the two sentences would run concurrently, which would result in a total of twelve years to serve. Appellant‘s App. Vol. II pp. 134-39, 151-53. The court also designated McCoy a “credit restricted felon,” meaning that he would earn one day of good-time credit for every six days he is imprisoned, rather than one day for every day or three days served, which is what most prisoners earn. See
[8] McCoy now appeals.
Discussion and Decision
[9] McCoy appeals his sentence, arguing that it is inappropriate and challenging the trial court‘s finding of aggravators and mitigators. He also contends that the trial court erred by designating him a credit-restricted felon.
I. Sentencing
[10] McCoy first asserts that the trial court sentenced him to “a total of twenty (20) years,” Appellant‘s Br. p. 7, and that twenty years is an inappropriate sentence that we should revise pursuant to Indiana Appellate Rule 7(B). We do not reach this argument because we cannot say with confidence that the trial court actually intended to impose a sentence of twenty years. It is true that, at the sentencing hearing, the trial court said it was sentencing McCoy to eight years on Count II and twelve years on Count IV, “leaving a total sentence of twenty years,” an indication that the sentences are to run consecutively. In its written sentencing documents, though, the court indicated that the two sentences
[11] We will, however, address McCoy‘s challenge to the trial court‘s finding of aggravators and mitigators, since our resolution could impact the proceedings on remand. Our trial courts enjoy broad discretion in identifying aggravating and mitigating factors, and we will reverse only for an abuse of that discretion. Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013).
[12] McCoy first asserts that there is no evidence supporting the trial court‘s finding that he committed his offenses in the presence or within hearing of S.M.‘s younger siblings. The State does not argue otherwise, so we agree with McCoy that the trial court abused its discretion by finding this aggravator.
[13] Second, McCoy contends that the trial court should not have relied on the fact that S.M. was under twelve as an aggravating circumstance, since her age at the time of the offenses was an element of the charges against McCoy (“child under fourteen (14) years of age“). Again, we must agree. While the victim being under twelve can be an aggravator, see
[14] McCoy also asserts that the trial court should have found his guilty plea to be a mitigating factor. He cites Cotto v. State, where our Supreme Court held that while a guilty plea “is not necessarily a significant mitigating factor,” it is error for a trial court to fail to identify a plea as a mitigator “at all.” 829 N.E.2d 520, 525-26 (Ind. 2005). Two years later, however, the Court held that an allegation that the trial court abused its discretion by failing to identify a guilty plea as a mitigator “requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant.” Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007) (emphasis added). “[A] guilty plea may not be significantly mitigating when it does not demonstrate the defendant‘s acceptance of responsibility or when the defendant receives a substantial benefit in return for the plea.” Id. at 221 (citation omitted). Here, to the extent that McCoy accepted responsibility, he didn‘t do so until more than eighteen months after he was charged. In addition, he does not dispute that he received a substantial benefit as a result of his plea in that the State dismissed the two most serious charges against him. Therefore, we cannot say that the trial court abused its discretion by not treating McCoy‘s guilty plea as a mitigator.
[15] We do ask that, on remand, the trial court clarify its conclusions regarding mitigating circumstances. At the sentencing hearing, the court stated: “The Court is
II. Credit Restricted Felon
[16] In addition to challenging his sentence, McCoy argues that the trial court erred by designating him a credit-restricted felon. His argument requires us to consider, for the first time, the interplay between two statutes:
[17]
“Credit restricted felon” means a person who has been convicted of at least one (1) of the following offenses:
(1) Child molesting involving sexual intercourse, deviate sexual conduct (IC 35-42-4-3(a), before its amendment on July 1, 2014) for a crime committed before July 1, 2014, or other sexual conduct (as defined in IC 35-31.5-2-221.5) for a crime committed after June 30, 2014, if:
(A) the offense is committed by a person at least twenty-one (21) years of age; and
(B) the victim is less than twelve (12) years of age.
(2) Child molesting (IC 35-42-4-3) resulting in serious bodily injury or death.
(3) Murder (IC 35-42-1-1), if:
(A) the person killed the victim while committing or attempting to commit child molesting (IC 35-42-4-3);
(B) the victim was the victim of a sex crime under IC 35-42-4 for which the person was convicted; or
(C) the victim of the murder was listed by the state or known by the person to be a witness against the person in a prosecution for a sex crime under IC 35-42-4 and the person committed the murder with the intent to prevent the victim from testifying.
Because it is undisputed that McCoy has not been convicted of an offense under subsection (2) (child molesting resulting in serious bodily injury or death) or subsection (3) (murder), the issue is whether he has been convicted of an offense under subsection (1). The State argues that he has; McCoy argues that he has not. We agree with McCoy.
[18] Again, a person can be a credit-restricted felon under subsection (1) only if he or she has been “convicted” of “[c]hild molesting involving sexual intercourse, deviate sexual conduct (IC 35-42-4-3(a), before its amendment on July 1, 2014) for a crime committed before July 1, 2014, or other sexual conduct (as defined in IC 35-31.5-2-221.5) for a crime committed after June 30, 2014[.]” This language plainly corresponds with subsection (a) of the child-molesting statute,
offenses under subsection (b) of the child-molesting statute, which addresses molestation by “fondling or touching.” See
[19] The State contends that subsection (1) of the credit-restricted-felon statute should be read to apply to “fondling or touching” convictions under subsection (b) of the child-molesting statute in cases where there is evidence that the defendant “went beyond fondling,” Appellee‘s Br. p. 20, and engaged in deviate/other sexual conduct, which is defined as “an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.”
[20] In support of its position, the State relies on
(a) At the time of sentencing, a court shall determine whether a person is a credit restricted felon (as defined in IC 35-31.5-2-72).
(b) A determination under subsection (a) must be based upon:
(1) evidence admitted at trial that is relevant to the credit restricted status;
(2) evidence introduced at the sentencing hearing; or
(3) a factual basis provided as part of a guilty plea.
(c) Upon determining that a defendant is a credit restricted felon, a court shall advise the defendant of the consequences of this determination.
The State asserts that the fact that the trial court is allowed to consider evidence from trial and sentencing or the guilty-plea factual basis makes “clear that it is not just the elements of conviction itself that matters” but also “the facts and circumstances surrounding a conviction for child molesting that involves sexual intercourse, deviate sexual conduct, or other sexual conduct.” Appellee‘s Br. p. 21. In other words, the State contends that the trial court was entitled to find that McCoy has been “convicted” of child molesting “involving” deviate sexual conduct or other sexual conduct—even though he pled guilty only to “fondling or touching“—in light of the evidence of oral sex and penetration by an object. We disagree. The fact that McCoy engaged in deviate/other sexual conduct does not mean that he was convicted of such conduct, which is what the credit-restricted-felon statute requires. See
[21] So what is the purpose of Section 35-38-1-7.8(b) as it relates to subsection (1) of the credit-restricted-felon statute? We believe that the former provision is directed at what we have called the “special circumstances” that must be found under the latter provision, in addition to the qualifying conviction under subsection (a) of the child-molesting statute. See White v. State, 961 N.E.2d 54, 56 (Ind. Ct. App. 2012), trans. denied. Specifically, Section 35-31.5-2-72(1) provides that a person convicted under subsection (a) of the child-molesting statute is a credit-restricted felon only ”if: (A) the offense is committed by a person at least twenty-one (21) years of age; and (B) the victim is less than twelve
[22] Because McCoy has not been convicted of an offense under subsection (a) of the child-molesting statute, Section 35-31.5-2-72(1) cannot apply to him, and the trial court erred by designating him a credit-restricted felon. Therefore, on remand, the trial court must remove that designation and notify the Department of Correction accordingly.
[23] Reversed in part and remanded.
May, J., and Altice, J., concur.