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COA finds plea agreement was not circumvented by admission of uncharged conduct at sentencing

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A convicted child molester’s argument that the trial court abused its discretion by admitting during sentencing the testimony of two other alleged victims was rejected by the Indiana Court of Appeals. The court described the appellant’s contention as “pure conjecture supported by nothing in the record.”

The COA affirmed the judgment of the trial court in Clinton Couch v. State of Indiana, No. 48A04-1204-CR-181.  

Couch, 28, befriended 13-year-old D.K., giving assurance that he wanted to be a big brother. However, over the course of several months, Couch molested D.K., took pornographic photographs of him, subjected him to physical violence, and threatened to make him disappear.

On Feb. 27, 2012, in exchange for not filing charges related to other alleged victims who had come forward, Couch pleaded guilty to five counts of Class A felony child molesting, Class C felony child exploitation and Class D felony possession of child pornography.

During the sentencing hearing, two other alleged victims, J.M. and A.B., testified for the state. The trial court did not find this testimony as an aggravating circumstance, instead citing Couch’s violation of trust, the repeated sexual assaults, the pattern of depravity, and that the victim will spend the rest of his life reliving from time to time these assaults.

Couch was sentenced to 40 years of incarceration for each child molesting conviction, eight years for child exploitation, and three years for possession of child pornography. The trial court ordered child molesting Counts I through III to be served concurrently with one another but consecutive to Counts IV and V, which would also be served concurrently with one another. It also ordered the child exploitation sentence to be served consecutively to the child molesting sentences and the possession of child pornography sentenced to be served consecutively with the others. All together, Couch has an aggregate sentence of 91 years. His earliest release date is Sept. 20, 2057.

On appeal, Couch argued that the admission of J.M.’s and A.B.’s testimony amounted to a circumvention of his plea agreement because the trial court allegedly used their testimony to enhance his sentences and order some of them to be served consecutively.

He cited Roney v. State, 872 N.E.2d 192,201 (Ind. Ct. App. 2007) which found if a trial court accepts a plea agreement under which the state agrees to drop or not file charges and then uses facts that give rise to those charges to enhance a sentence, it, in effect, circumvents the plea agreement.

The COA, however, ruled that Couch failed to establish that the trial court abused its discretion. Specifically, the trial court did not find that Couch’s uncharged conduct was an aggravating circumstance that led to enhanced and consecutive sentences. In fact, the lower court did not even mention it in imposing sentence.

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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