Judd Michael Hopkins v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Dec 20 2017, 11:35 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Judd Michael Hopkins, December 20, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1706-CR-1456
v. Appeal from the Vigo Superior
Court
State of Indiana, The Hon. Sarah K. Mullican, Judge
Trial Court Cause No.
Appellee-Plaintiff.
84D03-1606-F1-1526
Bradford, Judge.
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Case Summary
[1] Between August of 2015 and June of 2016, Appellant-Defendant Judd Hopkins
had sexual intercourse with his girlfriend’s daughter, who was five or six years
old at the time. Hopkins pled guilty to one count of Level 1 felony child
molesting in exchange for dismissing two other charges and capping his
sentence at thirty years of incarceration, which is the sentence the trial court
imposed. Hopkins contends that the trial court abused its discretion in
sentencing him and that his sentence is inappropriately harsh. Because we
disagree with both contentions, we affirm.
Facts and Procedural History 1
[2] Between August 11, 2015, and June 2, 2016, K.B.’s mother would drop K.B. off
at Hopkins’s sister’s house so that the sister could watch K.B. while K.B.’s
mother worked. K.B. was five to six during this time. K.B.’s mother was
dating Hopkins. Hopkins was present at his sister’s house, and often, the sister
would take naps and leave the care of K.B. to Hopkins. While the sister was
asleep, Hopkins molested K.B. on numerous occasions. Hopkins would
remove K.B.’s pants and underwear and then Hopkins would “‘get on top of
her, and put his private area inside [her.]’” Appellant’s App. Vol. II p. 104.
1
The factual basis established at the guilty plea hearing only consisted of a reading of the charge to which
Hopkins pled guilty. (Tr. Vol. II p. 9). The underlying facts of Hopkins’s crimes are therefore largely derived
from the probable cause affidavit attached to the presentence investigation report. Hopkins does not object to
this use of the probable cause affidavit.
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While Hopkins’s “private parts” were inside K.B., he would “start taking it in
and out[,]” which K.B. demonstrated as a thrusting back and forth motion with
her hips. Appellant’s App. Vol. II p. 104. Despite K.B. asking Hopkins to stop
each time, Hopkins would not and did not stop. On June 2, 2016, K.B. was
complaining of genital pain and her mother noticed a lesion on her pubic area.
K.B. was taken to Peyton Manning Hospital and diagnosed with genital
herpes.2
[3] On June 9, 2016, the State charged Hopkins with two counts of Level 1 felony
child molestation and one count of Level 4 felony child molestation. On April
20, 2017, Hopkins entered into a plea agreement pursuant to which he pled
guilty to one count of Level 1 felony child molestation in exchange for the
dismissal of the other two counts and an agreement that his executed term of
imprisonment would not exceed 30 years. On May 30, 2017, the court imposed
a thirty-year executed sentence. The trial court found, as aggravating
circumstances, (1) the harm, injury, or loss was greater than required to prove
the crime; (2) Hopkins’s criminal history; (3) Hopkins’s recent violation of the
terms of probation; (4) and Hopkins was in a position of care of, custody of, or
control over K.B.
2
It is unclear how K.B. contracted genital herpes.
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Discussion and Decision
I. Abuse of Discretion
[4] Under our current sentencing scheme, “the trial court must enter a statement
including reasonably detailed reasons or circumstances for imposing a
particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the
sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the
decision is clearly against the logic and effect of the facts and circumstances.”
Id.
[5] A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at
all[,]” (2) enters “a sentencing statement that explains reasons for imposing a
sentence–including a finding of aggravating and mitigating factors if any–but
the record does not support the reasons,” (3) enters a sentencing statement that
“omits reasons that are clearly supported by the record and advanced for
consideration,” or (4) considers reasons that “are improper as a matter of law.”
Id. at 490–91. If the trial court has abused its discretion, we will remand for
resentencing “if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id. at 491. However, the relative weight or value
assignable to reasons properly found, or to those which should have been
found, is not subject to review for abuse of discretion. Id. Although the trial
court has an obligation to consider all mitigating circumstances identified by a
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defendant, it is within the trial court’s sound discretion whether to find
mitigating circumstances. Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App.
2003), trans. denied. We will not remand for reconsideration of alleged
mitigating factors that have debatable nature, weight, and significance. Id.
However, if the record clearly supports a significant mitigating circumstance
not found by the trial court, we are left with the reasonable belief that the trial
court improperly overlooked the circumstance. Moyer v. State, 796 N.E.2d 309,
313 (Ind. Ct. App. 2003). Hopkins contends that the trial court abused its
discretion in refusing to find his expression of remorse and his prior
victimization to be mitigating circumstances.
A. Expression of Remorse
[6] The trial court did not abuse its discretion in failing to find Hopkins’s
expression of remorse to be a mitigating factor. The court is not required to
accept a Hopkins’s alleged remorse as a mitigating factor. See Phelps v. State,
969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans. denied. Hopkins’s entire
statement consisted of three sentences: “I’d like to uh, apologize for my
actions. Uh, I hope that both of my families can see it in their hearts to forgive
me. That’s it.” Tr. Vol. III p. 9. Of the three sentences, his only expression of
remorse was the rather perfunctory “I’d like to uh, apologize for my actions.”
The sincerity of this apology is questionable given the timing of his plea just six
days before his jury trial was scheduled to begin.
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[7] In any event, we defer to the trial court’s determination that Hopkins’s remorse
was not deserving of any mitigating weight because the trial court is in the best
position to judge the sincerity of a defendant’s remorseful statements. The
Indiana Supreme Court has made clear that a trial court’s determination of a
defendant’s remorse is like a determination of credibility and without evidence
of some impermissible consideration by the trial court, we accept its decision.
See Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002); see also Phelps v. State, 914
N.E.2d 283, 293 (Ind. Ct. App. 2009) (“Remorse, or lack thereof, by a
defendant is something better guarded by a trial judge who views and hears a
defendant’s apology and demeanor first hand and determines the defendant’s
credibility.”). So, whatever Hopkins’s expressions of remorse, the trial court
was not required to credit them, and seemingly did not. This was within the
trial court’s discretion.
B. Prior Victimization
[8] Hopkins also contends that the trial court abused its discretion in failing to find
his prior victimization to be a mitigating factor. The Indiana Supreme Court
has concluded that evidence of a troubled childhood “warrants little, if any,
mitigating weight.” Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000); see also
Peterson v. State, 674 N.E.2d 528, 543 (Ind. 1996) (mitigating weight warranted
by a difficult childhood is in the low range); Page v. State, 615 N.E.2d 894, 896
(Ind. 1993) (finding “[e]vidence of a troubled childhood does not require the
trial court to find it to be a mitigating circumstance”). Here, the only evidence
of Hopkins’s victimization is his self-report to probation that his mother’s
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boyfriend molested him from the age of three to fourteen and that he was
removed from the home and placed in a treatment center at the age of fifteen
due to the molestation. (App. Vol. II 94). Without more, we cannot say that
the existence of this allegedly mitigating factor is strongly supported by the
record.
[9] Even if we assume that Hopkins was a victim of childhood sexual abuse, he
would understand better than most the physical, emotional, and psychological
trauma that such abuse can cause a victim. Hopkins’s choice to inflict this
trauma on another child is arguably more aggravating than mitigating. We
conclude that the trial court did not abuse its discretion in declining to find
Hopkins’s prior victimization to be a mitigating circumstance. See Loveless v.
State, 642 N.E.2d 974, 977 (Ind. 1994) (finding no error when the trial court
declined to find the defendant’s childhood that included being molested by her
father and witnessing her father molest her sisters, cousins, and other young
girls as a mitigating factor). Under the circumstances, including that Hopkins
does not challenge any of the aggravating circumstances found by the trial
court, he has failed to establish that the trial court abused its discretion in
sentencing him.
II. Appropriateness of Sentence
[10] We “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Ind.
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Appellate Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “[W]hether we regard a sentence as appropriate
at the end of the day 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 addition to the “due consideration” we are required to give to the
trial court’s sentencing decision, “we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Rutherford v. State,
866 N.E.2d 867, 873 (Ind. Ct. App. 2007). As mentioned, the trial court
sentenced Hopkins to thirty years of incarceration for Level 1 felony child
molesting, which is the advisory sentence for that crime. See Ind. Code § 35-50-
2-4(c).
[11] The nature of Hopkin’s offense is heinous, even if we assume that he committed
only the one act to which he pled guilty. Hopkins’s forced himself upon and
had sexual intercourse with a five- or six-year-old girl, which is far younger than
the threshold age for child molesting. Hopkins molested K.B. despite her
asking him to stop. K.B. had been placed in Hopkins’s care, and Hopkins
violated that trust and K.B. in an egregious fashion. The trial court found that
Hopkins’s crime has had a “horrible” impact on K.B. Tr. Vol. III p. 16. The
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nature of Hopkins’s offense suggests that his thirty-year, advisory sentence is
not inappropriate.
[12] Hopkins’s character does not speak well of him. Hopkins, born in 1981, has a
significant criminal and juvenile history, which includes crimes like the one to
which he pled guilty in this case. As a juvenile, Hopkins admitted to what
would have been Class A child molesting and two counts of Class B felony
child molesting in 1998. As an adult, Hopkins has convictions for two counts
of Class C misdemeanor driving without ever receiving a license, misdemeanor
illegally carrying a weapon, and Class C felony nonsupport of a dependent
child. Moreover, Hopkins was on probation for nonsupport of a dependent
child when he committed the instant offense. Despite his frequent contacts
with the juvenile and criminal justice systems, Hopkins has not chosen to
reform himself.
[13] Hopkins also contends that his expression of remorse and guilty plea speak well
of his character. Hopkins’s expression of remorse has already been discussed.
As for Hopkins’s guilty plea, it strikes us as much more likely to have been a
pragmatic decision than a true acceptance of responsibility. In exchange for
Hopkins’s guilty plea to one count of Level 1 felony child molesting, another
Level 1 felony and a Level 4 felony were dropped in exchange, and Hopkins’s
sentence was capped at thirty years, out of a potential maximum of fifty. See
Ind. Code § 35-50-2-4(c). Moreover, Hopkins pled guilty over ten months after
charges were filed and six days before trial was scheduled to start. Given the
pragmatic nature of Hopkins’s plea, we cannot say that Hopkins’s guilty plea
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speaks well of this character. Hopkins has failed to establish that his thirty-year
sentence for Level 1 felony child molesting is inappropriate in light of the nature
of his offense and his character.
[14] We affirm the judgment of the trial court.
Robb, J., and Crone, J., concur.
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