Tye E. McCown, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] Tye E. McCown appeals his six-year advisory sentence for Level 4 felony unlawful possession of a firearm by a serious violent felon, arguing it is inappropriate. We affirm.

Facts and Procedural History

[2] In November 2020, the State charged McCown with Level 4 felony unlawful possession of a firearm by a serious violent felon and Class A misdemeanor resisting law enforcement after an incident at CVS in Alexandria.¹ McCown was released on pretrial supervision. Thereafter, McCown failed to report to appointments with his pretrial release officer on March 12, March 14, and April 7, 2021. The State moved to revoke McCown's pretrial release. The trial court scheduled a hearing for April 20, but McCown failed to appear. The court scheduled a second hearing for May 18. McCown failed to appear again, and a warrant was issued for his arrest.

[3] Two years later, in May 2023, McCown was arrested on the warrant. McCown told the trial court that he didn't “show up” for two years because he was “getting high.” Tr. Vol. II p. 25. During those two years, McCown was charged with offenses in two separate cases. In February 2023, he was charged with Level 6 felony neglect of a dependent, and that case is still pending.² In March 2023, he was charged with Class A misdemeanor false-identity statement. He pled guilty and was sentenced to fifty days in jail.

[4] A jury trial in this case was scheduled for November 2023. On the morning of trial, McCown agreed to plead guilty as charged. The State said it would recommend six years executed in the Indiana Department of Correction (DOC).

[5] At the sentencing hearing, evidence was presented that McCown, age forty-one, had eight felony convictions, eight misdemeanor convictions, and one juvenile adjudication. Evidence was also presented that McCown had violated his probation in five cases (and twice in two of the cases). McCown testified about his decades-long drug problem. He admitted using drugs “all day, everyday” and that the only time he didn't use drugs was when he was “incarcerated.” Id. at 74, 77. McCown asked to be placed on community corrections with a drug-treatment component. As agreed, the State recommended six years in the DOC. The court found:

[T]he primary aggravator the court sees here, it's your criminal history. I mean you've got eight (8) prior felonies and you're engaged in the conduct that you engaged [in] here is a little bit hard to figure. And you talked about how you matured, and you want to steer your life in another direction. And I commend you for that ․ But the reality is, you've gotta pay the price for what you did before you had turned that corner. And [an] additional aggravator being that you have also recently violated conditions of supervision. I will find that you did plead guilty and accept responsibility here and save the State ․ some of the burden of a trial. That is entitled to less weight here than it might be in other circumstances because it was the morning of trial, after the State had engaged in all its trial prep, and jurors were present and lawyers had prepped the case, and the court had prepared for trial as well.

Id. at 80-81. The court acknowledged that the probation department had recommended eight years, with four years in the DOC, two years on community corrections, and two years suspended to probation. However, it found that because McCown didn't live in Madison County and had cases pending in other courts, it didn't want to “bind” him to supervision in Madison County after his release from the DOC. Id. at 81. Because of that, the court said it was giving McCown “a shorter sentence than [it] originally had anticipated,” but it would be “in the form of purely executed time at the DOC.” Id. Accordingly, the court sentenced McCown to six years in the DOC for the Level 4 felony conviction and no time for the Class A misdemeanor conviction (just fines and costs).

[6] McCown now appeals.

Discussion and Decision

[7] McCown contends that his six-year sentence for Level 4 felony unlawful possession of a firearm by a serious violent felon is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that an appellate court “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.” The appellate court's role under Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (quotation omitted). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[8] The sentencing range for a Level 4 felony is two to twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. Here, the trial court sentenced McCown to the advisory term of six years to be served in the DOC. When a trial court imposes an advisory sentence, the defendant bears “a particularly heavy burden” in persuading us that his sentence is inappropriate. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[9] McCown has failed to meet that heavy burden here. While we agree with McCown that there is nothing egregious about his particular offense, his character supports the trial court's sentence. As McCown concedes, he has a “substantial criminal history,” which includes eight felonies and eight misdemeanors. Appellant's Br. p. 6. In addition, he has violated his probation in five cases. Although McCown claims that “[a]bsent his initial brief fleeing from police, [he] was immediately cooperative and owned up to his role and took responsibility,” id. at 10, the record belies this, as he violated the conditions of his pretrial release in this case, delayed this case by two years while he was “getting high,” and was arrested twice while this case was pending. We acknowledge that McCown pled guilty, but as the trial court noted, he didn't do so until the morning of trial. As McCown highlights, the trial court didn't order a part of his sentence to be served on community corrections like probation recommended. However, the court thoughtfully explained why it didn't do so.³ McCown has failed to persuade us that his advisory sentence is inappropriate.

[10] Affirmed.

FOOTNOTES

1.   McCown was also charged with Level 4 felony possession of methamphetamine, Level 6 felony possession of a narcotic drug, Level 6 felony auto theft, Class A misdemeanor carrying a handgun without a license, Class C misdemeanor possession of paraphernalia, and being a habitual offender. The State later dismissed these charges.

2.   This case is currently set for a jury trial on August 27, 2024. See Cause No. 27D02-2302-F6-96.

3.   McCown claims that he won't be able to address his substance-abuse problem in the DOC. However, he cites nothing to support this.

Memorandum Decision by Judge Vaidik

Judges Weissmann and Foley concur. Weissmann, J., and Foley, J., concur.