KOLLER v. STATE (2024)

MEMORANDUM DECISION

[1] Jody Koller appeals his sentence following his convictions for Level 5 felony resisting law enforcement with a vehicle and Level 6 felony possession of methamphetamine. Koller presents two issues for our review:

1. Whether the trial court abused its discretion when it sentenced him.

2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] On February 9, 2023, Koller was driving a silver BMW displaying a license plate that was registered to a black Audi. An off-duty police officer called Lawrenceburg Police Department Officer Greg Cannon to report that he “believed” the driver to be Koller, whom he knew to have a suspended license and an arrest warrant. Appellant's App. Vol. 2, p. 20. The off-duty officer stated that Koller was parked at a gas station off of U.S. 50.

[4] Officer Cannon arrived at the scene and saw Koller turn onto U.S. 50. Officer Cannon followed him and attempted to initiate a traffic stop, but Koller did not stop his car. Assisting officers put down “stop sticks” at several locations, but Koller continued driving. Id. Koller finally drove through a cow pasture, stopped his car, and got out and ran from Officer Cannon. Officer Cannon and his K-9 unit pursued Koller, who finally gave up the chase. After detaining Koller, Officer Cannon had the silver BMW towed. During an ensuing search of the car, Officer Cannon found, among other things, approximately six grams of methamphetamine, “several cut straws,” a digital scale, and oxycodone. Id. at 45.

[5] The State charged Koller with Count 1, Level 5 felony resisting law enforcement with a vehicle; Count 2, Level 6 felony resisting law enforcement with the vehicle; Count 3, Class A misdemeanor resisting law enforcement; Count 4, Level 5 felony possession of methamphetamine; Count 5, Level 6 felony possession of methamphetamine; Count 6, Level 6 felony possession of a narcotic drug; Count 7, Class C misdemeanor possession of paraphernalia; Count 8, Level 6 felony possession of a legend drug; and Count 9, Class B misdemeanor criminal mischief. In addition, the State alleged that Koller was a habitual offender. The State subsequently dismissed Count 4.

[6] In January 2024, Koller pleaded guilty to Level 5 felony resisting law enforcement with a vehicle and Level 6 felony possession of methamphetamine. In exchange for his plea, the State dismissed the remaining charges. Koller agreed to leave his sentence to the trial court's discretion. At sentencing, the trial court identified the following aggravators: Koller's criminal history, including seven prior felonies, seven prior misdemeanors, eight prior probation violations, two violations of community corrections; that Koller was on probation at the time of the instant offenses; and the nature and circumstances of the offenses. The court identified the following mitigators: his guilty plea; his remorse; and his substance abuse and “recent attempt at rehabilitation.” Id. at 162.

[7] The trial court found that the aggravators “significantly outweigh[ed]” the mitigators and ordered Koller to serve consecutive sentences of six years for the Level 5 felony conviction and two years for the Level 6 felony conviction, for an aggregate eight-year sentence. Id. at 163. This appeal ensued.

Discussion and Decision

Issue One: Abuse of Discretion

[8] Koller contends that the trial court abused its discretion when it sentenced him. Sentencing decisions rest within the sound discretion of the trial court, and we review such decisions for an abuse of discretion. Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App. 2019). “An abuse of discretion will be found where the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. For example, a trial court may abuse its discretion by:

(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law.

Id. “In cases where the trial court has abused its discretion, we will remand for resentencing only ‘if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.’ ” Bryant v. State, 959 N.E.2d 315, 322 (Ind. Ct. App. 2011) (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007)).

[9] Again, here, at sentencing, the trial court identified the following aggravators: Koller's criminal history, including seven prior felonies, seven prior misdemeanors, eight prior probation violations, two violations of community corrections; that Koller was on probation at the time of the instant offenses; and the nature and circumstances of the offenses. The court identified the following mitigators: his guilty plea; his remorse; and his substance abuse and “recent attempt at rehabilitation.” Appellant's App. Vol. 2, p. 162. The trial court found that the aggravators “significantly outweigh[ed]” the mitigators and ordered Koller to serve consecutive sentences of six years for the Level 5 felony conviction and two years for the Level 6 felony conviction, for an aggregate eight-year sentence. Id. at 163.

[10] Koller first argues that the trial court abused its discretion when it imposed consecutive sentences because, he asserts, his offenses constituted “a single episode of criminal conduct” under Indiana Code section 35-50-1-2. Appellant's Br. at 13. He appears to acknowledge that, because resisting law enforcement is a crime of violence, his convictions are exempt from the statutory cap under that statute. And Koller maintains that, because the trial court had the “authority” to impose concurrent sentences under the statute, it was an abuse of discretion to impose consecutive sentences. Reply Br. at 6. Koller's argument on this issue is not well taken.

[11] Koller next argues that the trial court abused its discretion when it did not give more weight to certain proffered mitigators. It is well settled that “[a] 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.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. denied. “A trial court does not err in failing to find a mitigating factor where that claim is highly disputable in nature, weight, or significance.” Id. “An allegation that a trial court abused its discretion by failing to identify or find a mitigating factor requires the defendant on appeal to establish that the mitigating evidence is significant and clearly supported by the record.” Id.

[12] Koller's argument on this issue is vague, and he certainly has not sustained his burden to establish that his mitigating evidence is significant and clearly supported by the record. See id.

[13] For all these reasons, we cannot say that the trial court abused its discretion when it sentenced Koller.

Issue Two: Appellate Rule 7(B)

[14] Koller also contends that his sentence is inappropriate in light of the nature of the offenses and his character. The trial court imposed the maximum sentence of six years for the Level 5 felony conviction, Ind. Code § 35-50-2-6, and a less-than-maximum sentence of two years for the Level 6 felony conviction, Ind. Code § 35-50-2-7. The court ordered the sentences to run consecutively.

[15] Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “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). Sentence modification under Rule 7(B), however, is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam).

[16] When conducting this review, we generally defer to the sentence imposed by the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Our role is to “leaven the outliers,” not to achieve what may be perceived as the “correct” result. Id. Thus, deference to the trial court's sentence will prevail unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense—such as showing restraint or a lack of brutality—and the defendant's character—such as showing substantial virtuous traits or persistent examples of positive attributes. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam); Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[17] Koller acknowledges the “seriousness of his criminal conduct,” but he asserts that the facts and circumstances are “typical” of those offenses. Appellant's Br. at 10-11. He maintains that his conduct was not “beyond the pale” and that his remorse supports a sentence revision. Id. at 11. And Koller argues that his character supports a sentence revision because he was the victim of childhood abuse and because there was testimony that he protected his sister and her children from harm. Koller suggests that he would “benefit” from a term of probation. Id. at 12. Thus, he argues that, rather than imposing a fully-executed sentence, the trial court should have suspended some portion of his aggregate sentence to probation.

[18] Koller has not shown that this is the “rare and exceptional” case where a sentence revision is warranted. See Livingston, 113 N.E.3d at 612. The nature of the offenses includes the fact that Officer Cannon's K-9 unit sustained an injury when the dog got “stuck on an electric fence” during the pursuit of Koller. Appellant's App. Vol. 2, p. 44. And, as the State points out, Koller caused significant property damage when he drove through several fences. Further, Koller's bad character is reflected by his criminal history, which includes seven prior felonies, seven prior misdemeanors, eight prior probation violations, and two violations of community corrections. Given Koller's failure to take advantage of so many prior alternative sentencing opportunities, we cannot say that his fully-executed eight-year sentence is inappropriate.

[19] Affirmed.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.