MEMORANDUM DECISION                                                        FILED
                                                                      Jun 15 2016, 8:04 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      CLERK
                                                                       Indiana Supreme Court
regarded as precedent or cited before any                                 Court of Appeals
                                                                            and Tax Court
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
Hilary Bowe Ricks                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Sculfield,                                         June 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1511-CR-1807
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1411-F2-52683



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016           Page 1 of 13
                               Case Summary and Issues
[1]   Twenty-year-old Keith Sculfield pleaded guilty to robbery resulting in serious

      bodily injury (“Count I”) and attempted robbery resulting in serious bodily

      injury (“Count II”), both Level 2 felonies. Due to double jeopardy concerns,

      the trial court only entered judgment of conviction on Count II and sentenced

      Sculfield to twenty-five years in the Indiana Department of Correction with five

      years suspended and two years of probation. Sculfield appeals his sentence,

      raising two issues for our review: (1) whether the trial court abused its discretion

      in sentencing him, and (2) whether Sculfield’s sentence is inappropriate in light

      of the nature of the offense and his character. The State cross-appeals, raising

      the sole issue of whether the trial court erred in not entering a judgment of

      conviction as to Count I. Concluding the trial court did not abuse its discretion

      and Sculfield’s sentence is not inappropriate, we affirm his sentence. However,

      because convictions on Counts I and II do not implicate the prohibition against

      double jeopardy, we reverse and remand.



                            Facts and Procedural History
[2]   On November 20, 2014, Sculfield and another individual robbed Tire and

      Wheel Service in Indianapolis. After entering the shop, Sculfield pointed a

      revolver at Bradley Brooks, the shop’s owner, and took $600 from Brooks’

      pocket; Sculfield also confronted Christina Clark, an employee of the store, and

      demanded her purse. When Clark reached for a gun under the counter,

      Sculfield shot her in the neck. Because the bullet lodged against her spine,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 2 of 13
      Clark suffered serious bodily injury and permanent disfigurement. Security

      cameras recorded the entire encounter and police officers were able to identity

      Sculfield as one of the perpetrators.


[3]   On November 24, 2014, the State charged Sculfield with Count I, robbery

      resulting in serious bodily injury, a Level 2 felony; Counts II and III, attempted

      robbery resulting in serious bodily injury, both Level 2 felonies; Count IV,

      criminal confinement, a Level 3 felony; Count V, aggravated battery, a Level 3

      felony; and Count VI, carrying a handgun without a license, a Class A

      misdemeanor. Count I of the charging information alleges,

              On or about November 20, 2014, Keith Sculfield and Cortez
              Sanders did knowingly take property, that is, U.S. currency, from
              another person or the presence of another person, that is, Bradley
              Brooks, by using force, threatening the use of force, or placing
              another person in fear, and while doing so Christina Clark
              sustained serious bodily injury, that is, a gunshot wound to neck .
              ...


      Appellant’s Appendix at 21. Count II alleges,


              On or about November 20, 2014, Keith Sculfield and Cortez
              Sanders did attempt to commit the crime of Robbery Resulting in
              Serious Bodily Injury, which is to knowingly take property from
              another person or the presence of another person by using force,
              threatening the use of force, or placing another person in fear,
              resulting in serious bodily injury to a person other than the
              defendant, by engaging in conduct, that is, pointing a handgun at
              Christina Clark and demanding her purse, that constituted a
              substantial step toward the commission of the crime of Robbery
              Resulting in Serious Bodily Injury, and resulted in serious bodily
              injury to Christina Clark, that is, gunshot wound to the neck . . . .
      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 3 of 13
      Id.


[4]   On the first day of trial, Sculfield entered into a plea agreement with the State

      and pleaded guilty to Counts I and II. In exchange for Sculfield pleading guilty,

      the State agreed to dismiss the remaining charges. The agreement left the

      sentence to the discretion of the trial court. The trial court accepted the guilty

      pleas, ordered a pre-sentence investigation report, and scheduled a sentencing

      hearing.


[5]   During the pre-sentence investigation interview, Sculfield stated he has

      regularly consumed alcohol since he was sixteen years old, marijuana since he

      was thirteen years old, and opiates since he was eighteen years old. Sculfield

      also admitted he used marijuana and opiates on a daily basis prior to his arrest

      and was under the influence of drugs when he robbed the shop. Sculfield was

      previously ordered to attend drug treatment counseling as a condition of

      probation but was ultimately terminated from the program due to his failure to

      attend. In addition, the pre-sentence investigation report indicates a lengthy

      criminal history, including five felony convictions as an adult, and numerous

      probation violations. Specifically, it indicates Sculfield violated probation in

      failing to submit to drug tests, failing to comply with substance abuse

      counseling, failing drug tests, and incurring new arrests. The report also

      indicates Sculfield has a high risk of reoffending.


[6]   At the sentencing hearing, Sculfield argued the trial court should enter

      judgment of conviction on Count I as a Level 5 felony instead of as a Level 2


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 4 of 13
      felony due to the prohibition against double jeopardy; both the trial court and

      the State agreed.1 In its sentencing statement, the trial court found, as

      mitigating circumstances, Sculfield’s acceptance of responsibility, hardship on

      his family, and his drug addiction, but gave each factor little weight. In terms

      of aggravating circumstances, the trial court noted Sculfield’s extensive criminal

      history, numerous violations of probation, and his failure to take advantage of

      opportunities to address his drug problem. The trial court concluded the

      aggravators outweighed the mitigators.


[7]   However, at no point did the trial court state it was entering a judgment of

      conviction as to either Count and the record does not contain an abstract of

      judgment. Despite these omissions, the trial court stated it intended to sentence

      Sculfield to five years in the Department of Correction on Count I, to be served

      concurrently to Sculfield’s sentence on Count II. As to Count II, the trial court

      stated it intended to sentence Sculfield to twenty-five years in the Department

      of Correction with five years suspended and two years of probation. Following

      the sentencing hearing, the trial court issued a signed sentencing order, entering

      judgment of conviction on Count II and sentencing Sculfield to twenty-five

      years in the Department of Correction with five years suspended and two years

      of probation. The sentencing order further states judgment of conviction was




      1
          The record does not indicate the State formally amended the charging information.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016    Page 5 of 13
      not entered on Count I “due to double jeopardy rule.” 2 Id. at 15. Therefore,

      the trial court only entered judgment of conviction and sentenced Sculfield on

      Count II. This appeal and cross-appeal ensued.



                                  Discussion and Decision
                                               I. Sentencing
                                       A. Standard of Review
[8]   We review a trial court’s sentencing decision for an abuse of discretion.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. An abuse of discretion occurs when the trial court’s decision is “clearly

      against the logic and effect of the facts and circumstances before the court, or

      the reasonable, probable, and actual deductions to be drawn therefrom.” Id.

      (citation omitted). A trial court may abuse its discretion in failing to enter a

      sentencing statement, finding aggravating or mitigating circumstances

      unsupported by the record, or noting reasons that are improper considerations

      as a matter of law. Id. at 490-91. However, a trial court does not abuse its

      discretion in failing to properly weigh mitigating and aggravating

      circumstances. Id. at 491.




      2
       The Chronological Case Summary also notes “Judgment of Conviction not entered on count 1 due to
      double jeopardy rule. Count 1 is proven by plea agreement as a Level 5 felony.” Appellant’s App. at 13.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016           Page 6 of 13
[9]    In addition, Indiana Appellate Rule 7(B) provides, “The Court may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, the Court finds that the sentence is inappropriate in light of the nature

       of the offense and the character of the offender.” The defendant bears the

       burden of persuading this court that his or her sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a

       sentence as inappropriate 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       Finally, we note the principal role of appellate review is to “leaven the outliers,”

       not achieve the perceived “correct” result in each case. Id. at 1225.


                    B. Aggravating and Mitigating Circumstances
[10]   Sculfield contends the trial court abused its discretion in not giving enough

       weight to certain mitigating circumstances and too much weight to certain

       aggravating circumstances. Specifically, he argues the trial court should have

       given more weight to his guilty plea, the hardship on his children, and his drug

       addiction, and additionally gave too much weight to a prior juvenile robbery

       charge. He does not argue the trial court abused its discretion in failing to

       identify certain mitigating circumstances or finding certain circumstances

       unsupported by the record. As the State correctly points out, Sculfield’s

       arguments fail because the trial court cannot abuse its discretion in failing to

       give proper weight to mitigating and aggravating circumstances. See Anglemyer,

       868 N.E.2d at 491.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 7 of 13
                                    C. Inappropriate Sentence
[11]   Sculfield further contends his sentence is inappropriate in light of the nature of

       the offense and his character. The trial court entered judgment of conviction on

       Count II, attempted robbery resulting in serious bodily injury, a Level 2 felony.

       As to the nature of the offense, the advisory sentence is the starting point the

       legislature selected as an appropriate sentence for the crime committed. Id. at

       494. Pursuant to Indiana Code section 35-50-2-4.5, “A person who commits a

       Level 2 felony shall be imprisoned for a fixed term of between ten (10) and

       thirty (30) years, with the advisory sentence being seventeen and one-half (17

       ½) years.” The trial court sentenced Sculfield to twenty-five years in the

       Department of Correction with five years suspended and two years of

       probation. We note Sculfield entered the shop carrying a revolver and

       demanded Clark hand over her purse. When Clark reached under the counter,

       Sculfield shot her in the neck and the bullet lodged against her spine causing her

       seriously bodily injury and permanent disfigurement. As the trial court stated

       at sentencing, Sculfield is “lucky” Clark survived the shooting.


[12]   As to Sculfield’s character, he was twenty years old when he committed these

       crimes, and in his short adult life, Sculfield has now been convicted of six

       felonies. Despite these numerous convictions, Sculfield has often received

       probation, which he violated multiple times. In fact, Sculfield was on probation

       at the time he committed the current offense. This complete disregard for

       authority indicates Sculfield has learned nothing from his recent encounters

       with the law and has squandered multiple opportunities to be placed on

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 8 of 13
       probation. See Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (“Probation is a

       matter of grace left to trial court discretion, not a right to which a criminal

       defendant is entitled.”). We further note Sculfield has continuously failed to

       take advantage of drug-treatment services. Cf. Bryant v. State, 802 N.E.2d 486,

       501 (Ind. Ct. App. 2004) (holding the trial court did not err in concluding the

       defendant’s substance abuse was an aggravating factor where the record showed

       he “was aware of his drug and alcohol problem, yet he had not taken any

       positive steps to treat his addiction”), trans. denied. Finally, we note Sculfield

       was previously convicted of five felonies, including residential entry,

       automobile theft, possession of cocaine, and resisting law enforcement. It is

       apparent Sculfield’s current offense represents a violent escalation in the

       seriousness of his crimes. Given Sculfield’s extensive criminal history at such a

       young age, complete disregard for authority, and inability to take advantage of

       previously lenient sentences and drug treatment services, we conclude his

       sentence is not inappropriate in light of the nature of the offense and his

       character.


                                        II. Double Jeopardy
                                       A. Standard of Review
[13]   The State contends the trial court erred as a matter of law in not entering

       judgment of conviction due to concerns of implicating double jeopardy despite

       the parties agreeing at sentencing judgment of conviction on Count I should be




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 9 of 13
       entered as a Level 5 felony.3 After accepting a plea of guilty, a trial court shall

       enter a judgment of conviction.4 Ind. Code § 35-38-1-1.


[14]   Article 1, Section 14 of the Indiana Constitution provides, “No person shall be

       put in jeopardy twice for the same offense.”


                [T]wo or more offenses are the “same offense” in violation of
                Article I, Section 14 of the Indiana Constitution, if, with respect
                to either the statutory elements of the challenged crimes or the




       3
         The State requests we remand to the trial court with instructions to enter judgment of conviction and a
       sentence on Count I. Sculfield did not file a response to the State’s cross-appeal issue. We believe the
       procedural posture of this cross-appeal is substantively equivalent to situations where an appellee does not
       provide an appellee brief. See In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). In instances where no
       answer brief is filed, the judgment may be reversed if the appellant presents a prima facie case of error. Id.
       The purpose of this rule is to relieve us from the burden of controverting arguments advanced for reversal.
       Id. Here, we are tasked with examining the State’s cross-appeal issue without the benefit of a rebuttal brief.
       Therefore, we will remand to the trial court if the State presents a prima facie case of error. See id.
       4
         In the charging information, Counts I and II were enhanced to Level 2 felonies due to the allegation
       Clark suffered serious bodily injury. Sculfield pleaded guilty to each count and the trial court accepted
       both pleas. However, at the sentencing hearing, the parties became concerned of implicating double
       jeopardy because both charges were enhanced due to the allegation Clark, and only Clark, suffered
       serious bodily injury. See Smith v. State, 872 N.E.2d 169, 177 (Ind. Ct. App. 2007) (stating “if the same
       bodily injury” is used to enhance two separate offenses, “entering judgment of conviction for both
       counts would be improper”), trans. denied. Therefore, the parties agreed at the sentencing hearing
       Sculfield would plead guilty to Count I as a Level 5 felony for knowingly taking property from Brooks
       by the use of force or by threatening the use of force thereby removing any double jeopardy concerns.
       In addition, the trial court stated during the sentencing hearing it was sentencing Sculfield on Count I
       to five years in the Department of Correction to be served concurrently with the sentence on Count II.
       However, the trial court never stated it was entering judgment of conviction on either count during the
       sentencing hearing. Rather, despite the parties’ agreement, the trial court—after accepting both pleas
       at the guilty plea hearing and adjourning the sentencing hearing without entering judgment of
       conviction on either count—issued a signed sentencing order entering judgment of conviction only on
       Count II due to concerns Count I, as a Level 5 felony, was barred by the prohibition against double
       jeopardy. As a result, the State did not have an opportunity to address the trial court’s concern that
       Count I implicated double jeopardy. In addition, the trial court did not enter an abstract of judgment.
       We take issue with the fact the trial court stated it was sentencing Sculfield on each count without first
       entering judgment of conviction on either count. The trial court has no power to enter a sentence
       without first entering judgment of conviction and therefore the trial court erred in this regard. In
       addition, we note the record does not contain an abstract of judgment, but merely a signed sentencing
       order explaining why the trial court was not entering judgment of conviction on Count I. On remand,
       the trial court is to enter a proper abstract of judgment.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016               Page 10 of 13
               actual evidence used to convict, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense.


       Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in

       original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We

       review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766

       (Ind. Ct. App. 2015).


               Under the actual evidence test, we examine the actual evidence
               presented at trial in order to determine whether each challenged
               offense was established by separate and distinct facts. To find a
               double jeopardy violation under this test, we must conclude that
               there is a reasonable possibility that the evidentiary facts used by
               the fact-finder to establish the essential elements of one offense
               may also have been used to establish the essential elements of a
               second challenged offense. The actual evidence test is applied to
               all the elements of both offenses.


       Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal

       quotation marks omitted). “In other words . . . the Indiana Double Jeopardy

       Clause is not violated when the evidentiary facts establishing the essential

       elements of one offense also establish only one or even several, but not all, of

       the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833

       (Ind. 2002).


                            B. Robbery and Attempted Robbery
[15]   Pursuant to Indiana Code section 35-42-5-1,



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 11 of 13
               A person who knowingly or intentionally takes property from
               another person or from the presence of another person:


                        (1) by using or threatening the use of force on any person;
                        or


                        (2) by putting any person in fear;


               commits robbery, a Level 5 felony. However, the offense is a
               Level 3 felony if it is committed while armed with a deadly
               weapon or results in bodily injury to any person other than a
               defendant, and a Level 2 felony if it results in serious bodily
               injury to any person other than a defendant.


       See also Ind. Code § 35-41-5-1(a) (defining attempt).


[16]   We conclude Counts I and II were established by separate and distinct facts.

       The factual basis supporting Count I was that Sculfield pointed the revolver at

       Brooks and took $600 dollars from his pocket. Count II alleged Sculfield

       attempted to take property from Clark by the use of force or by threatening the

       use of force, causing serious bodily injury to Clark. The factual basis

       supporting Count II was that Sculfield attempted to steal Clark’s purse, and in

       so doing, shot her and caused serious bodily injury. Because each count is

       supported by separate and distinct facts, we conclude the trial court erred in not

       entering judgment of conviction on Count I as a Level 5 felony.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 12 of 13
                                               Conclusion
[17]   The trial court did not abuse its discretion in sentencing Sculfield and

       Sculfield’s sentence is not inappropriate in light of the nature of the offense and

       his character. The trial court did err, however, in not entering judgment of

       conviction on Count I. Accordingly, we affirm in part, reverse in part, and

       remand with instructions the trial court enter an abstract of judgment reflecting

       entry of judgment of conviction on Counts I and II, with Count I as a Level 5

       felony, and then impose the sentence entered during the sentencing hearing.


[18]   Affirmed in part, reversed in part, and remanded with instructions.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1807 | June 15, 2016   Page 13 of 13
