Opinion
No. 45A03-1105-CR-199
12-06-2011
LOUIS D. COLE, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : MARK A. BATES Office of the Lake County Public Defender Crown Point, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
MARK A. BATES
Office of the Lake County Public Defender
Crown Point, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-0908-MR-6
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN , Judge
Louis D. Cole appeals his sentence for voluntary manslaughter as a class A felony. Cole raises one issue, which we revise and restate as whether his sentence is inappropriate. We affirm.
The relevant facts follow. The State originally charged Cole with murder on August 11, 2009, and subsequently filed an amended information on February 23, 2011, charging Cole with murder and voluntary manslaughter as a class A felony. Cole pled guilty to voluntary manslaughter as a class A felony pursuant to a written plea agreement, which included an attached exhibit entitled Stipulated Factual Basis. The plea agreement provided that "there shall be a maximum cap of thirty (30) years as to the sentence which may be imposed by the Court" and that "[a]t the time of sentencing, the State agrees to dismiss [the count for] Murder . . . ." Appellant's Appendix at 48. Cole stipulated that on August 9, 2009, he went to the home of Monique Brown. Cole and Monique had a sexual relationship and were involved in committed relationships with other individuals. When Cole arrived at Monique's home he discovered there was another man, Darritt Brown, inside Monique's home. Cole, who had a firearm in his hand, saw Darritt leaving and confronted him. Darritt pulled his gun out, and Cole and Darritt began firing at each other. Cole was struck once in the face and Darritt was struck a total of five times, including once in the chest, twice in the shoulder, once on the right side of the abdomen, and once in the forearm. Darritt died as a result of the gunshot injuries.
Following a hearing, the court entered judgment of conviction for voluntary manslaughter as a class A felony and dismissed the murder charge. The court found Cole's "history of juvenile adjudications and misdemeanor convictions" to be an aggravating circumstance and "the nature and circumstances of the crime in that Cole armed himself and drove to the home of his lover where he provoked a confrontation with another lover who was also armed, essentially a love triangle that ended in death" to be "a significant aggravating factor." Id. at 52. The court found the facts that Darritt "facilitated the offense because he was also armed" and that Cole "admitted his guilt by way of plea agreement, thus saving the Court and tax payers of this county the time and expense of trial" to be mitigating circumstances. Id. The court sentenced Cole to thirty years with two years suspended to probation.
Cole appears to argue that a sentence of less than thirty years "is a more appropriate punishment when all the facts are considered." Appellant's Brief at 7. With respect to the nature of the offense, Cole argues Darritt, Monique, and Cole "were involved in a tragic love triangle" and that Monique "was responsible for both men being present at her house that night." Id. With respect to his character, Cole argues that he expressed remorse for killing Darritt, that he spared the families and the State emotional and financial expense by entering into a guilty plea, and that the court's use of his prior criminal history resulted in an inappropriate sentence.
The State argues that "[a]lthough [Cole] phrases his argument for appellate review under Indiana Appellate Rule 7(B), his argument is essentially a request for this Court to reweigh the aggravating and mitigating factors already found by the trial court, which this Court may not do on appeal" and that Cole "has therefore waived appellate review of his sentence under Indiana Appellate Rule 7(B)." Appellee's Brief at 5-6. The State argues that Cole armed himself with a firearm, waited for Darritt outside Monique's residence, and provoked the confrontation with Darritt while armed with a gun which resulted in Cole shooting Darritt five times and killing him. The State further argues that Cole's juvenile and adult history supports his advisory sentence and that Cole's expression of regret and his guilty plea do not warrant a reduction in his sentence because he received a substantial benefit by pleading guilty.
I.
We first address Cole's arguments related to whether the trial court should have considered his remorse as a mitigating circumstance or assigned additional weight to his guilty plea as a mitigating circumstance. We note that we review the sentence for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion if it: (1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law." Id. at 490-491. However, the relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. at 491.
The determination of mitigating circumstances is within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007), trans. denied. The trial court is not obligated to accept the defendant's argument as to what constitutes a mitigating factor, and a trial court is not required to give the same weight to proffered mitigating factors as does a defendant. Id. A trial court's determination of a defendant's remorse is similar to a determination of credibility. Pickens v. State, 767 N.E.2d 530, 534-535 (Ind. 2002). Without evidence of some impermissible consideration by the court, we accept its determination of credibility. Id. The trial court is in the best position to judge the sincerity of a defendant's remorseful statements. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied.
At sentencing, Cole testified and expressed his remorse to Darritt's family, his own family, and the State of Indiana. The trial court was able to consider Cole's statements, and based upon our review of the sentencing transcript and record we cannot say that the trial court abused its discretion by not finding Cole's alleged remorse to be a mitigating circumstance. See Stout, 834 N.E.2d at 711 (addressing the defendant's argument that the trial court had overlooked his remorse as a mitigating factor and holding that the court did not err in not finding the defendant's alleged remorse to be a mitigating factor).
In addition, to the extent Cole argues that the trial court improperly assessed the weight to be assigned to his guilty plea and that the court improperly considered his criminal history as an aggravating circumstance rather than a mitigating circumstance, we note that the argument is, in essence, a request for this court to reweigh those factors, which we may not do. See Anglemyer, 868 N.E.2d at 490-491.
II.
The next issue is whether Cole's sentence is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that this court "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Our review of the nature of the offense reveals that Cole went to Monique's home and, while armed with a gun, confronted Darritt. Cole and Darritt exchanged gunfire, and Cole shot Darritt a total of five times, including once in the chest, twice in the shoulder, once on the right side of the abdomen, and once in the forearm, which led to Darritt's death. Our review of the character of the offender reveals that, pursuant to a plea agreement under which Cole's maximum sentence would be thirty years, Cole pled guilty to voluntary manslaughter and the State dismissed its murder charge against him. In addition, the record reveals that Cole's criminal history includes a juvenile adjudication for battery in 1998 and adult misdemeanor convictions for resisting law enforcement and conversion in 2003, intimidation in 2008, and invasion of privacy in 2009. Cole's probation in connection with the 2003 convictions was revoked in 2005.
After due consideration, we conclude that Cole has not sustained his burden of establishing that his sentence of thirty years with two years suspended to probation is inappropriate in light of the nature of the offense and his character.
Also, Cole states in his brief that "[t]he penal code is based upon principles of reformation" and cites Article 1, Section 18 of the Indiana Constitution. See Appellant's Brief at 10. To the extent that Cole suggests that his sentence violates the Indiana Constitution, we note that the Indiana Supreme Court has held that "particularized, individual applications are not reviewable under Article 1, Section 18 because Section 18 applies to the penal code as a whole and does not protect fact-specific challenges." Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998), reh'g denied.
For the foregoing reasons, we affirm Cole's sentence.
Affirmed.
MAY, J., and CRONE, J., concur.