MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as Jul 28 2017, 5:59 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata, CLERK
Indiana Supreme Court
collateral estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark J. Cottey, July 28, 2017
Appellant-Defendant, Court of Appeals Case No.
20A03-1701-CR-148
v. Appeal from the Elkhart Circuit
Court.
The Honorable Michael A.
State of Indiana, Christofeno, Judge.
Appellee-Plaintiff. Trial Court Cause No.
20C01-1102-FB-7
Sharpnack, Senior Judge
Statement of the Case
[1] Mark J. Cottey appeals the denial of his motion for sentence modification. We
affirm.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-CR-148 | July 28, 2017 Page 1 of 4
Issue
[2] Cottey raises one issue, which we restate as: whether the trial court abused its
discretion in denying Cottey’s motion.
Facts and Procedural History
[3] In 2011, the State charged Cottey with three counts of armed robbery, all Class
B felonies. Cottey had driven an acquaintance to several convenience stores,
where the acquaintance robbed a total of three people at gunpoint. The
acquaintance discharged the gun during one of the robberies.
[4] On September 14, 2011, Cottey and the State signed a plea agreement. Per the
terms of the agreement, Cottey would receive a stipulated total sentence of
thirty-five years, with ten years suspended to probation. The agreement further
provided, “The State shall confer jurisdiction to the [trial court] to consider a
modification in calendar year 2016.” Appellant’s App. Vol. 2, p. 18. The trial
court accepted the plea agreement and sentenced Cottey according to its terms.
[5] On December 5, 2016, Cottey filed a motion for sentence modification, asking
to be placed in a home detention program. The court denied the motion
without a hearing but ordered a status report from the Indiana Department of
Correction, indicating that the court could change its mind depending upon the
contents of the report. After receiving the report, the court reaffirmed its denial
of Cottey’s motion for sentence modification, citing his “substantial conduct
violation history” while incarcerated. Id. at 7. Cottey filed a motion to
reconsider, which the court denied. This appeal followed.
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Discussion and Decision
[6] Upon a defendant’s motion, a trial court may “reduce or suspend” a sentence
after reviewing a report from the Indiana Department of Correction. Ind. Code
§ 35-38-1-17 (2010). We review a trial court’s decision on a motion for sentence
modification for abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196
(Ind. 2010). An abuse of discretion occurs when the trial court’s decision “is
clearly against the logic and effect of the facts and circumstances or it is a
misinterpretation of the law.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
[7] Cottey argues the trial court misstated his prison conduct record because he had
only one violation, in 2013. He further argues the violation was minor in
nature and is outweighed by his many achievements while incarcerated.
Specifically, Cottey obtained his GED, completed an apprenticeship job
training program, and completed many programs for self-improvement. In
addition, he claims he has a support network that will assist him once he leaves
prison and that he is remorseful for his crimes.
[8] The State responds that Cottey’s conduct while incarcerated must be considered
in perspective with his criminal offenses and his sentence. We agree. See
Marshall v. State, 563 N.E.2d 1341, 1344 (Ind. Ct. App. 1990) (post-
incarceration conduct should be balanced against sentencing considerations in
considering a motion for sentence modification), trans. denied. Cottey pleaded
guilty to three counts of armed robbery, all Class B felonies. As the trial court
noted during a pretrial hearing, “It’s a pretty serious situation.” Tr. Vol. II, p.
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5. Despite the severity of the crimes, the parties negotiated a plea agreement,
and Cottey received an executed sentence of twenty-five years (plus ten to be
served on probation), well short of the maximum possible sentence of sixty
years. See Ind. Code § 35-50-2-5 (2005) (twenty years is the maximum sentence
for a Class B felony). At the sentencing hearing, the prosecutor stated he had
agreed to the lesser sentence due to Cottey’s relatively minor criminal record,
his young age, and his lesser degree of participation in the robberies.
[9] Considering Cottey’s relatively short executed sentence and the opportunity
that was granted to him to seek a sentence modification in 2016, it was not
unreasonable for the trial court to hold Cottey to a high standard of conduct
while imprisoned. Cottey’s efforts to improve himself and correct his behavior
are commendable, but we cannot conclude the trial court acted against the logic
and effects of the facts and circumstances before it by denying Cottey’s motion
for sentence modification.
Conclusion
[10] For the reasons stated above, we affirm the judgment of the trial court.
[11] Affirmed.
Pyle, J., concurs.
Robb, J., dissents without opinion.
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