MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Apr 10 2019, 9:08 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
Matthew D. Anglemeyer                                     Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Appellate Division
                                                          Samuel J. Dayton
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Patton,                                           April 10, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2045
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Grant W. Hawkins,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G05-1702-F1-6484



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019                     Page 1 of 13
                                             Case Summary
[1]   Timothy Patton (“Patton”) challenges his sentence for his convictions,

      following a bench trial, of four counts of rape, as Level 1 felonies;1 attempted

      rape, as a Level 1 felony;2 criminal confinement, as a Level 5 felony;3

      kidnapping, as a Level 5 felony;4 strangulation, as a Level 6 felony;5 domestic

      battery resulting in moderate bodily injury, as a Level 6 felony;6 and battery

      resulting in moderate bodily injury, as a Level 6 felony.7


[2]   We affirm in part, reverse in part, and remand with instructions.



                                                    Issues
[3]   Patton raises the following two restated issues:


                 I.        Whether his sentence is inappropriate in light of the nature
                           of the offenses and his character.




      1
          Ind. Code § 35-42-4-1(a) & (b).
      2
          Id.; I.C. § 35-41-5-1.
      3
          I.C. § 35-42-3-3(a) & (b)(1).
      4
          I.C. § 35-42-3-2(a) & (b)(1).
      5
          I.C. § 35-42-2-9(b).
      6
          I.C. § 35-42-2-1.3(a) & (b)(3).
      7
          I.C. § 35-42-2-1(c)(1) & (e)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 2 of 13
              II.      Whether the trial court erred when, due to double
                       jeopardy concerns, it merged two lesser-included offenses
                       rather than vacating them.


                            Facts and Procedural History
[4]   Patton and C.L. met while training at Giordano’s in April or May of 2016 and

      began dating a month or two later. In June 2016, Patton and C.L. began living

      together, and Patton began to physically abuse C.L. On June 4, 2016, Patton

      slapped and choked C.L. multiple times, leaving C.L. bruised and scratched.

      On August 7, 2016, C.L. awoke to Patton slapping her face, and Patton then

      wrapped his hands around her throat. Patton’s attack lasted approximately one

      hour. C.L. had difficulty breathing, and Patton’s attack resulted in bruises, a

      black eye, and scratches all over her face and neck. Patton attacked C.L. again

      on September 22, 2016. He slapped C.L., grabbed her by her hair, dragged her

      around, and hit and strangled her. C.L. lost consciousness for a short time. As

      a result of that attack, C.L. had a swollen face and scratch marks on her neck.


[5]   On December 11, 2016, Patton and C.L. were staying at a motel, and Patton

      attacked C.L. again. Patton returned to the motel room from a bar and banged

      on the window of the room to try to wake C.L. so that she could let him in.

      Once C.L. awoke, they argued. Patton hit and choked C.L. and attempted to

      force her to perform oral sex on him. Patton told C.L. that she was going to

      perform oral sex whether she wanted to or not and required her to remove her

      clothes. At some point police arrived at the scene, but Patton did not allow

      C.L. to get dressed when she answered the door. The police handcuffed Patton

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 3 of 13
      and instructed C.L. to get dressed. As C.L. was searching for her cell phone,

      Patton kicked her while he was still handcuffed, and she fell backwards. As a

      result of the attack, C.L. was bruised and her shirt was ripped.


[6]   C.L. did not testify against Patton regarding any of the first four attacks because

      Patton persuaded her not to do so. Thus, Patton’s charges for domestic battery,

      battery, strangulation, and criminal confinement—among other charges—that

      had been filed because of the June 2016 and September 2016 incidents were

      ultimately dismissed.


[7]   In February of 2017, Patton attacked C.L. again. On the night of February 13,

      Patton and C.L. had another argument. C.L. became uncomfortable with the

      situation and contacted the police, who arrived and suggested to Patton that he

      leave for a while. After Patton and the police left, C.L. wedged knives in the

      front door to prevent or forestall Patton’s reentry.


[8]   C.L. fell asleep and, at approximately 5:00 a.m. on February 14, she awoke to a

      loud noise. C.L. heard Patton running up the stairs. Patton entered the

      bedroom, slapped C.L.’s face, and said that she would die that day. Patton

      dragged C.L. by her hair to the front door and closed it, then dragged C.L. by

      her hair as he returned to the bedroom upstairs. Patton had a pen and told C.L.

      that he was going to shove it up her nose and into her brain to kill her. C.L.

      fought back, grabbed the pen, and threw it. When C.L. fought back, Patton hit

      her in the face and choked her. Patton continued to hit C.L., who kept trying to

      move away. Patton had what C.L. believed was a “crazy look in his face,” and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 4 of 13
      she had never seen him that way before. Tr. Vol. II at 51. Patton continued to

      tell C.L. that she was going to die that day. C.L. believed Patton was serious,

      and she was very scared. At some point during the attack, Patton placed his

      hands around C.L.’s neck and squeezed it tightly, which made it difficult for

      C.L. to breathe. C.L. blacked out multiple times during this attack, and she had

      gaps in her memory.


[9]   Patton told C.L. that she was going to perform oral sex on him and that he was

      going to have anal sex with her. After Patton’s attack turned sexual, at times he

      would force C.L. to comply by grabbing her head or hair, and at other times

      C.L. would comply so that she would not be hit again. Patton repeatedly

      forced C.L. to perform oral sex on him, and C.L. believed she had no choice

      but to comply even though she told Patton “no” many times. Id. at 55-56.

      Eventually, C.L. quit telling Patton to stop because Patton hit her every time

      she did so. Patton forced C.L. to continue with performing oral sex, including

      to the point that C.L. began choking. Patton attempted to engage in sexual

      intercourse and anal sex multiple times throughout the attack, but although

      penetration occurred, he could not keep an erection for long. Patton then

      switched to using multiple fingers to penetrate C.L.’s anus and vagina. Patton’s

      digital penetration of C.L. hurt her, and Patton told her that he wanted it to

      hurt. Patton then forced C.L. to lick his fingers. Patton also forced C.L. to

      perform oral sex on his anus, and C.L. complied so that she would not be hit

      again.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 5 of 13
[10]   Eventually, C.L. told Patton that she needed to use the bathroom. Patton

       allowed her to do so but said, “Bitch, don’t worry about gettin’ dressed … cause

       I’m not done with you yet.” Id. at 63. C.L. went to the bathroom, put on a t-

       shirt, ran down the stairs, and fled to a nearby gas station where she called 9-1-

       1. From a window Patton observed C.L. heading toward the gas station, and

       he went after her. He caught up with her as she was on the phone with 9-1-1,

       but he left when he realized she was speaking to the police. Patton returned to

       the house and hid because he knew that he had an outstanding warrant issued

       in the cause arising out of his December attack on C.L.


[11]   When the police arrived at the gas station at approximately 8:00 a.m., the

       officers took photographs of C.L. and went with her back to the house. Officer

       Nicholas Snow observed blood on the mattress when he entered the room. The

       police found Patton hiding underneath a couch. When Patton made a

       movement towards his waistband, the canine unit present on the scene bit him.

       Patton was transported to the hospital to treat the bite wound.


[12]   C.L. was taken to St. Francis Hospital, where she was examined by Caroline

       Fisher (“Fisher”), a nurse with special training and experience in sexual assault

       cases. Fisher observed that C.L. had suffered multiple abrasions and bruises to

       her face, perforation of her eardrum, blood in her right ear, bleeding and

       bruising behind her left ear, bruising and abrasions to her neck such that there

       were too many to document separately, bruises and scratches on her chest and

       back, lacerations on her anus, and lacerations, a blood blister, and brown

       patches with multiple areas of broken blood vessels in and on her vagina and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 6 of 13
       cervix consistent with blunt-force trauma. Fisher could not complete a full

       exam of C.L.’s cervix because C.L. was in too much pain, which is rare in

       Fisher’s experience. Fisher explained at trial that the bruising behind C.L.’s left

       ear was a “battle sign;” that is, it was an injury that occurs when there has been

       damage to the tendon in the neck. Tr. Vol. II at 119-20. Fisher testified that

       victims of sexual assault often do not have visible signs of injury, but she

       explained that C.L. did have such signs on and in her vagina and in her anus.

       Fisher also testified that C.L. had injuries “consistent with being strangled” and

       that strangulation can lead to death. Id. at 120.


[13]   The State charged Patton as follows: Counts I-VI, rape; Count VII, attempted

       rape; Count VIII, criminal confinement; Count IX, kidnapping; Count X,

       strangulation; Count XI, domestic battery resulting in moderate bodily injury;

       and Count XII, battery resulting in moderate bodily injury. Patton waived a

       jury trial, and his bench trial took place on July 16, 2018. The trial court found

       Patton not guilty on counts III and IV, but “guilty as charged” on all other

       counts. Tr. Vol. II at 205.


[14]   At the conclusion of the sentencing hearing, the trial court stated, “[r]egarding

       all counts, I’m going to impose the advisory sentence.” Id. at 219. The court

       therefore imposed a thirty-year sentence on each of the Level 1 felony counts,

       i.e., Counts I, II, V – VII. The court stated, “Count 8, Count 9, the sentence

       will be three years. Count 10, Count 11, Count 12, the sentence will be one

       year. … [S]how the sentence for Count 8 is merged with the sentences for 1, 2,

       4 [sic], 5, and 6. … Show that Count 12 is merged into Count 11.” Id. The

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 7 of 13
       Sentencing Order, Abstract of Judgment, and Chronological Case Summary

       (“CCS”) all state that the dispositions for Counts VIII and XII are “conviction

       merged.” App. at 11-12; 14; 18. The court suspended ten years from three of

       the rape counts and ordered that those three counts be served consecutively.

       All other sentences were to run concurrently. The trial court also sentenced

       Patton to ten years of probation with sex offender probation for the first three of

       those years. This appeal ensued.



                                  Discussion and Decision
                                         Appellate Rule 7(B)
[15]   Patton maintains that his sentence is inappropriate in light of the nature of the

       offense and his character. Article 7, Sections 4 and 6, of the Indiana

       Constitution authorize independent appellate review and revision of a trial

       court’s sentencing order. E.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind.

       2018). This appellate authority is implemented through Indiana Appellate Rule

       7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to

       demonstrate that his sentence is inappropriate in light of the nature of his

       offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866

       N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or

       non-recognition of aggravators and mitigators as an initial guide to determining

       whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d

       142, 147 (Ind. Ct. App. 2006). We consider not only the aggravators and

       mitigators found by the trial court, but also any other factors appearing in the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 8 of 13
       record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans.

       denied. It is the defendant’s burden to “persuade the appellate court that his or

       her sentence has met th[e] inappropriateness standard of review.” Roush v.

       State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). And the

       defendant “bears a particularly heavy burden in persuading us that his sentence

       is inappropriate when the trial court imposes the advisory sentence.” Fernbach

       v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.


[16]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the end

       of the day turns on “our sense of 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. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 9 of 13
[17]   We begin by noting that Patton was only given the advisory sentence for every

       crime for which he was convicted, and the advisory sentence “is the starting

       point the Legislature selected as appropriate for the crime committed.” Fuller v.

       State, 9 N.E.3d 653, 657 (Ind. 2014). Moreover, the nature of his offenses was

       severe, brutal, cruel, and prolonged. They were not accompanied by any show

       of “restraint” on his part, Stephenson, 29 N.E.3d at 122, and they resulted in

       severe injury to C.L., Cardwell, 895 N.E.2d at 1224. His sentence is not

       inappropriate in light of the nature of his offenses.


[18]   Nor does Patton’s character support a sentence revision. He has a criminal

       history, which includes convictions of crimes of violence, such as assault on a

       police officer. Moreover, C.L. testified that Patton had assaulted and injured

       her on at least four occasions prior to the violent crimes of which he was

       convicted in this case, and pictures of her prior injuries were admitted into

       evidence. In addition, at the time he committed the crimes in the instant case,

       Patton had a warrant out for his arrest due to a pretrial release violation related

       to the charges pending against him for the December 2016 incident with C.L.

       See I.C. § 35-38-1-7.1(a)(6) (providing that a court may consider recently

       violated conditions of pretrial release as an aggravating circumstance). All of

       those circumstances reflect poorly on Patton’s character, and he has failed to

       carry his heavy burden of persuading us that his advisory sentences are

       inappropriate. Fernbach, 954 N.E.2d at 1089.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 10 of 13
                                             Double Jeopardy
[19]   Patton contends that the trial court violated his state constitutional right to be

       free from double jeopardy8 when it entered judgments of conviction against him

       for both his Level 1 felony rape charges (Counts I, II, V, VI) and his criminal

       confinement charge (Count VIII), and for both his domestic battery charge

       (Count XI) and his battery charge (Count XII). Whether multiple convictions

       violate double jeopardy is a question of law which we review de novo. Bennett

       v. State, 5 N.E.3d 498, 515 (Ind. Ct. App. 2014), trans. denied.


[20]   Entry of conviction for both an offense and its lesser-included offenses “is

       impermissible under both state and federal double jeopardy rules.” Wentz v.

       State, 766 N.E.2d 351, 359 (Ind. 2002). The trial court held, and the parties do

       not dispute, that Patton’s Count VIII criminal confinement charge was a lesser-

       included offense of his rape charges, and that his Count XII battery charge was

       a lesser-included offense of his domestic battery charge. Therefore, principles of

       double jeopardy prohibit Patton’s conviction and sentencing for Counts VIII

       and XII. Id.


[21]   However, the parties disagree about whether or not the trial court actually

       entered convictions and sentences for Counts VIII and XII. We have

       previously held that,




       8
         Article 1, Section 14 of the Indiana Constitution provides: “No person shall be put in jeopardy twice for
       the same offense.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019                  Page 11 of 13
               [i]f a trial court does not formally enter a judgment of conviction
               on a [finding] of guilty, then there is no requirement that the trial
               court vacate the conviction, and merger is appropriate [for
               purposes of double jeopardy]. However, if the trial court does
               enter judgment of conviction on a [guilty finding], then simply
               merging the offenses is insufficient and vacation of the offense is
               required.


       Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (quotations and

       citations omitted); see also Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)

       (quotation and citation omitted) (“[A] merged offense for which a defendant is

       found guilty, but on which there is neither a judgment nor a sentence, is

       unproblematic as far as double jeopardy is concerned.”). Thus, if the trial court

       did not enter a judgment of conviction or a sentence on Counts VIII and XII,

       then it did not err in merging those two counts rather than vacating them.


[22]   In reviewing sentences in non-capital cases, we “examine both the written and

       oral sentencing statements to discern the findings of the trial court,” and we

       have “the option of crediting the statement that accurately pronounces the

       sentence.” Berry v. State, 23 N.E.3d 854, 857 (Ind. Ct. App. 2015), trans. denied.

       Here, in its oral statement at the sentencing hearing, the trial court specifically

       stated that it imposed the advisory sentences for Counts VIII and XII, along with

       the other counts for which Patton was found guilty. Tr. at 219. It then stated

       that those sentences were merged with other sentences. Id.; see also Tr. at 207

       (emphasis added) (court stating regarding count VIII that “he’s convicted, but the

       sentence certainly would have to be merged”). And the written Sentencing

       Order, CCS, and Abstract of Judgment, all state that the convictions for Counts

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 12 of 13
       VIII and XII are merged. App. at 11-12; 14; 18. Thus, it appears that the trial

       court actually convicted and sentenced Patton for Counts VIII and XII before

       “merging” them. That was error; because the court entered convictions and

       sentences for those counts, double jeopardy principles require they be vacated

       rather than merged. Kovats, 982 N.E.2d at 414-15.



                                               Conclusion
[23]   Patton’s sentence is not inappropriate given the nature of his offenses and his

       character. However, the trial court erred when it merged, rather than vacated,

       Patton’s convictions for Counts VIII and XII. Therefore, we reverse those

       convictions and remand with instructions to the trial court to vacate them.


[24]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2045 | April 10, 2019   Page 13 of 13
