FOR PUBLICATION
                                                                 Jun 13 2014, 8:50 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

ADAM C. SQUILLER                             GREGORY F. ZOELLER
Squiller & Hardy                             Attorney General of Indiana
Auburn, Indiana
                                             RYAN D. JOHANNINGSMEIER
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

ROBERT L. SLONE,                             )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 17A03-1312-CR-496
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE DeKALB SUPERIOR COURT
                        The Honorable Monte L. Brown, Judge
                  Cause Nos. 17D02-1305-FC-13, 17D02-1308-FB-15



                                   June 13, 2014


                            OPINION - FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       On December 17, 2012, Appellant-Defendant Robert L. Slone broke and entered into

the building or structure of Julia Hobbs with the intent to commit theft therein. On April 23,

2013, Slone broke and entered into the building or structure of Elizabeth Walker with the

intent to commit theft therein. On May 4, 2013, Slone broke and entered into the building or

structure of Merrill Hunter with the intent to commit theft therein. Each of the three break-

ins occurred in DeKalb County.

       On May 6, 2013, Appellee-Plaintiff the State of Indiana (the “State”) charged Slone

under Cause Number 17D02-1305-FC-13 (“Cause No. FC-13”) with one count each of Class

C felony burglary, Class D felony theft, and Class D felony receiving stolen property. On

August 2, 2013, the State charged Slone under Cause Number 17D02-1308-FB-15 (“Cause

No. FB-15”) with one count of Class B felony burglary, one count of Class D felony

receiving stolen property, one count of Class C felony attempted burglary, and two counts of

Class C felony burglary. The State also alleged that Slone was a habitual offender.

       Slone subsequently pled guilty to one count of Class C felony burglary under Cause

No. FC-13 and two counts of Class C felony burglary under Cause No. FB-15. The trial

court sentenced Slone to an aggregate twenty-four-year sentence. On appeal, Slone contends

that the trial court abused its discretion in sentencing him, claiming that the three thefts for

which he was convicted arose from a single episode of criminal conduct. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On December 17, 2012, Slone broke and entered into the building or structure of Julia

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Hobbs with the intent to commit theft therein. On April 23, 2013, Slone broke and entered

into the building or structure, specifically, the garage, of Elizabeth Walker with the intent to

commit theft therein. On May 4, 2013, Slone broke and entered into the building or structure

of Merrill Hunter with the intent to commit theft therein. Each of the three break-ins

occurred in DeKalb County.

       On May 6, 2013, the State charged Slone under Cause No. FC-13 with one count each

of Class C felony burglary, Class D felony theft, and Class D felony receiving stolen

property. On August 2, 2013, the State charged Slone under Cause No. FB-15 with one

count of Class B felony burglary, one count of Class D felony receiving stolen property, one

count of Class C felony attempted burglary, and two counts of Class C felony burglary. The

State also alleged that Slone was a habitual offender.

       On November 20, 2013, the trial court conducted a combined guilty plea hearing for

Cause Nos. FC-13 and FB-15. During this guilty plea hearing, the State requested, and was

granted, permission to amend the Class B felony burglary count in Cause No. FB-15 to Class

C felony burglary. Under Cause No. FC-13, Slone pled guilty to one count of Class C felony

burglary. Under Cause No. FB-15, Slone pled guilty to two counts of Class C felony

burglary. In exchange for Slone’s guilty pleas, the State agreed to dismiss all remaining

charges under both Cause No. FC-13 and Cause No. FB-15. Pursuant to the terms of the plea

agreement, sentencing was left to the discretion of the trial court.

       On December 19, 2013, the trial court sentenced Slone to a term of eight years for

each of the Class C felony burglary counts to which Slone pled guilty. The trial court

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specifically found that Slone’s criminal actions did not arise out of a single episode of

criminal conduct and ordered that the sentences for each of the counts “shall run consecutive

to one another,” for an aggregate term of twenty-four years of incarceration. Appellant’s

App. p. 91. This appeal follows.

                             DISCUSSION AND DECISION

       Slone contends that the trial court abused its discretion in sentencing him to an

aggregate term of twenty-four years. Specifically, Slone claims that the burglaries arose from

a single episode of criminal conduct, and, as a result, his sentence should have been limited

to no more than ten years. Alternatively, Slone claims that even if all three of the burglaries

did not arise from a single episode of criminal conduct, his aggregate sentence should have

been limited to eighteen years because the April 23, 2013 and May 4, 2013 burglaries arose

from a single episode of criminal conduct as they were of a relatively close temporal

proximity.

       In general, a trial court cannot order consecutive sentences in the absence of express

statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006). “‘A sentence that is

contrary to or violative of a penalty mandated by statute is illegal in the sense that it is

without statutory authorization.’” Id. (quoting Rhodes v. State, 698 N.E.2d 304, 307 (Ind.

1998)). “An appellate claim of sentencing error is subject to review for abuse of trial court

discretion; reversal results ‘only if there has been a manifest abuse of discretion.’” Reynolds

v. State, 657 N.E.2d 438, 440 (Ind. Ct. App. 1995) (quoting Fugate v. State, 608 N.E.2d

1370, 1374 (Ind. 1993)).

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       Indiana Code section 35-50-1-2(c)(2) provides that except for statutory 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 term “‘episode of

criminal conduct’ means offenses or a connected series of offenses that are closely related in

time, place, and circumstance.” Ind. Code § 35-50-1-2(b).

       In determining whether multiple offenses constitute an episode of criminal
       conduct, the focus is on the timing of the offenses and the simultaneous and
       contemporaneous nature, if any, of the crimes.” [Reed, 856 N.E.2d at 1200].
       “[A]dditional guidance on the question” can be obtained by considering
       “whether ‘the alleged conduct was so closely related in time, place, and
       circumstance that a complete account of one charge cannot be related without
       referring to the details of the other charge.’” Id. (quoting O’Connell v. State,
       742 N.E.2d 943, 950-51 (Ind. 2001)).

Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008). “Whether certain offenses

constitute a ‘single episode of criminal conduct’ is a fact-intensive inquiry” to be determined

by the trial court. Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002).

       The burglaries at issue in the instant matter were not simultaneous or continuous. The

factual basis provided by Slone at the guilty plea hearing demonstrates that Slone broke and

entered into the building or structure of Hobbs with the intent to commit theft on December

17, 2012; the garage of Walker with the intent to commit theft on April 23, 2013; and the

building or structure of Hunter on May 4, 2013. (Tr. 17-18) The first and second burglaries

were separated by approximately four months, and the second and third burglaries were


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separated by a few weeks. The trial court took the separation in time under consideration at

sentencing, finding that “while there are common elements between the crimes committed,

they are separate distinct crimes committed over a period of approximately six (6) months.

Therefore, the Court [found] they did not occur or arise out of a single episode of criminal

conduct.” Appellant’s App. p. 91. We agree with the trial court’s determination that the

burglaries did not arise from a single episode of criminal conduct as the burglaries were not

of a simultaneous or contemporaneous nature.

       Furthermore, we are unpersuaded by Slone’s assertion that the fact that the State

sought to join Cause Nos. FC-13 and FB-15 for trial purposes indicates that Slone’s crimes

arose from a single episode of criminal conduct. Indiana Code section 35-34-1-9(a) provides

that two or more offenses “may be joined in the same indictment or information … when the

offenses: (1) are of the same or similar character, even if not part of a single scheme or plan;

or (2) are based on the same conduct or on a series of acts connected together or constituting

parts of a single scheme or plan.” (Emphasis added). “Offenses may be sufficiently

‘connected together’ to justify joinder under subsection [Indiana Code section 35-34-1-

9(a)(2)] ‘if the State can establish that a common modus operandi linked the crimes and that

the same motive induced that criminal behavior.’” Craig v. State, 730 N.E.2d 1262, 1265

(Ind. 2000) (quoting Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145 (Ind. 1997)).

       Before Slone decided to plead guilty, the State moved to join Cause Nos. FC-13 and

FB-15 for trial. In requesting that Cause Nos. FC-13 and FB-15 be joined for trial, the State

argued that the burglaries displayed a common modus operandi. The State did not argue that

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the burglaries arose out of a single episode of criminal conduct. We have previously stated

that while the phrase “episode of criminal conduct” may involve somewhat similar language

to Indiana Code section 35-34-1-9(a), “we decline to conflate the ‘episode of criminal

conduct’ analysis for sentencing defendants with the ‘single scheme or plan’ analysis for

charging them.” State v. Dixon, 924 N.E.2d 1270, 1273 n.4 (Ind. Ct. App. 2010 (citing

Deshazier v. State, 877 N.E.2d 200, 213 n. 12 (Ind. Ct. App. 2007) (declining to apply

“single scheme or plan” analysis to consecutive sentencing case), trans. denied). Keeping the

distinction between Indiana Code section 35-50-1-2(c)(2) and Indiana Code section 35-34-1-

9(a)(2) in mind, we conclude that the fact that the State sought to join the charges for trial

does not prove that Slone’s criminal actions arose out of a single episode of criminal conduct.

         In sum, we conclude that the trial court did not abuse its discretion in sentencing

Slone.

         The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.




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