Opinion
23A-CR-3116
06-25-2024
Kasey Wayne Couch, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEES Theodore E. Rokita Indiana Attorney General Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
Pursuant to, this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Switzerland Circuit Court The Honorable W. Gregory Coy, Judge Trial Court Cause Nos. 78C01-2005-F5-198 78C01-1708-F6-307
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEES Theodore E. Rokita Indiana Attorney General Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BRADFORD, JUDGE.
Case Summary
[¶1] Kasey Couch pled guilty to Level 6 felony cocaine possession and Level 5 felony dealing in heroin. Pursuant to a plea agreement that capped Couch's sentence at five years of incarceration, the trial court sentenced him to an aggregate term of five years of incarceration with one year suspended to probation. Couch contends that his sentence is inappropriately harsh. We affirm.
Facts and Procedural History
[¶2] On August 18, 2017, police were dispatched to a parking lot of a liquor store in Patriot and found Couch passed out inside of a truck. Police conducted an open-air search around Couch's truck with police dog Kate, who indicated the presence of drugs. Police found a small glass pipe containing what a field-test indicated was methamphetamine. The State charged Couch with Level 6 felony possession of methamphetamine and Class C misdemeanor possession of paraphernalia in cause number 78C01-1708-F6-307 ("Cause No. 307"). The State later amended the charges to allege possession of cocaine rather than methamphetamine.
[¶3] On March 3, 2020, a confidential informant ("CI") informed police that he could purchase heroin from Couch. Police arranged a controlled buy with the CI, which was to occur near the Markland Dam. The CI gave Couch $140.00 in exchange for 0.44 grams of a fine brown powder that was later determined to contain heroin. The State charged Couch with Level 5 felony dealing in cocaine or a Schedule I or II narcotic drug in cause number 78C01-2005-F5-198 ("Cause No. 198").
[¶4] On October 30, 2023, Couch pled guilty to Level 6 felony possession of cocaine or a narcotic drug in Cause No. 307 and Level 5 felony dealing cocaine or a narcotic drug in Cause No. 198. Couch's plea agreement provided that the sentence in Cause No. 307 would be capped at two years, the sentence in Cause No. 198 would be capped at three years, and both sentences would be served consecutively. On November 29, 2023, the trial court sentenced Couch to an aggregate sentence of five years of incarceration with one year suspended to probation.
Discussion and Decision
[¶5] Couch contends that his five-year sentence, with four years to be executed and one year to be suspended to probation, is inappropriately harsh. We "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." Ind. Appellate Rule 7(B). "Although appellate review of sentences must give due consideration to the trial court's sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied." Shouse v. State, 849 N.E.2d 650, 660 (Ind.Ct.App. 2006) (citations and quotation marks omitted), trans. denied. "[W]hether we regard a sentence as appropriate at the end of the day 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." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the "'due consideration'" we are required to give to the trial court's sentencing decision, "we understand and recognize the unique perspective a trial court brings to its sentencing decisions." Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App. 2007).
[¶6] Moreover, we generally agree that "[a] defendant's conscious choice to enter a plea agreement that limits the trial court's discretion to a sentence less than the statutory maximum should usually be understood as strong and persuasive evidence of sentence reasonableness and appropriateness." Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006) (Dickson, J., concurring). Courts assessing sentence appropriateness following such plea agreements should grant relief "only in the most rare, exceptional cases." Id. The maximum statutory sentence Couch could have received was eight and one-half years of incarceration, the plea agreement capped his sentence at five years of incarceration, and the trial court imposed a lesser sentence than that, ordering a five-year sentence with one year suspended to probation.
Couch's Level 6 felony carried a possible sentence of between six months and two and a half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b). Couch's Level 5 felony carried a sentence of between one and six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b).
[¶7] While Couch's offenses do not strike us as particularly egregious examples of those crimes, he did not even receive the maximum sentence permitted by the plea agreement into which he voluntarily entered, much less the maximum sentence he could have received in the absence of the plea agreement. Moreover, while Couch characterizes his actions on both occasions as a result of his addictions, he does not explain how the act of dealing heroin was a result of his addiction. The nature of Couch's offenses does not warrant a reduction in this sentence.
[¶8] As for Couch's character, his criminal history and the failure of less-restrictive measures do not speak well of it. It is well-settled that even a minor criminal record can be evidence of poor character, depending on "the gravity, nature and number of prior offenses as they relate to the current offense." Rutherford, 866 N.E.2d at 874. Couch has a somewhat lengthy criminal history, including Level 6 felony convictions for possession of a narcotic drug, unlawful possession of a syringe, and theft and Class A misdemeanor convictions for theft, criminal recklessness, and driving while suspended. Couch's criminal history weighs against a more lenient sentence. Skeens v. State, 191 N.E.3d 916, 924 (Ind.Ct.App. 2022).
[¶9] Couch's history of failed efforts at reform also supports his sentence. Couch has received the benefit of probation five times and has violated the terms of probation four times. Moreover, despite having participated in more than one drug-treatment program, Couch admitted to having used fentanyl on September 5, 2023, approximately three months before sentencing. Couch's significant record of unsuccessful attempts to undergo treatment and rehabilitation strongly suggests that more restrictive measures are warranted. In light of the nature of his offenses and his character, Couch has failed to convince us that his five-year sentence with one year suspended to probation is inappropriate.
[¶10] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.