MEMORANDUM DECISION
                                                              Feb 19 2015, 10:00 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Peter D. Todd                                             Gregory F. Zoeller
Elkhart, Indiana                                          Attorney General of Indiana

                                                          William Hackl Brainard
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Alandus D. James,                                        February 19, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         20A03-1405-CR-173
        v.                                               Appeal from the Elkhart Superior
                                                         Court; The Honorable George W.
                                                         Biddlecome, Judge; The Honorable
State of Indiana,                                        Thomas Murto, Magistrate;
Appellee-Plaintiff.                                      20D03-1206-FD-765
                                                         20D03-1208-CM-1493
                                                         20D03-1208-CM-1494




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-173 | February 19, 2015   Page 1 of 4
[1]   Alandus D. James appeals the court’s order that he serve a thirty-month

      sentence for class D felony residential entry1 consecutive to two concurrent

      eighteen-month sentences for Class D felony battery on a child2 and Class D

      felony strangulation.3


[2]   We affirm.


                                     Facts and Procedural History4
[3]   On June 21, 2012, Rhonelle Murphy discovered James, whom she knew,

      entering her residence through a window. Once inside, James began punching

      Murphy in the face with his fist. M.A.W., Murphy’s daughter, ran to help her

      and begged James to stop. At some point, James hit M.A.W. instead of

      Murphy. James grabbed Murphy by the neck and began to strangle her. When

      James let go of Murphy’s neck, he started kicking her in the face. Murphy and

      M.A.W. fled to the bathroom. James followed them and continued to punch

      Murphy with his fists. James finally left, and Murphy called the police. James

      was still outside when the police arrived. When Murphy identified James as

      her assailant, he tried to use the alias “Aljimar Gregory” but eventually




      1
          Ind. Code § 35-43-2-1.5 (2011).
      2
          Ind. Code § 35-42-2-1 (2011).
      3
          Ind. Code § 35-42-2-9 (2011).
      4
       The court also sentenced James in the same cause for being an habitual offender, for misdemeanor battery
      under cause number 20D03-1208-CM-1493, and for possession of marijuana under cause number 20D03-
      1208-CM-1494. James does not challenge those sentences.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-173 | February 19, 2015         Page 2 of 4
      admitted his real name. (Tr. at 285-86, 336.) The police determined James had

      outstanding warrants and arrested him.


[4]   On June 27, 2012, the State charged James with Class D felony battery on a

      child; Class D felony strangulation; and Class D felony residential entry. A

      jury found James guilty of the charges. The trial court ordered James to serve

      eighteen months for the battery concurrent with eighteen months for the

      strangulation, and to serve thirty months for residential entry consecutive to

      those concurrent sentences.


                                     Discussion and Decision
[5]   James asserts that the trial court abused its discretion when ordering the

      sentence for residential entry to be served consecutive to the other two

      sentences.


[6]   Whether to impose consecutive or concurrent sentences is within the trial

      court’s sound discretion and is reviewed only for an abuse of discretion.

      Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). The trial court

      abuses its discretion if its decision is clearly against the logic and effect of the

      facts and circumstances. Id.


[7]   “[T]he court shall determine whether terms of imprisonment shall be served

      concurrently or consecutively. The court may consider the: (1) aggravating

      circumstances . . . and (2) mitigating circumstances . . . in making a

      determination under this subsection. . . .” Ind. Code § 35-50-1-2(c). “To


      Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-173 | February 19, 2015   Page 3 of 4
      impose consecutive sentences, the trial court must find at least one aggravating

      circumstance.” Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999).


[8]   Although the court did not explicitly state a reason for imposing consecutive

      sentences, it is evident the court believed the maximum sentence of forty-eight

      months was “required” because “[t]here are issues of violence in every one of

      these counts . . . .” (Tr. at 529.) After so stating, the court reviewed James’

      criminal history, noting violence in each of those crimes as well. The court

      determined James’ violence and the “lack of success in probationary area” were

      aggravators, (id. at 532), and noted the mitigators were not enough to reduce

      the sentence from forty-eight months. (Id.) Thus, the trial court did not abuse

      its discretion when it ordered James to serve the residential entry sentence

      consecutive to the concurrent battery and strangulation sentences. See, e.g.,

      Smith v. State, 770 N.E.2d 818, 821 (Ind. 2002) (factors used to enhance

      sentence can also be cited to impose consecutive sentences). Accordingly, we

      affirm.


[9]   Affirmed.


      Barnes, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-173 | February 19, 2015   Page 4 of 4
