Joseph F. Cotter, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] While on probation, Joseph Cotter got high on heroin and methamphetamine, stole a moped, discarded it, and then stole a vehicle. Cotter pled guilty to two counts of auto theft but failed to appear at his sentencing hearing. Once apprehended, the trial court sentenced Cotter to a total of four years imprisonment and ordered him to pay restitution. Cotter now appeals and raises one issue for our review: Whether Cotter's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] In July 2022, Cotter was on probation for auto theft. On July 28, while high on heroin and methamphetamine, Cotter used a screwdriver to steal a moped in Miami County, Indiana, which he drove to get to a red Jeep Wrangler. After Cotter abandoned the moped in a corn field, he stole the Jeep; removed the Jeep's license plate, doors, and hard top; and paid $700 to have the Jeep spray painted black.

[4] Cotter was charged with and pled guilty to two counts of auto theft as Level 6 felonies. In exchange for his plea, the State agreed to not request a sentence enhancement based on Cotter's prior auto theft conviction. Cotter's sentence was left to the trial court's discretion, but he failed to appear at his May 12, 2025, sentencing hearing. On June 26, Cotter was arrested in another county for drug-related offenses.

[5] Once Cotter was arrested, the trial court was able to conduct a sentencing hearing in January 2026. At the hearing, Cotter testified that he had been sober and employed for “a year and a half” prior to May 2025. Tr. Vol. II at 41. Cotter attributed his relapse to his sister's death. The trial court sentenced Cotter to a total of four years of incarceration and ordered him to pay $7,548.57 in restitution. This appeal ensued.

Discussion and Decision

Cotter's Sentence Is Not Inappropriate under Appellate Rule 7(B)

[6] Cotter argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Tillett v. State, 278 N.E.3d 359, 366 (Ind. 2026) (citing Ind. Const. art. 7, §§ 4, 6), reh'g denied (July 9, 2026). That authority is implemented through Appellate Rule 7(B). The defendant must produce compelling evidence that the sentence is inappropriate based on the nature of the offense, the defendant's character, or both. Id. (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)); Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)).

[7] Whether a sentence is inappropriate “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.” Tillett, 278 N.E.3d at 366 (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)). “[W]e are not limited to the mitigators and aggravators found by the trial court,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and we focus on the aggregate sentence rather than its components, Lane, 232 N.E.3d at 122 (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Considering the trial court's wide discretion on sentencing matters, only “exceptional cases” warrant sentence revisions, Tillett, 278 N.E.3d at 366 (quoting Russell v. State, 234 N.E.3d 829, 856 (Ind. 2024), cert. denied).

[8] A trial judge may impose any sentence within the statutory range without regard to the existence of aggravating or mitigating factors. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007), as amended (July 10, 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer, 868 N.E.2d at 494). Here, Cotter was convicted of and sentenced on two Level 6 felonies. “A person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year.” Ind. Code § 35-50-2-7(b) (emphasis added). On each of his two Level 6 felony convictions, the trial court sentenced Cotter to two years executed at the Indiana Department of Correction (“DOC”). The trial court ordered Cotter to serve these sentences consecutively, for a total of four years executed at the DOC.

[9] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality.” Tillett, 278 N.E.3d at 366 (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[10] Cotter stole and damaged a moped and a vehicle. While theft is not the worst of the worst type of offense, Cotter did more than simply steal two vehicles, he also damaged them. Cotter damaged the moped by sticking a screwdriver in its ignition to steal it; he damaged the vehicle by having it spray painted. Cotter's destructive actions were more than a typical auto theft requires.

[11] In considering the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Tillett, 278 N.E.3d at 366 (quoting Stephenson, 29 N.E.3d at 122).

[12] Not even considering his juvenile record, which is not minimal, Cotter has been convicted of 12 felonies—including convictions for auto theft, theft, and burglary—and 10 misdemeanors. Cotter has also frequently violated the terms of his probation or other supervisory programs, including a drug court program. In fact, Cotter committed the instant offenses while on probation for auto theft. Cotter began using illegal drugs when he was 12 years old, and he has been addicted to heroin and methamphetamine since he was 20 years old. Despite numerous treatment opportunities, Cotter continued to possess and use illegal drugs.

[13] In his presentence investigation report, Cotter reported that he has ADHD and has experienced anxiety and depression after family members’ deaths. Cotter contends that these “significant mental health issues” warrant a downward revision of his sentence. Appellant's Br. at 10. Assuming arguendo that this contention has merit, it is not enough to cast Cotter's character in a favorable light. Nor is Cotter's guilty plea particularly mitigating given his failure to appear and commission of other crimes while this case was pending.

[14] Based on the nature of Cotter's offenses and his extensive history of criminal or otherwise deviant conduct, we cannot say that Cotter has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Lane, 232 N.E.3d 119. We therefore affirm Cotter's sentence.

[15] Affirmed.

Felix, Judge.

Foley, J., and DeBoer, J., concur.