MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           Jan 29 2016, 6:45 am
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
Romy N. Elswerky                                         Gregory F. Zoeller
Gibson Law Office                                        Attorney General of Indiana
Lafayette, Indiana
                                                         Jonathan R. Sichtermann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony L. Hall,                                         January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1504-CR-254
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Randy J. Williams, Judge
                                                         Trial Court Cause No.
                                                         79D01-1412-F4-4



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016        Page 1 of 8
[1]   Anthony L. Hall was convicted after a bifurcated trial of five counts of

      possession of a firearm by a serious violent felon (“SVF”),1 each as a Level 4

      felony, and was found to be a habitual offender. He was subsequently

      sentenced to an aggregate sentence of twenty-one years. Hall appeals, raising

      the following restated issues for our review:


                 I. Whether the trial court abused its discretion when it sentenced
                 him for his five convictions of possession of a firearm by a SVF
                 and a habitual offender enhancement; and


                 II. Whether the trial court properly attached the habitual
                 offender enhancement to the sentence for Count I.


[2]   We affirm and remand.


                                       Facts and Procedural History
[3]   On December 4, 2014, Jeffrey Pruitt reported to the police that a burglary had

      occurred at his residence. When the police arrived at Pruitt’s home, they asked

      him to check the residence to ascertain what had been taken. Pruitt reported

      that the burglar had taken five firearms from the home, as well as other items.


[4]   A few hours later, officers were dispatched to the parking lot of a Wal-Mart in

      Lafayette, Indiana on a report of a gunshot being fired in a parked van. Police

      located the van and ordered the two occupants to exit the vehicle. Hall, who




      1
          See Ind. Code § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016   Page 2 of 8
      had been in the driver’s seat, gave consent for the officers to search the van.

      During the search, the police found five firearms that matched the descriptions

      of the firearms that Pruitt had reported stolen from his home during the

      burglary.


[5]   The State charged Hall with five counts of possession of a firearm by a SVF,

      each as a Level 4 felony, one count of burglary as a Level 4 felony, and one

      count of theft as a Level 6 felony. The State also alleged Hall to be a habitual

      offender. A jury trial was held, and the jury acquitted Hall on the burglary and

      theft charges, but found that he had possessed the five firearms; during the

      second phase of the trial, the trial court convicted Hall of five counts of

      possession of a firearm by a SVF. The trial court also found Hall to be a

      habitual offender. At the sentencing hearing, the trial court ordered Hall to

      serve nine years for each of his five convictions for Level 4 felony possession of

      a firearm by a SVF, all to run concurrent with each other. The trial court also

      ordered Count I to be enhanced by an additional twelve years for the habitual

      offender finding, resulting in an aggregate sentence of twenty-one years. In its

      sentencing order, the trial court ordered that “the sentence for Count I is

      enhanced by a period of twelve (12) years based on Count VIII, the Habitual

      Offender sentencing enhancement.” Appellant’s App. at 49. In the next

      paragraph, the trial court further ordered that “said sentences in Counts I, II,

      III, IV, and V shall run concurrently to each other and consecutive to Count

      VIII for a total sentence of twenty-one (21) years.” Id. Hall now appeals.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016   Page 3 of 8
                                        Discussion and Decision

                                          I. Abuse of Discretion
[6]   Sentencing decisions are within the discretion of the trial court and are

      reviewed on appeal 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 if the 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. (quoting K.S. v. State, 849 N.E.2d 538,

      544 (Ind. 2006)). A trial court may abuse its discretion (1) by failing to issue a

      sentencing statement or (2) by issuing a sentencing statement that bases a

      sentence on reasons that are not clearly supported by the record; omits reasons

      both advanced for consideration and clearly supported by the record; or

      includes reasons that are improper as a matter of law. Id. at 490-91.


[7]   Hall argues that the trial court abused its discretion in sentencing him because

      the sentence given was “unduly harsh and manifestly unreasonable.”2

      Specifically, Hall contends that his sentence was an abuse of discretion because

      the trial court used his criminal history to justify elevating his sentences for the




      2
        To the extent that Hall is arguing that his sentence is manifestly unreasonable, we note that that is no longer
      the standard Indiana courts apply when reviewing a sentence. Orta v. State, 940 N.E.2d 370, 379 n.7 (Ind. Ct.
      App. 2011). Instead, the applicable standard we now use is whether the sentence is inappropriate in light of
      the nature of offense and the character of the offender under Indiana Appellate Rule 7(B). Id. However, Hall
      does not make a showing under the current standard. He has, therefore, waived any argument that his
      sentence is inappropriate for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8); Perry v.
      State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016               Page 4 of 8
      Level 4 felony possession of a firearm by a SVF to nine years, which is above

      the advisory sentence. Hall asserts that this was an abuse of discretion because

      the trial court also used his criminal history to enhance his sentence when it

      found him to be a habitual offender and sentenced him to an additional twelve

      years. He, therefore, claims that it was improper for the trial court to use his

      criminal history to both impose a sentence above the advisory and to enhance

      his sentence as a habitual offender. Hall further argues that the trial court failed

      to reasonably articulate why it imposed his sentence.


[8]   Here, Hall was convicted of five counts of Level 4 felony possession of a

      firearm by a SVF. “A person who commits a Level 4 felony shall be

      imprisoned for a fixed term of between two (2) and twelve (12) years, with the

      advisory sentence being six (6) years.” Ind. Code § 35-50-2-5.5. In sentencing

      Hall, the trial court found as aggravating factors that he “has a criminal history,

      . . . was on probation at the time of the instant offense was committed [sic],

      twelve (12) Petitions to Revoke were filed with four (4) having been found true

      and two (2) pending, and that previous attempts at rehabilitation have failed.”

      Appellant’s App. at 47-48. It found as a mitigating factor that Hall had family

      support. Id. at 47. Finding that the aggravating factors outweighed the

      mitigating factors, the trial court sentenced Hall to nine years for each of his

      convictions and ordered them to run concurrently. Additionally, in

      determining that Hall was a habitual offender, the trial court used convictions

      that were part of Hall’s criminal history as support for the habitual offender

      finding.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016   Page 5 of 8
[9]    Initially, to the extent that Hall is arguing that the trial court abused its

       discretion when it sentenced him to nine years for each of his convictions for

       possession of a firearm by a SVF instead of the six-year advisory sentence, this

       argument has been waived as any alleged error was invited error. Under the

       invited error doctrine, “‘a party may not take advantage of an error that [he]

       commits, invites, or which is the natural consequence of [his] own neglect or

       misconduct.’” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). At the

       sentencing hearing in the present case, Hall’s counsel requested that the trial

       court “order a nine (9) year sentence on the Counts I, II, III, IV and V.” Tr. at

       290. Because Hall specifically requested a nine-year-sentence, any alleged error

       was invited, and such error is not available for review. See Wright, 828 N.E.2d

       at 907.


[10]   Further, as to Hall’s argument that the trial court abused its discretion in

       sentencing him when it used his criminal history to both order a sentence above

       the advisory and to support a habitual offender enhancement, we find no merit.

       The criminal sentencing scheme was amended by the General Assembly in

       2005 to replace the old presumptive sentence scheme with the current advisory

       sentence scheme. Pedraza v. State, 887 N.E.2d 77, 79 (Ind. 2008). Under the

       2005 statutory changes, trial courts no longer “enhance” sentences upon finding

       aggravators; instead, a trial court can impose any sentence within the statutory

       range set for the crime, “regardless of the presence or absence of aggravating

       circumstances or mitigating circumstances.” Id. at 79, 80. Therefore, when a

       trial court uses the same criminal history as an aggravator and as support for a


       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016   Page 6 of 8
       habitual offender finding, it does not constitute impermissible double

       enhancement of the offender’s sentence. Id. at 80.


[11]   Hall also contends that the trial court abused its discretion because it failed to

       provide a sufficient explanation as to why it imposed his sentence. We

       disagree. In its sentencing order, the trial court stated that it found the fact that

       Hall had family support to be a mitigating factor. It then found as aggravating

       factors that Hall “has a criminal history, . . . was on probation at the time of

       the instant offense was committed [sic], twelve (12) Petitions to Revoke were

       filed with four (4) having been found true and two (2) pending, and that

       previous attempts at rehabilitation have failed.” Appellant’s App. at 47-48. We

       conclude that the trial court provided “a reasonably detailed recitation of the

       reasons for the sentence imposed.” See Suding v. State, 945 N.E.2d 731, 739

       (Ind. Ct. App. 2011), trans. denied. The trial court did not abuse its discretion in

       sentencing Hall.


                            II. Habitual Offender Enhancement
[12]   Hall contends that the trial court improperly sentenced him when it imposed his

       sentence for the habitual offender enhancement. He claims that the trial court

       erred in ordering the sentence for his habitual offender finding to run

       consecutive to his other concurrent nine-year sentences. Hall alleges that this

       essentially sentenced him to an additional sentence for being a habitual

       offender, which the trial court was not permitted to do.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016   Page 7 of 8
[13]   Habitual offender is a status that results in an enhanced sentence. Ind. Code §

       35-50-2-8(j). A habitual offender finding does not constitute a separate crime

       nor does it result in a separate sentence. Davis v. State, 935 N.E.2d 1215, 1218

       (Ind. Ct. App. 2010), trans. denied. When imposing a habitual offender

       enhancement, the trial court is required to “‘attach the habitual offender

       enhancement to the felony conviction with the highest sentence imposed and

       specify which felony count is being enhanced.’” State v. Arnold, 27 N.E.3d 315,

       321 (Ind. Ct. App. 2015) (quoting Ind. Code § 35-50-2-8(j)), trans. denied.


[14]   In the present case, the trial court ordered that Hall’s sentence for Count I be

       enhanced by twelve years based on the habitual offender finding. Appellant’s

       App. at 49. Therefore, the trial court properly treated the habitual offender

       status as an enhancement, attached it to a single conviction, and specified to

       which conviction it was attached as it was required to do under Indiana Code

       section 35-50-2-8. However, the next paragraph of the sentencing order stated

       that the “sentences in Counts I, II, III, IV and V shall run concurrent to each

       other and consecutive to Count VIII for a total sentence of twenty-one (21)

       years.” Id. We find this additional language to be a misstatement and remand

       to the trial court for a new sentencing order that does not include such

       language.


[15]   Affirmed and remanded.


[16]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-254 | January 29, 2016   Page 8 of 8
