FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                GREGORY F. ZOELLER
Marion County Public Defender Agency         Attorney General of Indiana
Indianapolis, Indiana
                                             JODI KATHRYN STEIN
                                             Deputy Attorney General

                                                                           FILED
                                             Indianapolis, Indiana

                                                                      Mar 13 2012, 9:31 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                CLERK
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




KENNETH AKERS,                               )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 49A05-1106-CR-313
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Christina Klineman, Commissioner
                          Cause No. 49G05-1103-FC-018806




                                   March 13, 2012



                             OPINION - FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       Following a jury trial, Kenneth Akers was convicted of battery, resisting law

enforcement, and possession of paraphernalia, all Class A misdemeanors. He was sentenced

to one year in prison for each conviction, with the sentences for battery and resisting law

enforcement to be served concurrently to each other and consecutive to his possession of

paraphernalia sentence. Akers raises one issue for our review: whether Indiana Code section

35-50-1-2 violates the Equal Protection Clause of the United States Constitution or Article 1,

Section 23 of the Indiana Constitution because the statute limits the imposition of

consecutive sentences when someone is convicted of at least one felony, but no such statute

exists limiting the imposition of consecutive sentences for those convicted of only

misdemeanors. The State raises two issues for our review: whether Akers has waived the

challenge he now brings, and whether Akers‟ three convictions were part of an episode of

criminal conduct as Indiana Code section 35-50-1-2 requires. Concluding Akers‟ convictions

did not arise out of an episode of criminal conduct and he therefore lacks standing to

challenge the constitutionality of Indiana Code section 35-50-1-2, we affirm Akers‟

convictions.

                               Facts and Procedural History

       In March 2011, Akers, along with Desean Arnold and an unidentified man, walked by

an older gentleman, Larry Johnson, who was walking along the side of a street. Johnson had

just returned from cashing a check and was showing a friend the money he received. Akers

and Arnold returned a few minutes later, grabbed Johnson, and threw him into a three-foot


                                              2
ditch along the road. Indianapolis Metropolitan Police Officer Robert McCauley was

watching from across the street in his police vehicle. Officer McCauley immediately

activated his emergency lights and siren and drove across the street. Akers and Arnold ran

into a nearby apartment and Officer McCauley chased them on foot. Officer McCauley

found Arnold near the front door and discovered Akers down the hallway and around a

corner. Afterwards, Johnson realized his money was gone and he suffered shoulder and neck

pain from the incident. When Akers was searched, a small bag of marijuana was found at his

feet and rolling papers were found in his wallet.

       The State charged Akers with attempted robbery, a Class C felony; battery, resisting

law enforcement, possession of paraphernalia, and possession of marijuana, all Class A

misdemeanors; and possession of marijuana, a Class D felony. The State added an habitual

offender charge, but it subsequently dismissed the habitual offender allegation and

possession of marijuana charges. The jury found Akers not guilty of attempted robbery and

guilty of battery, resisting law enforcement, and possession of paraphernalia. The trial court

sentenced Akers to one year in prison for each conviction, but ordered the battery and

resisting law enforcement convictions to be served concurrent with each other and

consecutive to the sentence for possession of paraphernalia, resulting in an aggregate

sentence of two years. Akers now appeals.




                                              3
                                     Discussion and Decision1

                                       I. Standard of Review

        Our standard of review is well-settled when statutes are challenged as violating the

Indiana Constitution. “A statute is presumed constitutional until the party challenging its

constitutionality clearly overcomes the presumption by a contrary showing.” Sims v. United

States Fidelity & Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003). “The party challenging the

constitutionality of the statute bears the burden of proof, and all doubts are resolved against

that party.” Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996). Preliminarily, a

party must have standing. Gross v. State, 506 N.E.2d 17, 21 (Ind. 1987). To have standing

to challenge the constitutionality of a statute, an appellant must establish that his rights were

adversely affected by the statute. Id.

                                              II. Waiver

        The State argues Akers‟ constitutional challenge is waived because prior to his appeal

he never raised an argument that the sentencing limitation in Indiana Code section 35-50-1-

2(c) for non-violent episodes of criminal conduct should apply to him. However, “the

constitutionality of a statute may be raised at any stage of the proceeding,” and may even be

raised sua sponte by this court. Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992). Thus,

Akers‟ constitutional challenge is not waived.

                                            III. Standing



        1
          We heard Oral Argument in Indianapolis, Indiana, on February 16, 2012, and we thank counsel for
their capable advocacy.

                                                   4
       After providing courts with the discretion to determine whether terms of imprisonment

shall be served concurrently or consecutively, Indiana Code section 35-50-1-2 provides:

       However, except for crimes of violence, the total of the consecutive terms of
       imprisonment . . . to which the defendant is sentenced for felony convictions
       arising out of an episode of criminal conduct shall not exceed the advisory
       sentence for a felony which is one (1) class of felony higher than the most
       serious of the felonies for which the person has been convicted.

The section also defines which crimes constitute a “crime of violence” and defines “episode

of criminal conduct” as “offenses or a connected series of offenses that are closely related in

time, place, and circumstance.” Ind. Code § 35-50-1-2(a), (b). None of Akers‟ convictions

are crimes of violence.

       The application of Indiana Code section 35-50-1-2 has been clarified by this court and

our supreme court. In Purdy v. State, 727 N.E.2d 1091, 1094 (Ind. Ct. App. 2000), trans.

denied, where Purdy was convicted of one Class D felony and two Class A misdemeanors,

we stated the statute is ambiguous in that while it does require the defendant be sentenced for

felony convictions, it does not express whether the defendant could also have been sentenced

for misdemeanor convictions. We concluded the statute does apply in cases where a

defendant is sentenced for both felony and misdemeanor convictions. Id. In Dunn v. State,

900 N.E.2d 1291, 1291 (Ind. Ct. App. 2009), Dunn was not convicted of any felonies, but

rather, of three Class A misdemeanors. We concluded Indiana Code section 35-50-1-2 does

not apply in such circumstances because it unambiguously requires that a defendant be

sentenced for felony convictions in order for his or her sentence to fall within the section‟s

purview. Id. at 1292.


                                              5
        We have also clarified the requirement under the statute that the offenses result from

one “episode of criminal conduct,” although not without some inconsistency. A split has

developed on this court in regard to when crimes of possession are part of an episode of

criminal conduct. In Ratliff v. State, 741 N.E.2d 424, 428 (Ind. Ct. App. 2000), trans.

denied, Ratliff attempted to evade police after they tried to pull him over for driving

erratically. After driving into a cornfield, officers discovered Ratliff lying in the field with a

bag full of marijuana. Ratliff was convicted of OWI, possession of marijuana, and resisting

law enforcement, and this court concluded the OWI and resisting law enforcement were part

of an episode of criminal conduct, but the possession conviction was a separate and distinct

act which did not “bear a direct relation to the others.” Id. at 434. Thus, we held the trial

court was not limited by Indiana Code section 35-50-1-2 in sentencing Ratliff. Id.

       In Johnican v. State, 804 N.E.2d 211 (Ind. Ct. App. 2004), the court disagreed with

the majority but agreed with Judge Mathias‟s dissent in that case, holding that when “a

defendant possesses contraband on his person as he simultaneously commits other criminal

offenses, the offenses should be deemed part of a single episode of criminal conduct.” Id. at

218. In that case, two officers observed Johnican walking across a street and ordered him to

stop because they knew there was an outstanding warrant for Johnican‟s arrest. Johnican

disobeyed the order and kept moving, and soon thereafter pulled out a gun and attempted to

shoot the officers. After several gunshots were fired by Johnican and the officers, Johnican

was taken to the hospital after an officer shot him in the chest. While at the hospital, cocaine

was discovered in Johnican‟s clothing. “When detectives questioned Johnican about the


                                                6
incident with Officers Hoehn and Day, he told them that the reason he ran from the police

was because he had some cocaine in his possession and did not want to go back to jail.” Id.

at 213. He was convicted of possession of cocaine, pointing a loaded firearm at another

person, and resisting law enforcement, and he was determined to be an habitual offender. Id.

This court concluded the consecutive sentencing limitation in Indiana Code section 35-50-1-

2 applied to Johnican, but because his consecutive sentence was already less than the

maximum consecutive sentence permitted by that statute, we concluded the trial court did not

violate the statute.

       In Cole v. State, 850 N.E.2d 417, 423 (Ind. Ct. App. 2006), we also held that

possessing an illegal substance while resisting law enforcement was part of an episode of

criminal conduct. In that case, police officers spotted Cole and attempted to conduct a traffic

stop because he had an outstanding warrant for his arrest for being an habitual traffic

offender. Id. at 418. However, Cole fled in his vehicle and led the police on a half-hour

chase. Id. Once Cole was apprehended, police discovered a tank containing anhydrous

ammonia in Cole‟s vehicle which Cole planned to use in the manufacture of

methamphetamine. Id. Cole pleaded guilty to resisting law enforcement, possession of

chemical reagents or precursors with intent to manufacture methamphetamine, and being an

habitual offender. Id. This court concluded Cole‟s convictions arose from an episode of

criminal conduct, and, thus, that his consecutive sentence required reduction because it

exceeded the maximum consecutive sentence permitted by Indiana Code section 35-50-1-2.




                                              7
        In our most recent case, Deshazier v. State, 877 N.E.2d 200, 204 (Ind. Ct. App. 2007),

trans. denied, Deshazier was convicted of carrying a handgun with a prior felony, a Class C

felony; two counts of resisting law enforcement, one a Class D felony and one a Class A

misdemeanor; and possession of marijuana, a Class A misdemeanor. The facts of the case

are similar to those before us today: during a traffic stop police officers discovered Deshazier

had a gun, Deshazier ran from the police, and police found marijuana in Deshazier‟s jacket

that he left at the scene when he fled. Id. at 203. After noting this court‟s split of authority

and our supreme court‟s emphasis on the timing of the offenses,2 we reasoned that “no

evidence exists as to when Deshazier came into possession of the handgun or marijuana.

Possession is inherently a „continuing offense,‟ which occurs from the time the defendant

comes into possession of the contraband until the time he relinquishes control.” Id. at 212.

We thus held the possession convictions were not part of an episode of criminal conduct with

Deshazier‟s convictions for resisting law enforcement. Id.

        Here, Akers‟ possession of paraphernalia conviction is related to his other convictions

only in the sense that his possession was discovered by police officers immediately after or

during his other criminal acts. However, as in Deshazier, it is unclear from the evidence



        2
          See Reed v. State, 856 N.E.2d 1189, 1200-01 (Ind. 2006) (“The record . . . shows that the time lapse
between the first and last shots fired was approximately five seconds. It was on the basis of these gunshots that
Reed was charged with two counts of attempted murder. And although not precisely „simultaneous‟ or
„contemporaneous,‟ the two offenses were nonetheless „closely connected in time, place, and circumstance.‟”)
(citations omitted); see also Harris v. State, 861 N.E.2d 1182, 1188-89 (Ind. 2007) (Reviewing a prior Indiana
Court of Appeals case, Harris v. State, 749 N.E.2d 57 (Ind. Ct. App. 2001), trans. denied, for ineffective
assistance of counsel, the court stated “[t]he crimes were committed in the same bed only a few minutes apart.
Two acts of sexual misconduct which occurred five minutes apart in the same bed and based on the same
reason – the girls‟ need for a place to stay for the night – are „a connected series of offenses that are closely
connected in time, place, and circumstance.‟”).

                                                       8
when Akers came into possession of the paraphernalia, making the timing of the offenses

more distinguishable than at first glance. Further, unlike in Johnican, where the criminal

actions of resisting law enforcement and pointing a firearm at another person resulted largely

due to Johnican‟s possession of cocaine, here there is no evidence to suggest that Akers‟

battery of the victim or resisting arrest were fueled by his possession of paraphernalia. Thus,

even putting chronological relation aside, Akers‟ conviction for possession of paraphernalia

was not related in circumstance to his other convictions. There is no nexus between the acts

of battery and the subsequent resisting arrest, and Akers‟ possession of paraphernalia. This is

not to say that possession convictions cannot be part of an episode of criminal conduct with

other convictions, but in the circumstances of this case, Akers‟ convictions are not part of an

episode of criminal conduct for the purposes of Indiana Code section 35-50-1-2.

       Thus, the sentencing limitation would not apply to Akers even if it applied to

defendants convicted of only misdemeanors because his convictions did not arise out of an

episode of criminal conduct. The result of this conclusion is that Akers lacks standing to

challenge the statute. Although the total of his consecutive terms of imprisonment is two

years, which is longer than the advisory sentence for one class of felony higher than the

highest misdemeanor Akers committed, his consecutive convictions are not from an episode

of criminal conduct and the statute would therefore not apply, even if his argument was

otherwise well-taken. Thus, we need not reach his constitutional challenge because he lacks

standing.




                                              9
                                       Conclusion

      Akers‟ convictions were not part of a single episode of criminal conduct. Thus, Akers

does not have standing to challenge Indiana Code section 35-50-1-2 because the statute

would not apply to him even if it applied generally to defendants convicted of only

misdemeanors. We therefore affirm Akers‟ convictions.

      Affirmed

KIRSCH, J., and BRADFORD, J., concur.




                                           10
