MEMORANDUM DECISION
                                                                   Dec 15 2015, 6:04 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
Timothy P. Broden                                        Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

James L. Reynolds, Jr.,                                  December 15, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         79A02-1504-CR-204
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court

State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         79D05-1410-F6-123




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015   Page 1 of 7
                                             Case Summary
[1]   James Reynolds, Jr., appeals his convictions for Level 6 felony residential entry

      and Class B misdemeanor criminal mischief and his two-and-one-half-year

      sentence for the offenses. We affirm in part and vacate in part.


                                                    Issues
[2]   Reynolds raises two issues, which we restate as:


                      I.       whether his convictions violate double
                               jeopardy principles; and

                      II.      whether his sentence is inappropriate.

                                                     Facts
[3]   Reynolds was Lori Roberts’s longtime boyfriend, and the couple lived together.

      Early in the morning on October 27, 2014, Roberts was frustrated that

      Reynolds would not turn his music down and walked to a friend’s nearby

      house. Reynolds then went to the house looking for Roberts, and she asked

      him to leave. Reynolds left, but he returned a few minutes later. He knocked

      on the glass door to the porch. When no one answered the door, he broke the

      glass, went into the porch, and then went into Roberts’s friend’s house. Roberts

      and Reynolds fought, and Roberts’s friend called 911.


[4]   The State charged Reynolds with Level 6 felony residential entry, Level 6

      felony criminal confinement, Class B misdemeanor battery, and Class A

      misdemeanor criminal mischief for breaking the glass door. A jury found
      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015   Page 2 of 7
      Reynolds guilty of the residential entry and criminal mischief charges. At

      sentencing, the trial court entered judgments of conviction on both counts and

      sentenced Reynolds to two-and-one-half years for the residential entry and to

      180 days for the criminal mischief. Because of double jeopardy concerns, the

      trial court ordered the sentences to be served concurrently. The trial court

      ordered Reynolds to serve one year executed and suspended the remainder of

      the sentence to unsupervised probation at a level determined by the Tippecanoe

      County Community Corrections. Reynolds now appeals.


                                                  Analysis
                                            I. Double Jeopardy

[5]   Reynolds argues that his convictions for residential entry and criminal mischief

      are based on the same evidentiary facts—him breaking the glass door—and

      violate the Indiana Constitution’s prohibition against double jeopardy. The

      State does not dispute this claim and asserts that the appropriate remedy is to

      vacate one of the convictions. Accordingly, we conclude the criminal mischief

      conviction must be vacated.


                                               II. Sentencing

[6]   Reynolds also argues that his two-and-one-half-year sentence is inappropriate.

      Indiana Appellate Rule 7(B) permits us to revise a sentence authorized by

      statute if, after due consideration of the trial court’s decision, we find that the

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender. Although Appellate Rule 7(B) does not require us to be


      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015   Page 3 of 7
      “extremely” deferential to a trial court’s sentencing decision, we still must give

      due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873

      (Ind. Ct. App. 2007). We also understand and recognize the unique perspective

      a trial court brings to its sentencing decisions. Id. “Additionally, a defendant

      bears the burden of persuading the appellate court that his or her sentence is

      inappropriate.” Id.


[7]   The principal role of Appellate Rule 7(B) review “should be to attempt to

      leaven the outliers, and identify some guiding principles for trial courts and

      those charged with improvement of the sentencing statutes, but not to achieve a

      perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

      (Ind. 2008). We “should focus on the forest—the aggregate sentence—rather

      than the trees—consecutive or concurrent, number of counts, or length of the

      sentence on any individual count.” Id. Whether a sentence is inappropriate

      ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence

      under Appellate Rule 7(B), we may consider all aspects of the penal

      consequences imposed by the trial court in sentencing the defendant, including

      whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

      1023, 1025 (Ind. 2010).


[8]   Reynolds contends that, although the trial court suspended one-and-one-half

      years of his sentence, it is tantamount to a two-and-one-half year executed

      sentence because participation in a community corrections program was a

      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015   Page 4 of 7
       condition of probation. In support of this argument, Reynolds relies on a

       concurring in result opinion in Shaffer v. State, 755 N.E.2d 1193 (Ind. Ct. App.

       2001). In her concurring opinion, Judge Vaidik concluded “that placement in

       community corrections programs if it is a condition of probation must also be

       considered suspended time. However, I find that direct placement in

       community corrections is a different beast than probation and should be treated

       accordingly.” Shaffer, 755 N.E.2d at 1198 (Vaidik, J., concurring).


[9]    Even if this position had been adopted by the majority in Shaffer, Reynolds

       provides us with no analysis of the current statutory scheme as it relates to

       community corrections and suspended sentences. Moreover, the trial court’s

       written sentencing order specified “Defendant is to serve one (1) year executed

       in Count I in the Indiana Department of Corrections . . . . The defendant’s

       sentence calls for an executed term of imprisonment of 365 days.” App. p. 12.

       The order further provides, “Defendant is placed on UNSUPERVISED

       PROBATION for a period of 1 ½ years on the following terms . . . 1 ½ years on

       unsupervised probation to be served at a level to be determined by the

       Tippecanoe County Community Corrections[.]” Id. Thus, the community

       corrections assignment was a condition of probation, which was ordered as part

       of the suspended sentence.


[10]   Further, at the sentencing hearing, the trial court explained that this

       arrangement would give Reynolds a chance to “get out,” to go to school, and to

       work. Tr. p 227. We are not convinced that Reynolds’s sentence is the

       equivalent of a two-and-one-half-year executed sentence.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015   Page 5 of 7
[11]   Regarding the nature of the offense, Reynolds ignored Roberts’s request to

       leave and, when no one answered the door, he broke the glass door, causing it

       to shatter. He then entered Roberts’s friend’s home, and Reynolds and Roberts

       argued, which resulted in Roberts’s friend calling 911. Although Roberts used

       Reynolds’s money to have the door repaired, we cannot say that the nature of

       the offense necessitates a reduction of Reynolds’s sentence.


[12]   As for his character, Reynolds has an extensive criminal history including at

       least seven misdemeanor convictions and five felony convictions as well as four

       other unspecified convictions in Illinois and a felony federal firearms

       conviction. Many other charges have been filed and dismissed against

       Reynolds, showing near constant contact with the criminal justice system since

       1985. Also troubling is the trial court’s assessment that Reynolds did not think

       the incident was “a big deal” and still thinks “it’s all a big accident.” Tr. p. 226.

       Given his criminal history and the cavalier attitude about his most recent

       criminal activity, Reynolds has not established that his sentence is

       inappropriate.


                                                 Conclusion
[13]   Reynolds’s criminal mischief conviction violates double jeopardy principles and

       must be vacated. However, Reynolds has not shown that his sentence is

       inappropriate. We affirm in part and vacate in part.


[14]   Affirmed in part and vacated in part.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015   Page 6 of 7
Robb, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-204 | December 15, 2015   Page 7 of 7
