COWELLS v. STATE (2025)

MEMORANDUM DECISION

[1] Andrew Cowells appeals the sanction imposed following his violations of community corrections rules. Finding no error in the sanction imposed, we affirm the judgment of the trial court.

Facts and Procedural History

[2] In June 2021, the State charged Cowells with eighteen offenses, including vicarious sexual gratification, child solicitation, possession of child pornography, voyeurism, battery, and harassment. Cowells was a high school teacher, and the victims of most of these offenses were fifteen and sixteen-year-old students. Pursuant to a plea agreement, Cowells pleaded guilty to one count of vicarious sexual gratification, a Level 5 felony; two counts of child solicitation as Level 5 felonies; ten counts of possession of child pornography as Level 6 felonies; and one count of battery, a Class B misdemeanor. The parties agreed to a sentence cap of fifteen years.

[3] Cowells received a fifteen-year aggregate sentence. The trial court sentenced him to three years on each of the three Level 5 felonies, to be served consecutively, and ordered that this portion of the sentence could be served in Michiana Community Corrections (MCC). For six of the ten Level 6 felonies, the court sentenced Cowells to one year each, all suspended to probation and consecutive to one another and his nine-year term in MCC. For the remaining four Level 6 felonies, the court sentenced Cowells to one year each, all suspended to probation and concurrent with each other and the rest of his sentence. Finally, for Cowells’ misdemeanor conviction, the court sentenced him to 180 days suspended, concurrent with the rest of his sentence.

[4] Cowells began serving his sentence in December 2023. In March 2024, MCC filed a notice alleging Cowells violated two rules. One day later, the probation department also filed a notice of violation of rules by Cowells. The parties subsequently filed a joint stipulation in which Cowells acknowledged that his conduct violated the conditions of his placement and the terms of his probation. As a sanction, the court revoked Cowells’ placement in community corrections and ordered him to serve ten years of his sentence in the Department of Correction (DOC) followed by five years of probation. Cowells now appeals.

Discussion and Decision

[5] Cowells contends that the trial court abused its discretion when it imposed a ten-year executed sentence as a sanction. He challenges the sanction as excessive, asserting that his violations were technical but not material.

[6] Community corrections is treated the same as probation in many instances, including that both are a matter of grace left to trial court discretion, not a right to which a defendant is entitled, and that the revocation of both is reviewed on appeal under the same standard. McQueen v. State, 862 N.E.2d 1237, 1243 (Ind. Ct. App. 2007). Accordingly, we review a trial court's sanction for the violation of a community corrections placement under the abuse of discretion standard. See Clemons v. State, 260 N.E.3d 1010, 1015 (Ind. Ct. App. 2025) (setting forth abuse of discretion as standard for reviewing trial court's sanction for revocation of probation). An abuse occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court. Id.

[7] To determine whether the sanction issued by the trial court is appropriate, we consider the severity of the violation. Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013). Additional considerations include the defendant's criminal history, his past violations, and his unwillingness or inability to complete ordered programs. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

[8] Here, Cowells began serving his sentence on December 7, 2023. Just three months later, in March 2024, MCC filed a notice of violation of community corrections’ rules, alleging Cowells had committed unauthorized use of an internet device and engaged in unapproved sexual contact. In addition, the probation department filed a notice of violation, alleging Cowells had possessed (adult) pornography.

[9] We begin with the violation concerning Cowells’ unauthorized use of an internet device. Cowells was required to have remote.com installed on any internet-capable device he used in order to monitor his internet activity. Appellant's App. Confid. Vol. 2, p. 92 (MCC Notice of Violation). The software was installed on Cowells’ iPhone, but, due to software issues, he was instructed to purchase an android phone. Id. He did so on March 17, 2024 and scheduled an appointment for installation of remote.com on March 21. Id. During a home check on March 20, it was discovered that Cowells had taken the SIM card from the iPhone and inserted it into the android phone, which was active and working even though it was not yet being monitored by remote.com. Id. at 93.

[10] Cowells admitted to violating the conditions of his MCC placement by his unauthorized use of an internet device. Tr. Vol. II, p. 13. However, he directed the court to the parties’ joint stipulation, which provided that an examination of the android phone performed by a cyber crimes unit showed that the only internet activity on the phone was related to news, banking, and the functions of the phone itself. Appellant's App. Public Vol. 2, p. 124.

[11] Regarding the unapproved sexual contact, Cowells was not to have any sexual contact or relationships unless approved by his treatment provider. Appellant's App. Confid. Vol. 2, p. 93 (MCC Notice of Violation). In January 2024, Cowells reported having kissed an individual in late December, after he had commenced his sentence. Id. He subsequently admitted that the incident also involved oral sex. Id. This relationship had not been approved by his treatment provider. Id.

[12] At the revocation hearing, Cowells testified that he was in a relationship prior to commencing his sentence and that he had to terminate that relationship due to the terms of his sentence. Tr. Vol. II, pp. 13-14. When Cowells met with the individual to end the relationship, they engaged in sexual conduct. Id. at 14. Cowells admitted that he did not disclose the sexual contact to his therapist at MCC as he was required to do. Id. at 14-15. Cowells admitted that he had violated the terms of his MCC placement. Id. at 15.

[13] As regards the possession of pornography, pornographic photos were discovered on Cowells’ iPhone during the home check on March 20. Appellant's App. Confid. Vol. 2, p. 97 (Violation of Probation Petition). Cowells also admitted to this violation. Tr. Vol. II, p. 10. Through questioning by counsel at the revocation hearing, Cowells explained that he deleted these photos from the photo roll but that they apparently remained on the phone because he had sent the pictures via text message prior to commencing his sentence. Id. at 8-9.

[14] At the end of the revocation hearing, Cowells’ counsel requested the court to set over the sanctions hearing in order to have Cowells’ therapist weigh in on “how she feels about the possibility of Mr. Cowells returning to community[-]based placement and continued therapy with her.” Id. at 17. The State did not object.

[15] The following month, the court held the sanctions hearing and discussed the report from Cowells’ therapist, Jami Presswood. From the outset, the therapist stated that she was “not comfortable stating one way or the other regarding his level of ‘safety’ and returning to the community setting[.]” Appellant's App. Confid. Vol. 2, p. 128 (Therapist's Report).

[16] Yet, she had several illuminating observations just from the brief time she had been treating Cowells. The therapist discussed Cowells’ lack of accountability for his offenses and her concern that he continually blamed his conduct on his mental disorder. Id. The therapist reported:

This writer is concerned with Mr. Cowells[’] continued reports that the psychologist he was seeing continues to blame his mental health for his offending behaviors. As I tell all of my clients, although there may be underlying issues involved at the time of the offense they are not the “cause” of them offending. As there are many people who struggle with undiagnosed mental health disorders and/or addiction issues that never sexually offend.

Id.

[17] She noted that further matters of unease are Cowells’ interactions with minors at his employment, which he believed was not “a big deal,” and his dismissiveness of his fellow therapy group members when they advised him he is forbidden from talking to children and suggested ways to avoid such contact. Id. Finally, the therapist noted Cowells’ opportunity to avoid incarceration and his intelligence and education, but she nevertheless reported that her “biggest concern” is “his inability to understand and follow the rules.” Id.

[18] After highlighting these matters in the report, the court stated that the therapist's report “shed some light” on the violations and that “knowing all the facts now, I still don't consider this a minimal violation.” Tr. Vol. II, p. 32. The court then concluded: “The issue is it seems like, Mr. Cowells, you like most people are trying to push the envelope.” Id. at 34.

[19] Cowells pleaded to fourteen of his eighteen charges and received a mere nine years in community corrections and six years of probation. The court's sentencing order clearly states that it imposed “zero tolerance for the entirety of the sentence” and advised Cowells “of the consequences for failing to abide by those parameters.” Appellant's App. Public Vol. 2, p. 75. Likewise, Cowells’ terms of probation, which he read and signed, put him on notice of the court's expectations: “ZERO tolerance imposed.” Appellant's App. Confid. Vol. 2, p. 79. Yet, Cowells failed to seize on the significant leniency provided by his plea agreement and within just a few short months of commencing his sentence, committed several violations. In addition, he admits committing these violations but justifies them as merely technical rather than material violations. Moreover, his therapist presented several substantial concerns regarding his lack of accountability and refusal to follow the rules.

[20] Once a trial court has exercised its grace by ordering probation or community corrections rather than incarceration, the judge has considerable leeway in deciding how to proceed when conditions are violated. Prewitt, 878 N.E.2d at 188. We cannot say the trial court abused its discretion by revoking Cowells’ community corrections placement and ordering him to serve time in the DOC.

[21] Affirmed.

Shepard, Senior Judge.

Altice, C.J., and Pyle, J., concur.