MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Mar 28 2018, 6:23 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Caryn N. Szyper
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Zackery Daniel Fairfield,                                March 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A02-1708-CR-1824
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable James K.
Appellee-Plaintiff                                       Muehlhausen, Judge
                                                         Trial Court Cause No.
                                                         09D01-1312-FD-377



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1708-CR-1824 | March 28, 2018    Page 1 of 5
[1]   Zackery Fairfield appeals the six-year sentence he received after pleading guilty

      to Check Fraud,1 a Class D Felony, and Theft,2 a Class D Felony. Fairfield

      argues that the trial court imposed an illegal sentence when it ordered

      consecutive sentences for two non-violent Class D felonies. Finding that the

      sentence was not illegal, we affirm.


                                                       Facts
[2]   Beginning in October 2013, Fairfield wrote bad checks to Pizza Hut on fifteen

      different occasions. Each time, the food was delivered to the same address and

      was purchased with checks from the same account.


[3]   On December 12, 2013, the State filed a sixteen-count information against

      Fairfield, charging him with one count of Class D felony check fraud and

      fifteen counts of Class D felony theft. On April 20, 2017, Fairfield pleaded

      guilty to one count of Class D felony check fraud and one count of Class D

      felony theft in exchange for the dismissal of the other charges and an agreement

      not to pursue an habitual offender enhancement.3


[4]   Pursuant to the plea agreement, which left sentencing open to the trial court, on

      August 3, 2017, Fairfield was sentenced to three years incarceration on each




      1
          Ind. Code § 35-43-5-12(b)(1)(A).
      2
          I.C. § 35-43-4-2(a).
      3
       The record reveals that the lengthy delay between the charges and the plea agreement was due in part to a
      continuance, multiple arrests and incarceration.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1708-CR-1824 | March 28, 2018            Page 2 of 5
      count. The trial court ordered that the sentences be served consecutively, for an

      aggregate sentence of six years. Fairfield was also ordered to pay restitution to

      Pizza Hut in the amount of $1,263.00. Fairfield now appeals.


                                   Discussion and Decision
[5]   Fairfield’s sole contention on appeal is that the trial court erred by imposing

      consecutive sentences for two Class D felonies, totaling six years of

      incarceration. He argues that the crimes constituted a single episode of criminal

      conduct and requires a sentence cap of four years. We disagree.


[6]   At the time Fairfield committed his offenses, Indiana Code section 35-50-1-2

      provided:


              [E]xcept 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.


      Because theft and check fraud are not listed as “crimes of violence,” Fairfield’s

      crimes are subject to a statutory cap if they arise from a single episode of

      criminal conduct.


[7]   Whether multiple offenses constitute a single episode of criminal conduct is a

      factually sensitive inquiry to be made by the trial court. Schlichter v. State, 779

      N.E.2d 1155, 1157 (Ind. 2002). A single episode of criminal conduct means

      “offenses or a connected series of offenses that are closely related in time, place,

      Court of Appeals of Indiana | Memorandum Decision 09A02-1708-CR-1824 | March 28, 2018   Page 3 of 5
      and circumstance.” I.C. § 35-50-1-2(b). In conducting analysis, the focus is on

      the timing of the offenses and the simultaneous and contemporaneous nature of

      the crimes. Reed v. State, 856 N.E.2d 1189, 1200-01 (Ind. 2006).


[8]   While Fairfield’s crimes were similar in nature, they occurred over a period of

      approximately twenty days. Fairfield’s theft conviction stems from the bad

      check he wrote to Pizza Hut on October 12, 2013, and the check fraud

      conviction is a result of the bad checks he wrote to Pizza Hut from November

      1, 2013, through November 17, 2013. Although Pizza Hut was the sole victim,

      each episode involved a different amount of money, occurred on different days,

      and were separated by nearly one month. Fairfield’s actions were not

      “simultaneous” or “contemporaneous” in nature and they constituted distinct

      episodes of criminal conduct. See, e.g., Gootee v. State, 942 N.E.2d 111, 114-115

      (Ind. Ct. App. 2011) (holding that defendant’s offenses did not constitute a

      single episode of criminal conduct where forgery-fraud incidents all occurred

      within a period of two days, at the same location, and involved the same

      victim).


[9]   Because Fairfield’s criminal conduct occurred at separate times and involved

      separate amounts of money, the crimes did not constitute a single episode of

      criminal conduct. Under these circumstances, we find that the trial court did

      not err by imposing consecutive sentences for two Class D felonies.




      Court of Appeals of Indiana | Memorandum Decision 09A02-1708-CR-1824 | March 28, 2018   Page 4 of 5
[10]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1708-CR-1824 | March 28, 2018   Page 5 of 5
