Cook v. State

1

Chivis Cook, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 22A-CR-3023

Court of Appeals of Indiana

November 29, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Floyd Superior Court The Honorable Carrie K Stiller, Judge Trial Court Cause No. 22D01-2109-F1-1503

ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana.

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis Indiana.

MEMORANDUM DECISION

Kenworthy, Judge.

Case Summary

[¶1] The State charged Chivis Cook with Level 1 felony attempted murder,^[1] two counts of Level 5 felony criminal recklessness,^[2] and Class A misdemeanor resisting law enforcement.^[3] The State sought a sentencing enhancement for Cook's use of a firearm during the offense.^[4] Under the terms of his plea agreement, Cook pleaded guilty to one count of Level 5 criminal recklessness and left sentencing to the discretion of the trial court. In exchange, the State agreed to dismiss the other charges and sentence enhancement. The trial court accepted the plea agreement and sentenced Cook to six years, with five years served in the Indiana Department of Correction and one year suspended to probation.

[¶2] Cook now appeals, raising two issues for our review:

1. Did the trial court abuse its discretion when sentencing Cook?

2. Is Cook's sentence inappropriate in light of the nature of the offense and Cook's character?

[¶3] Determining the trial court did not abuse its discretion and Cook's sentence is not inappropriate, we affirm.

Facts and Procedural History

[¶4] Around 8:00 p.m. on Friday, September 10, 2021, Cook was purchasing food at Rally's restaurant, located at the intersection of Vincennes Street and Spring Street in New Albany, Indiana. Jacob Cline and his friend were also at Rally's. Cook and Cline appeared to have a friendly interaction at the walk-up window. As they were leaving the restaurant, Cline "walked up to [Cook] and punched him." Tr. Vol. 1 at 44. Cline later told a detective during an interview he "decided to fight [Cook.]" Id. at 45. Cook pointed a gun at Cline and fired six shots in his direction. Two off-duty police officers who happened to be at a tattoo parlor across the street ran to Cook and arrested him.

[¶5] The State charged Cook with Level 1 felony attempted murder two counts of Level 5 felony criminal recklessness, and Class A misdemeanor resisting law enforcement. Later, the State amended Cook's charging information, adding a firearm sentencing enhancement.

[¶6] Cook entered a plea agreement with the State in which Cook pleaded guilty to one count of Level 5 criminal recklessness and left sentencing to the discretion of the trial court. In exchange, the State agreed to dismiss the other charges and sentencing enhancement.

[¶7] At Cook's sentencing hearing, the State argued Cook "was at a high risk level to reoffend" because he "was a party to a battery within the jail in July [2022]." Id. at 48. The State also played surveillance videos of the shooting. Several witnesses testified there were multiple people and vehicles near Cook, including "a person working the drive-thru," "someone [in a vehicle] in the drive thru," Cline's friend standing next to him, "[m]ultiple cars going around," a "little girl at the Rally's," and "two . . . people walking a dog." Id. At 30-31, 64-65. Several businesses were near Rally's, including the Reisz Building, a barber shop, a tattoo parlor, and the Calumet Club, which hosts weddings and other events. Spring Street is a "main thoroughfare" and is "utilized quite frequently on a Friday[.]" Id. at 29.

[¶8] The trial court considered applicable aggravating and mitigating factors under Indiana Code Section 35-38-1-7.1(a) and (b). The trial court accepted the plea agreement and sentenced Cook to six years, with one year suspended to probation.

[¶9] Cook now appeals. Additional facts are provided as necessary.

1. The trial court did not abuse its discretion when sentencing Cook.

[¶10] Cook argues the trial court abused its discretion "when it considered Cook's criminal history and the nature and circumstances of the crime as aggravating circumstances." Appellant's Br. at 9. Specifically, Cook argues "the major reason the trial court found Cook's criminal history aggravating was because it concluded that one of Cook's felonies was for possessing a concealed weapon under cause number 18-F-9693." Id. at 12. And, "even if the trial court correctly ascertained that the conviction was for a felony," it failed to correctly weigh Cook's prior convictions. Id. at 13. Cook also argues the trial court erred by using the material elements of the crime as aggravators-"that Cook discharged a weapon" and "that Cook created a 'highly dangerous situation.'" Id. at 15.

[¶11] We review a trial court's sentencing decisions for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A trial court abuses its discretion at sentencing if it (1) fails to enter a sentencing statement; (2) relies on aggravating or mitigating factors not supported by the record; (3) fails to find aggravating or mitigating factors that are supported by the record and advanced for consideration; or (4) relies on reasons that are improper as a matter of law. Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). "Because the trial court no longer has any obligation to 'weigh' aggravating and mitigating factors against each other when imposing a sentence, . . . a trial court can not now be said to have abused its discretion in failing to 'properly weigh' such factors." Anglemyer, 868 N.E.2d at 491.

[¶12] "Generally, the 'nature and circumstances' of a crime is a proper aggravating circumstance." McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). But "[w]here a trial court's reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is 'improper as a matter of law.'" Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491).

[¶13] Cook argues the trial court relied on an improper aggravator^[5] by mischaracterizing Cook's prior conviction for possession of a concealed weapon as a felony when it should have been a misdemeanor. We disagree. The trial court did not definitively conclude the conviction was for a felony offense. Rather, the court expressed uncertainty about whether the offense was a felony.^[6] And the trial court did not appear to rely on whether the offense was a felony; instead, it focused on the similarity of that offense to the offense before it.^[7]

[¶14] Cook then claims that even if the trial court correctly decided the conviction was for a felony, it articulated the incorrect legal standard for determining whether a criminal history is aggravating. He argues "whether a defendant's [sentence] should be enhanced based upon prior convictions turns on the weight of those convictions." Appellant's Br. at 13.

[¶15] For this claim, Cook relies solely on Duncan v. State, 857 N.E.2d 955, 959 (Ind. 2006), a decision handed down before our Legislature passed Indiana Code Section 35-38-1-7.1(a)(2).^[8] Indiana Code Section 35-38-1-7.1(a)(2) permits the trial court to consider a person's history of criminal or delinquent behavior as an aggravator. Therefore, a defendant's criminal history may always be considered an aggravating factor. Cook essentially argues the trial court failed to ascribe the correct weight to Cook's prior convictions; this argument is not supported by current law. See Ind. Appellate Rule 46(A)(8)(a); see also Anglemyer, 868 N.E.2d at 491.

[¶16] Next, Cook claims the trial court abused its discretion by considering material elements of the offense as aggravators. He correctly notes a trial court may not use a factor comprising a material element of an offense as an aggravating circumstance. See Henderson v. State, 769 N.E.2d 172, 180 (Ind. 2002). But "a court may look to the particularized circumstances of the criminal act." Id. That is, "[a]lthough the particular manner in which a crime is committed may constitute an aggravating factor, a trial court should specify why a defendant deserves an enhanced sentence under the particular circumstances." Id. (Internal citations omitted.)

[¶17] The elements of Cook's offense are outlined in the charge against him:

Chivis J. Cook did recklessly, knowingly, or intentionally perform an act that created a substantial risk of bodily injury to another person by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather, to wit: an alley where Jacob Cline was standing.

[¶18] Appellant's App. Vol. 2 at 34. Cook points to the trial court's language during sentencing: "And the State also requested the Court to take additional aggravating factors into consideration in this case .... That being the, uh, discharge of a weapon in a public area with many people actively in the . . . area being, um, a highly dangerous situation[.]" Tr. Vol. 1 at 85. Cook argues the trial court "expressly found as aggravating the fact that Cook discharged a weapon." Appellant's Br. at 15. And Cook says the creation of a "highly dangerous situation" is inherent in the elements of firing a weapon in an area where people are likely to congregate and creating a risk of substantial bodily injury to another person. Id. at 15-16.

[¶19] ...