John Richard Kochopolous v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 08 2019, 7:24 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Appellate Division Attorney General
Office of the Public Defender
Crown Point, Indiana Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Richard Kochopolous, August 8, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3158
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G04-1609-F5-93
Crone, Judge.
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Case Summary
[1] Following a bench trial, John Richard Kochopolous appeals his eight-and-one-
half-year sentence for level 5 felony operating a motor vehicle after forfeiture of
license for life, level 6 felony operating a vehicle while intoxicated resulting in
serious bodily injury, and level 6 felony leaving the scene of an accident
resulting in serious bodily injury. Kochopolous asserts that the trial court erred
by finding “derivative” aggravators and by considering his lack of remorse as an
aggravating circumstance. Kochopolous contends, and the State agrees, that his
level 6 felony convictions violate double jeopardy principles. We find no
reversible error in the trial court’s finding of aggravators, but we reverse and
remand with instructions to reduce Kochopolous’s conviction for level 6 felony
leaving the scene of an accident resulting in serious bodily injury to a class B
misdemeanor and for resentencing on that count.
Facts and Procedural History
[2] On September 24, 2016, Daniel Ridder and Michael Shelton were in Hammond
with a group of friends to attend a sporting event at the Hammond Civic
Center. While crossing the street on a crosswalk, Ridder and Shelton were
struck by a silver minivan, which left the scene. Witnesses described the
incident to police who, less than ten minutes later, pulled over a silver minivan
that had a smashed-in windscreen that contained at least one victim’s blood and
hair. Kochopolous was the sole occupant of the vehicle when police pulled him
over, approximately four blocks from his home. He exhibited several signs of
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intoxication and admitted to police that he had at least a few beers that night
before driving. Investigators determined that Kochopolous was driving while
intoxicated at approximately twice the legal limit.
[3] The State charged Kochopolous with level 5 felony operating a motor vehicle
after forfeiture of license for life, level 6 felony operating a vehicle while
intoxicated resulting in serious bodily injury, level 6 felony leaving the scene of
an accident resulting in serious bodily injury to Ridder, and class A
misdemeanor leaving the scene of an accident resulting in bodily injury to
Shelton. At his bench trial, Kochopolous testified that his next-door neighbor
was driving his vehicle at the time of the accident and that he was the
passenger. Kochopolous testified that only after his neighbor drove to another
location and exited the vehicle, did he begin to drive the damaged minivan
home when police stopped him.
[4] The trial court found Kochopolous guilty as charged. At sentencing, the trial
court found Kochopolous’s poor health and alcoholism as mitigators, and
found fourteen aggravators, including Kochopolous’s criminal history, his
inability to obey the law, that he is a danger to community, and his lack of
remorse. The trial court found that the aggravators “substantially” outweighed
the mitigators. Tr. Vol. 4 at 170. The trial court merged the class A
misdemeanor conviction with the level 6 felony leaving the scene of an accident
with serious bodily injury conviction. The trial court then sentenced
Kochopolous to six years for the level 5 felony conviction, to be served
consecutive to concurrent two-and-one-half-year sentences on the level 6 felony
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convictions, for an aggregate sentence of eight and one-half years, all executed.
This appeal followed.
Discussion and Decision
Section 1 – The trial court did not commit reversible error in
finding aggravating circumstances.
[5] Kochopolous contends that the trial court erred by finding several “derivative”
aggravating circumstances and by finding his lack of remorse as an aggravator.
“Generally speaking, sentencing decisions are left to the sound discretion of the
trial court, and we review the trial court’s decision only for an abuse of this
discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied
(2016). “An abuse of discretion occurs if the decision is clearly against the logic
and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom.” Anglemeyer v. State,
868 N.E.2d 482, 490 (Ind. 2007) (quotation marks omitted), clarified on reh’g,
875 N.E.2d 218. The finding of aggravating and mitigating circumstances rests
within the trial court’s discretion. Newsome v. State, 797 N.E.2d 293, 301 (Ind.
Ct. App. 2003), trans. denied (2004). A trial court may abuse its discretion where
it includes findings of aggravating and mitigating factors in its sentencing
statement that are not supported by the record, or that are based on reasons that
are improper as a matter of law. Anglemeyer, 868 N.E.2d at 490-91.
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1.1 - The trial court did not abuse its discretion in finding “derivative”
aggravating circumstances.
[6] At the sentencing hearing, the trial court listed as an aggravator Kochopolous’s
multiple alcohol-related convictions. The trial court also listed as aggravators
his inability to obey the drink-drive laws of Indiana and that he is a danger to
the community because he is unable to address his alcoholism. Citing Morgan v.
State, 829 N.E.2d 12, 17 (Ind. 2005), and Neff v. State, 849 N.E.2d 556, 560 (Ind.
2006), Kochopolous claims that these findings are “derivative” of his alcohol-
related criminal history, and that they cannot serve as separate aggravating
circumstances. Appellant’s Br. at 11.
[7] Both Morgan and Neff, however, were decided under Indiana’s prior
presumptive sentencing scheme; as such, Kochopolous’s claim of error is
unavailable because he was sentenced under the current advisory sentencing
scheme. McMahon v. State, 856 N.E.2d 743, 751 n.8 (Ind. Ct. App. 2006).
Consequently, we find no abuse of discretion.
1.2 - The trial court abused its discretion in finding Kochopolous’s lack of
remorse to be an aggravator, but this error is harmless.
[8] Next, Kochopolous contends that the trial court abused its discretion in finding
his lack of remorse as an aggravator. Kochopolous claims that he “simply
asserted his innocence,” and that the trial court “impermissibly penalized him
for disputing his guilt.” Hollen v. State, 740 N.E.2d 149, 158 (Ind. Ct. App.
1999), opinion adopted by 761 N.E.2d 398 (Ind. 2002). After a review of the
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record, we believe that the trial court has improperly equated Kochopolous’s
maintenance of innocence with a lack of remorse.
[9] A trial court may consider a defendant’s lack of remorse as an aggravator,
which typically manifests where a defendant displays “disdain or recalcitrance.”
Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014). “This is distinguished
from the right to maintain one’s innocence . . . .” Id. As such, a trial court may
not consider lack of remorse as an aggravator where a defendant “consistently
maintain[s] his innocence if [done] so in good faith.” Id. This court has
addressed the difficult issue involving the denial of guilt being applied as an
aggravator multiple times. See, e.g., Sloan, 16 N.E.3d 1018; Kien v. State, 782
N.E.2d 398 (Ind. Ct. App. 2003), trans. denied; Cox v. State, 780 N.E.2d 1150(Ind. Ct. App. 2002); Hollen, 740 N.E.2d 149; Bluck v. State, 716 N.E.2d 507(Ind. Ct. App. 1999).
[10] While a defendant has an absolute right to maintain his innocence throughout
all criminal proceedings, lack of remorse may still be regarded as an aggravator.
Bluck, 716 N.E.2d at 513. However, “[t]his court held that even though there
was corroborating evidence of the defendant’s guilt, it did not necessarily follow
that the defense was maintained in bad faith and therefore subjected the
defendant to an enhanced sentence.” Kien, 782 N.E.2d at 412 (citing Hollen, 740
N.E.2d at 159). Indeed, to do so would endorse the proposition that any time a
defendant maintained his innocence and lost, he would be subjected to an
enhanced sentence. Sloan, 16 N.E.2d at 1028. As was the case in Kien and
Hollen, we are faced with a defendant who has maintained his innocence
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throughout all criminal proceedings where there was corroborating evidence as
to his guilt.
[11] Throughout the proceedings, Kochopolous has claimed that he was not the
driver when his minivan struck the two victims, even though he admitted to
having drunk alcohol and then driving at some point after the collision. While a
number of people witnessed Kochopolous’s silver minivan strike the two
victims, no witnesses and no direct evidence could place Kochopolous as the
driver of the minivan at the time of the accident. There is plenty of
circumstantial and physical evidence that points to Kochopolous’s guilt, but “it
is not so overwhelmingly condemning that we can say that [he] maintained his
innocence in bad faith.” Kien, 782 N.E.2d at 413.
[12] And while Kochopolous did not express any sorrow, concern, or remorse for
the victims, “[t]here is no indication in the record that [Kochopolous’s]
assertion of his innocence under these circumstances was in bad faith or
amounted to disdain or recalcitrance.” Hollen, 740 N.E.2d at 159 (emphasis
added). As such, the trial court abused its discretion in finding Kochopolous’s
lack of remorse to be an aggravator.
[13] However, “[a] single aggravating circumstance may be sufficient to enhance a
sentence. When a trial court improperly applies an aggravator, but other valid
aggravating circumstances exist, a sentence enhancement may still be upheld.”
Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v.
State, 716 N.E.2d 1273, 1278 (Ind. 1999)), trans. denied (2017). Given that
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numerous other valid aggravators exist, and stand unchallenged, we find no
need to remand for resentencing. Anglemeyer, 868 N.E.2d at 491.
Section 2 – Kochopolous’s two level 6 felony convictions
violate double jeopardy principles.
[14] Kochopolous contends that his double jeopardy rights were violated when the
trial court entered judgment of conviction and sentenced him for level 6 felony
driving while intoxicated resulting in serious bodily injury and level 6 felony
leaving the scene of an accident resulting in serious bodily injury because they
are based on the same bodily injury. See, e.g., Owens v State, 897 N.E.2d 537,
539 (Ind. Ct. App. 2008) (holding that defendant’s convictions and sentences
for murder and robbery resulting in serious bodily injury violated double
jeopardy principles because they were based on the same bodily injury). The
State properly concedes that both convictions cannot remain level 6 felonies.
[15] A reviewing court may remedy a double jeopardy violation by reducing either
conviction to a less serious form of the same offense, if it will eliminate the
violation, or by vacating one of the offending convictions. Moala v. State, 969
N.E.2d 1061, 1065 (Ind. Ct. App. 2015). “The reviewing court will make this
determination itself, being mindful of the penal consequences that the trial court
found appropriate.” D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App. 2017)
(quotation marks omitted). Here, reducing the level 6 felony conviction for
leaving the scene of an accident resulting in serious bodily injury to class B
misdemeanor leaving the scene of an accident will eliminate the double
jeopardy violation. This also leaves intact the trial court’s aggregate sentence of
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eight and one-half years. We therefore reverse and remand with instructions to
reduce the level 6 felony to a class B misdemeanor and for resentencing on that
count. The trial court need not hold a sentencing hearing on remand.
[16] Affirmed in part, reversed in part, and remanded.
Bradford, J., and Tavitas, J., concur.
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