Opinion
24A-CR-682
09-18-2024
Joseph M. Koker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT DONALD J. FREW FORT WAYNE, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA SAMUEL J. DAYTON DEPUTY ATTORNEY GENERAL MADISON CRAWFORD CERTIFIED LEGAL INTERN INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable David M. Zent, Judge Trial Court Cause No. 02D06-2306-F5-198
ATTORNEY FOR APPELLANT DONALD J. FREW FORT WAYNE, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA SAMUEL J. DAYTON DEPUTY ATTORNEY GENERAL MADISON CRAWFORD CERTIFIED LEGAL INTERN INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Bradford, Judge
Case Summary
[¶1] After receiving calls regarding an armed disturbance, Fort Wayne police officers arrested Joseph Koker. The State charged Koker with Count I Level 5 felony unlawfully carrying a handgun, Count II Level 5 felony theft, Counts III and IV Level 6 felony resisting law enforcement. After a jury trial, the jury could not come to a unanimous decision regarding Koker's alleged unlawful carrying of a handgun, found him not guilty of theft, and found him guilty of the resisting law enforcement counts. The trial court merged the two counts and sentenced Koker to two years of incarceration. Koker contends that his sentence is inappropriate in light of the nature of his offense and his character. We affirm but remand with instructions for the trial court to vacate the conviction and sentence entered on Count IV for resisting law enforcement, which it had merged with Count III resisting law enforcement.
Facts and Procedural History
[¶2] In early June of 2023, Koker was living in J.T.'s Fort Wayne apartment. At some point, J.T. had asked Koker to move out, and while Koker had repeatedly told J.T. that he would, after several days Koker had still not left. One morning, J.T. told Koker to leave, and the discussion became heated. As the discussion ended, Koker grabbed several items, including a backpack and safe, and left the apartment.
[¶3] Shortly thereafter, police received multiple calls regarding an armed disturbance and describing a man with a gun at J.T.'s apartment. When police officers arrived, they found J.T. in a panicked state. J.T. explained to the officers that she had been trying to make Koker leave and that, when he had finally left, she noticed that her handgun had been taken. J.T. informed the officers that Koker had just left with a backpack and described Koker's appearance.
[¶4] As an officer was speaking with J.T., another officer noticed Koker walking away from J.T.'s apartment. The officer stopped Koker and, knowing that J.T. had reported her handgun as missing, began to conduct a pat-down search of Koker. The officers took hold of Koker's right arm and his backpack and he began to "twist and pull forcefully away from" them. Tr. Vol. II p. 78. As police separated Koker from his backpack, he continued to struggle against the officers despite being ordered to "stop resisting[,]" "refused [...] commands to put his arms behind his back," and "attempted to flee on foot." Tr. Vol. II pp. 47, 69.
[¶5] Officers took Koker to the ground to detain him. While on the ground, officers attempted to handcuff Koker, but "he continued to resist [their] efforts to handcuff him." Tr. Vol. II p. 78. Ultimately, it took four officers four minutes to handcuff Koker once he was on the ground. Once officers had subdued Koker, they searched his belongings and discovered a loaded handgun, the serial number of which matched J.T.'s missing handgun.
[¶6] On June 8, 2023, the State charged Koker in Cause Number 02D06-2306-F5-198 ("Cause No. F5-198") with Level 5 felony unlawfully carrying a handgun, Level 5 felony theft, and two counts of Level 6 felony resisting law enforcement. On January 30, 2024, Cause No. F5-198 proceeded to a jury trial. Koker appeared for the first day of trial but failed to appear for the second. The trial court issued a warrant for Koker's arrest, and the State charged him with Level 6 felony failure to appear in Cause Number D02-2402-F6-186. The trial court conducted the remainder of Cause No. F5-198's trial in absentia. The jury found Koker guilty of two counts of Level 6 felony resisting law enforcement, not guilty of theft, and failed to reach a verdict on the unlawful-carrying-of-a-handgun charge. In February of 2024, the State moved to dismiss that charge, which motion the trial court granted.
[¶7] That same month, officers located Koker outside Fort Wayne Rescue Mission. When Koker noticed the officers, he fled on foot until he ran into another officer who took him into custody. The State subsequently charged Koker with Class A misdemeanor resisting law enforcement in Cause Number 02D02-2402-CM-568 ("Cause No. CM-568").
[¶8] In March of 2024, the trial court conducted a sentencing hearing. During the hearing, the trial court identified Koker's criminal history, including three juvenile offenses, eight misdemeanor convictions, and three felony convictions, as an aggravating circumstance. The trial court also noted that prior attempts at rehabilitation had failed, as Koker had had his probation revoked in prior cases. Moreover, Koker had absconded from the second day of his jury trial in Cause No. F6-198 and had resisted law enforcement again when they had located him in February of 2024, leading to another resisting charge in Cause No. CM-568. The trial court "merged" Koker's two convictions for resisting law enforcement and sentenced him to two years of incarceration. Tr. Vol. II p. 177.
Discussion and Decision
[¶9] Koker claims that his sentence is inappropriate in light of the nature of his offense and his character. 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). The role of Rule 7(B) review is "to attempt to leaven the outliers [...] not to achieve a perceived 'correct' result[.]" Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Our review of sentencing decisions is "very deferential[.]" Golden v. State, 862 N.E.2d 1212, 1218 (Ind.Ct.App. 2007), trans. denied. That deference "should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense [...] and the defendant's character[.]" Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶10] Indiana Code section 35-50-2-7(b) provides that a person who is convicted of a Level 6 felony "shall be imprisoned for a fixed term of between six (6) months and two and a half (2%) years with the advisory sentence being one (1) year." In this case, the trial court imposed two-year sentences on Koker's two counts of resisting law enforcement and merged those counts.
[¶11] To start, Koker argues that his sentence is inappropriate considering the nature of his offenses because the officers' injuries were not severe and did not cause them to miss work. That argument, however, misses the point. The force used by a defendant when resisting law enforcement "need not rise to the level of mayhem." Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009). In fact, we have noted that "even a modest level of resistance" may suffice. Id. at 966; see also Johnson v. State, 833 N.E.2d 516, 517 (Ind.Ct.App. 2005). In this case, after police officers stopped Koker outside of J.T.'s apartment, Koker "began immediately, defensively, resisting" and "trying to pull away from the officers." Tr. Vol. II p. 47. Koker "would not allow [the officers] to put him into handcuffs even though multiple officers were commanding him to stop resisting." Tr. Vol. II p. 47. Koker "exerted extreme strength against" the officers, requiring four officers nearly four minutes to subdue and handcuff him. Tr. Vol. II p. 80. During this interaction, several officers suffered abrasions and "another officer sprained his wrist." Tr. Vol. II p. 144. Therefore, we conclude that Koker has failed to establish that his sentence warrants a reduction based on the nature of his offense.
[¶12] We likewise conclude that Koker has failed to establish that his character warrants a reduction in his sentence. As the trial court noted, Koker has a relatively serious criminal history, including three juvenile offenses, eight misdemeanor convictions, and three felony convictions. "Even a minor criminal record reflects poorly on a defendant's character[.]" Reis v. State, 88 N.E.3d 1099, 1105 (Ind.Ct.App. 2017). The trial court also noted that prior rehabilitation efforts have failed, as Koker has previously had his probation revoked. See Kayser v. State, 131 N.E.3d 717, 724 (Ind.Ct.App. 2019) (noting that probation revocations reflect negatively on a defendant's character). Notably, even after the events leading to his convictions in this case, Koker continued to show a lack of respect for the law by absconding from his jury trial and garnering another resisting law enforcement charge in Cause No. CM-568. See Heyen v. State, 936 N.E.2d 294, 305 (Ind.Ct.App. 2010) (concluding that defendant's sentence was not inappropriate in light of his character when he "continue[d] to commit the same crimes again and again"), trans. Denied. Consequently, we cannot say that the nature of Koker's offense or his character warrant a sentence reduction.
[¶13] In addition, we note that the trial court "merged" the convictions for Counts III and IV resisting law enforcement in its sentencing order; however, in that sentencing order the trial court still imposed a two-year sentence on each count. Tr. Vol. II p. 177. "[I]f the trial court does enter judgment of conviction on a jury's guilty verdict, then simply merging the offenses is insufficient and vacation of the offense is required." Kovats v. State, 928 N.E.2d 409, 414-15 (Ind.Ct.App. 2013). Therefore, we remand to the trial court with instructions to vacate the conviction and sentence entered on Count IV for resisting law enforcement.
[¶14] The judgment of the trial court is affirmed and remanded with instructions for further proceedings consistent with this decision.
Crone, J., and Tavitas, J., concur.