Walter Kenneth Cobbs II v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 13 2019, 8:46 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Sarah J. Shores
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Walter Kenneth Cobbs II, December 13, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1705
v. Appeal from the
Tippecanoe Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Steven P. Meyer, Judge
Trial Court Cause No.
79D02-1904-F5-46
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019 Page 1 of 6
Case Summary
[1] Walter Kenneth Cobbs II appeals his sentence for Level 5 felony intimidation
with a deadly weapon and Class A misdemeanor carrying a handgun without a
license, arguing that it is inappropriate in light of the nature of his offenses and
his character. We affirm.
Facts and Procedural History
[2] On the night of March 26, 2019, Cobbs and Marcell Smith were at an
apartment together, and Cobbs pointed a handgun at Smith to get him to leave.
The next day, Cobbs and Smith saw each other outside the Howarth Center, a
building in Lafayette that houses various non-profit agencies. The two briefly
fought before Cobbs drew his gun and fired a round. There is conflicting
evidence as to whether Cobbs was aiming at Smith, but Smith was not hit.
Cobbs fled the scene and stashed the gun outside a nearby house. Police
quickly apprehended Cobbs, and he brought them to the gun.
[3] Based on the March 27 incident, the State charged Cobbs with Level 5 felony
attempted battery with a deadly weapon, Level 5 felony intimidation with a
deadly weapon, Level 6 felony pointing a firearm, Level 6 felony criminal
recklessness, and Class A misdemeanor carrying a handgun without a license.
Cobbs and the State then entered into a plea agreement under which Cobbs
pled guilty to the intimidation and carrying-a-handgun charges, the State
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1705 | December 13, 2019 Page 2 of 6
dismissed the other three charges, and sentencing was left to the discretion of
the trial court.
[4] In sentencing Cobbs, the trial court found four aggravating factors:
the seriousness of the offense (gun was loaded); the repetitive
conduct (used the same gun the night before to intimidate the
same people); he attempted to conceal his involvement in the
crime by hiding a loaded handgun in a residential area under a
bush near a home where it could have been found by a child or
another member of the community; and this incident happened
at the Howarth Center, a community center which houses not-
for-profit agencies that provide help to less fortunate people.
Appellant’s App. Vol. II p. 14. The court also found four mitigating factors:
Cobbs has no criminal history; he has some mental-health issues; he accepted
responsibility; and he expressed remorse. The court found that the aggravating
factors outweigh the mitigating factors and sentenced Cobbs to three years for
the intimidation conviction and a concurrent term of one year for the carrying-
a-handgun conviction. The court ordered Cobbs to serve one year in the
Department of Correction and suspended the other two years to probation, with
the first year of probation to be served through Tippecanoe County Community
Corrections.
[5] Cobbs now appeals.
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Discussion and Decision
[6] Cobbs contends that his sentence is inappropriate and asks us to reduce it
pursuant to Indiana Appellate Rule 7(B), which provides that an appellate court
“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.” “Whether a
sentence is inappropriate ultimately turns on the culpability of the defendant,
the severity of the crime, the damage done to others, and a myriad of other
factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391
(Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008)). Because we generally defer to the judgment of trial courts in sentencing
matters, defendants have the burden of persuading us that their sentences are
inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).
[7] Cobbs pled guilty to Level 5 felony intimidation and Class A misdemeanor
carrying a handgun without a license. For a Level 5 felony, the sentencing
range is one to six years, with an advisory sentence of three years. Ind. Code §
35-50-2-6. For a Class A misdemeanor, a defendant faces a sentence of up to
one year. Ind. Code § 35-50-3-2. As such, Cobbs faced up to seven years in
prison. The trial court imposed a total sentence of three years—the advisory
sentence for the Level 5 felony and a concurrent sentence of one year for the
Class A misdemeanor—and suspended two of the three years to probation, with
the first year of probation to be served on community corrections.
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[8] Cobbs argues that his sentence is inappropriate because of the mitigating factors
identified by the trial court (no criminal history, mental-health issues,
acceptance of responsibility, and expression of remorse) and because he brought
officers to the gun after he was apprehended. However, he acknowledges that
the other circumstances of his offenses made them particularly serious. He
pointed the gun at the same person the previous night. He committed his
crimes at the Howarth Center, which houses nonprofit agencies that provide
services for less-fortunate people. He not only drew the gun (which would have
been enough for Level 5 felony intimidation, see Ind. Code § 35-45-2-1(b)(2)(A))
but fired it. And after the shooting, he left the gun outside a house, where, as
the trial court noted, it could have been found by a child or another person.
Notwithstanding the seriousness of Cobbs’s crimes, the trial court imposed the
advisory sentence of three years and then suspended two of those years to
probation.
[9] Cobbs also notes that “all [his] support mechanisms are in the State of South
Carolina where he has a large and close knit family, was mentored by a youth
pastor at his church and had a part-time job at McDonald’s for five (5) years.”
Appellant’s Br. p. 10. But the trial court took this fact into consideration and
said that it “would approve the transfer of Defendant’s Probation to South
Carolina upon completion of the Defendant’s executed sentence.” Appellant’s
App. Vol. II p. 15.
[10] Cobbs has not convinced us that his sentence is inappropriate.
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[11] Affirmed.
Najam, J., and Tavitas, J., concur.
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