CAIN v. STATE (2024)

MEMORANDUM DECISION

[1] Jonathan Eugene Cain appeals following his conviction of Level 6 felony motor vehicle theft ¹ and his adjudication as a habitual offender.² Cain asserts his aggregate six-year sentence is inappropriate considering the nature of his offense and his character. We affirm.

Facts and Procedural History

[2] At approximately 12:30 a.m. on May 21, 2023, Ray Nipper arrived at a bar in Lafayette, Indiana, and he parked his moped in the parking lot behind the bar. When Nipper left the bar around 2:15 a.m., his moped was missing. He later reported it stolen. At approximately 11:09 a.m. on May 23, 2023, Nipper's friend Darien Mikels saw Cain pushing Nipper's moped into a parking lot on South Street in Lafayette, and Mikels called the police. Lafayette police confronted Cain, and Cain claimed that he had borrowed the moped from someone named “Matthew.” (App. Vol. 2 at 16.) Nipper arrived on the scene with the moped's registration and keys. Nipper did not know Cain, but he remembered seeing him in the bar. The police arrested Cain and released the moped to Nipper.

[3] On May 24, 2023, the State charged Cain with Level 5 felony motor vehicle theft after having been convicted of automobile theft ³ and Level 6 felony motor vehicle theft. On October 5, 2023, the State moved to amend the charging information to allege Cain qualified for a habitual offender sentence enhancement, and the trial court granted the State's motion.⁴ On October 10, 2023, Cain and the State entered a plea agreement whereby Cain would plead guilty to Level 6 felony motor vehicle theft and admit he qualified for the habitual offender enhancement and the State would dismiss the count alleging Level 5 felony motor vehicle theft. The plea agreement left sentencing to the discretion of the trial court. The trial court then held a change of plea hearing during which Cain entered a plea of guilty to the charge of Level 6 felony motor vehicle theft and admitted his habitual offender status. The trial court accepted Cain's change of plea and entered judgment of conviction.

[4] Dr. Jill Salem, a clinical neuropsychologist, examined Cain on October 14, 2023, and diagnosed him with post-traumatic stress disorder, major depressive disorder, and alcohol use disorder. Dr. Salem examined Cain again on March 26, 2024, after correctional staff at the jail placed him on suicide watch. Dr. Salem noted that, while Cain was not acutely suicidal at the time of her evaluation, “he was not able to provide assurances that he would not harm himself again and indeed, reiterated repeatedly that he ‘can't do this no more’ and is ‘done with life.’ ” (Ex. Vol. 3 at 4.)

[5] The trial court held Cain's sentencing hearing on April 1, 2024. At the hearing, Cain stated: “Your Honor, I'm sorry that I did this crime. I'm trying to get better with my life. I, I'm done being locked up. Just, I just need to get better.” (Tr. Vol. 2 at 52.) Cain asked the trial court to consider as mitigating factors his mental health diagnoses, his guilty plea, and his expression of remorse. Cain also acknowledged his criminal history was an aggravating factor. The State noted Cain's criminal history consisted of seven felony convictions and six misdemeanor convictions. Two of Cain's prior felony sentences were enhanced because of habitual offender findings. The State also explained that Cain had repeatedly failed to abide by the terms of prior periods of probation, as evidenced by nine petitions to revoke resulting in true findings. He also had two placements in community corrections revoked. The State also noted that while Cain pled guilty and expressed remorse, he pled guilty to a lesser included offense and received “substantially more credit time pleading to a Level 6 felony than the charged Level 5.” (Id. at 55.)

[6] The trial court found Cain's criminal history to be an aggravating factor and observed that several of Cain's prior convictions involved “stealing stuff from other people, making them victims of your criminality.” (Id. at 57.) The trial court noted this was Cain's third time being found to be a habitual offender and opined that “it doesn't seem to be an incentive to you knowing that this Habitual Offender can catch up with you in the future. You still just go out and commit these crimes.” (Id. at 56.) The trial court also commented that “it's difficult to say you're a good candidate for Probation because your past conduct shows that you can't follow the rules.” (Id. at 57.) The trial court found Cain's guilty plea, expression of remorse, and “underlying mental health issues” to be mitigating factors. (Id. at 58.) The trial court sentenced Cain to an aggregate six-year term, two years for Level 6 felony motor vehicle theft enhanced by an additional four years because of the habitual offender finding. The trial court ordered Cain to serve his entire sentence incarcerated in the Indiana Department of Correction.

Discussion and Decision

[7] Cain argues his sentence is inappropriate given the nature of his offense and his character. Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence “if, after due consideration of the trial court's decision, [we] find that the sentence is inappropriate in light of the nature of the offense and character of the offender.” Our 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). “In conducting our review, we do not look to see whether the defendant's sentence is appropriate or if another sentence might be more appropriate; rather, the test is whether the sentence is ‘inappropriate.’ ” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), reh'g denied, trans. denied.

[8] “When considering the nature of the offense, we first look to the advisory sentence for the crime.” McHenry v. State, 152 N.E.3d 41, 46 (Ind. Ct. App. 2020). When a sentence deviates from the advisory sentence, “we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence.” Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). The sentencing range for a Level 6 felony is six months to two and one-half years with the advisory sentence being one year. Ind. Code § 35-50-2-7(b). Cain was also subject to a sentence enhancement of two to six years because of his adjudication as a habitual offender. Ind. Code § 35-50-2-8(i). Thus, Cain's six-year sentence is slightly over mid-way between the minimum possible sentence of two-and-a-half years and the maximum possible sentence of eight-and-a-half years.

[9] As for the nature of his offense, Cain characterizes his theft as “de minimis” and asserts “[t]here is not anything particularly aggravating about the nature of this offense.” (Appellant's Br. at 10 & 12.) However, while the nature of Cain's offense in this particular case was not more egregious than the “typical” version of the offense, we cannot overlook that it was part of a larger pattern of theft offenses and criminal behavior. Moreover, Cain's sentence is in the middle of the possible range the trial court could have imposed which does not strike us as inappropriate for a “typical” offense.

[10] “When considering the character of the offender, one relevant fact is the defendant's criminal history.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Cain's history of seven prior felony convictions includes two prior convictions of motor vehicle theft, two other felony theft convictions, and a conviction of receiving stolen automobile parts. In addition, Cain's history of six misdemeanor convictions includes convictions of theft and conversion. Moreover, as the trial court explained, even though two of Cain's prior felony sentences were enhanced because of habitual offender adjudications, Cain continued to commit crimes after being released from incarceration. In addition, Cain was on probation at the time he committed the instant offense, and nine past petitions to revoke his probations had resulted in true findings.

[11] Cain argues his sentence is inappropriate because he was abused as a child and spent much of his childhood in foster care. Yet, as our Indiana Supreme Court explained in Hancz-Barron v. State, “evidence of a difficult childhood is entitled to little, if any, mitigating weight.” 235 N.E.3d 1237, 1249 (Ind. 2024) (quotation marks omitted). Cain also has several health issues, including dwarfism, post-traumatic stress disorder, major depressive disorder, alcohol use disorder, and a learning disability. However, Cain does not argue that there was a nexus between these health issues and his crimes. See, e.g., id. (holding defendant's sentence was not inappropriate when he did not present evidence of a nexus between his mental health issues and his crimes). Moreover, while Cain received treatment for his substance abuse issues in the past, he continued to abuse alcohol, which does not reflect well on his character. See, e.g., Pedigo v. State, 146 N.E.3d 1002, 1016 (Ind. Ct. App. 2020) (holding defendant's sentence was not inappropriate when he failed to complete outpatient therapy to address his substance abuse issues and continued to abuse drugs), trans. denied. Therefore, we hold Cain's six-year executed sentence is not inappropriate given his extensive criminal history and past failures to abide by the terms of less restrictive placements. See, e.g., Slater v. State, 223 N.E.3d 298, 306 (Ind. Ct. App. 2023) (holding defendant's aggregate eight-year sentence was not inappropriate even though his offenses were “not particularly heinous” because of his extensive criminal history), trans. denied.

Conclusion

[12] Neither the nature of Cain's offense nor his character, which includes a lengthy criminal history, renders his six-year sentence inappropriate. Accordingly, we affirm.

[13] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-4-2(a)(1)(B) (2022).

2.   Ind. Code § 35-50-2-8(d) (2017).

3.   Ind. Code § 35-43-4-2(a)(2)(C).

4.   Cain agreed during plea negotiations that the State could file the habitual offender information.

May, Judge.

Tavitas, J., and DeBoer, J., concur.